Michael Detmold: The Monarch in the Room

(Let’s be clear. Why is an Australian constitutional lawyer writing about the UK Constitution? It’s simple. She’s our Queen, too.)

The Court in Miller/Cherry (at 35) distinguished between the question ‘whether a prerogative power exists’ and ‘whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis’. ‘The first of these issues’, it continues, ‘undoubtedly lies within the jurisdiction of the courts and is justiciable’, whereas ‘the second … may raise questions of justiciability’. But the distinction does not hold. Consider the following:

The executive (upon the Queen’s acceptance of its advice) has the prerogative power to prorogue but not to the point where it shuts Parliament down (the limit of the power),
The executive (upon …) has the prerogative power to prorogue but not to the point where it unreasonably shuts Parliament down (the limit of the power),
The executive (upon …) has the prerogative power to prorogue but not for an improper purpose such as unreasonably shutting Parliament down (a question of justiciability within the power).

Now, obviously the first is nonsense: shutting down Parliament is what proroguing does. So, for sense, the qualification in 2 (‘unreasonably’ or something like it) is necessary. But now, what is the difference between 2 and 3? There is none. And so the Court’s distinction fails to avoid the question of the justiciability of purpose; it must deal with the problem that since the executive is a political entity its purposes will be political. The Court will be required to say that there are some political purposes that are acceptable and others that are not (which is, of course, the problem of justiciability).

But the Court has an interesting means of escaping the horns of its dilemma (at 30):

It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept [the Prime Minister’s] advice. In the circumstances, we express no view on that matter. That situation does, however, place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.

If the Queen were a mere cipher, the Prime Minister’s decision would be entirely his own, and, his office being a political one, his decision would be entirely political. In that situation, what possible ground would the Court have to impose on him a duty of impartiality between ‘all relevant interests, including the interests of Parliament’? This imposition is commonly made in administrative law, but the Prime Minister and Government are not mere administrators – to treat them as such would be a gross constitutional error.

Now, it is also the case that the Queen is not a mere cipher, and so the decision to prorogue is the kind of joint one implied by the phrase ‘the Queen’s Government’. At first glance the Supreme Court’s reasoning seems to be the error I have just described. But there is a better interpretation. Is it not a constitutional impropriety for the Prime Minister to require the Queen (in their joint decision) to act in a way that betrays her constitutional impartiality. I think what the Court may be getting at here, is that the impartiality between interests that we might expect from the Queen herself (if we could look into her decision, which we can’t) falls upon her advisor.

Most of the rest of the reasoning in Miller/Cherry turns a blind eye to the reality of the Queen (as does constitutional thought in general), and works on the basis that the Prime Minister’s advice should be considered in isolation: though she is said to be in the constitutional room her presence is ignored. Judges when they do this, have the intention of protecting the Queen from inquiry, but all they really do is demean her office. She is a constitutional monarch, not a mere cipher: she will, of course, ordinarily accept advice in a routine way, but in certain circumstances where an issue is controversial, she will question it, and in very rare circumstances she might reject it. And even if it turns out that she doesn’t, the very possibility is salutary to any Prime Minister.

That the Queen is a constitutional monarch and therefore impartial between her subjects, their political parties, and between ‘all relevant interests, including the interests of Parliament’ (quote from Miller/Cherry) was explained by Bagehot (The English Constitution, ch III 1867):

The nation is divided into parties, but the crown is of no party. Its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties – to be a visible symbol of unity ….

The Queen’s affective power, which might be called disinterested concern, is the state’s underpinning in trust. And it is a democratic underpinning. As has been shown time and time again in post-colonial states, democracy fails without an historical foundation of trust. In the United Kingdom that trust resides substantially in the constitutional Queen herself.

And this trust adheres to the Prime Minister’s prerogative power, in that the Queen is inherent in his office. And that is why it would be a constitutional impropriety for the Prime Minister to require the Queen to act in a way that betrays her constitutional impartiality. This holding is a very radical move by the Court, but a very welcome one. The essence of the Queen’s constitutional power is impartiality; the essence of the Court’s (common law) power is the same thing. The constitutional monarch now has her voice in the courts.

The British constitutional monarchy is much more than the remnants of an ancient brute monarchy: it is an idea – an essentially republican idea – an idea of genius – and should be celebrated, not hidden.

…………………

The phrase ‘sovereignty of Parliament’ causes much confusion when its composite nature is not recognised. Parliament consists of two sovereign powers, the legislature and the executive, and a third, that of the Queen, which underpins, and gives legitimacy to both. Lord Browne-Wilkinson’s observation in the Fire Brigades Union case (at 552) is often quoted (and was in Miller/Cherry) ‘the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body’. But this distorts rather than illuminates. And it does this in two ways.

First, the legislature is only part of the sovereign body, Parliament. The executive also has its home in Parliament. While the prerogative powers of the Crown were becoming subject to the overriding powers of the democratically elected legislature they were also coming to be the prerogative powers of the modern executive, in which the Crown if it acts at all acts on advice. A remarkable history, no doubt, but in both cases – why should the modern executive power in itself be accorded no part in that history? Of course, the legislature does have power to control the executive power by changing the law that applies to it, for example, the conditions of its liability to suit by citizens. But this liability is as much an executive concern as legislative; liability to suit for malfeasance is a positive desideratum for any lawful executive power. In no sense is such a law a sovereign imposition upon the executive power; in the modern composite Parliament it is an example of the two powers co-operating to produce the whole sovereignty. The mistake of according sovereign subservience to the executive power is most often expressed in the power of Parliament to form and dismiss governments; but that is an ultimate executive power – it is absurd to regard it as legislative.

The second distortion is subtler. It is true, of course, that the significance of the brute monarch was being overcome in the history that Lord Browne-Wilkinson refers to. But it was also the case that the significance of the constitutional monarch was growing: it is an error to think of the latter as the mere remnant of the former.

………………..

Where will the Court’s adventure in Miller/Cherry lead it?

The European Union (Withdrawal) (No 2) Act 2019 requires the Prime Minister to write a prescribed letter to the EU seeking an extension of the Brexit process. There are reasons to think that this letter represents an abuse of the relation between the Parliament and the executive (Detmold, “The Unconstitutional Brexit Letter”). Will the Court hold of the legislature, as it held of the Prime Minister, that it has ‘a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament’ (Miller/Cherry 30)? Except for those who fallaciously identify Parliament with the legislature, the ‘relevant interests … of Parliament’ include the interests of the executive power not to be abused.

Perhaps they won’t. Then suppose the legislature adds the following to the Act: ‘Should the Brexit letter be the subject of litigation, the Supreme Court is required by this law to write the following judgment: “We have considered all the facts and fundamental principles of this case and hold that the Brexit law is valid.”’ Would the Court find that law invalid? Perhaps – and they should – but there is no substantial constitutional difference between this Court letter and the actual Brexit letter dictated to the executive. In both cases a genuine change of law by the legislature overrides the inclination of the Supreme Court and the executive respectively; but it must be a change of law, and in neither of our cases is the direction given, a change of law.

How could the Supreme Court possibly justify the doctrinal protection of its own integrity, but not that of Her Majesty’s Government? One answer might be: it holds the balance of the powers in the Constitution. But that is exactly what it has required of the Prime Minister in Miller/Cherry.

The development I have sketched of the Court’s constitutional adventure makes a cohort of Queen, Supreme Court (the common law, including the constitutional common law) and Executive, well able to match in importance the legislature – the so-called “senior partner” (Miller 1 at 90). The Queen and the Court come together as the constitution of impartiality between the interests of all citizens, institutions and parties; and the Executive, which advises the Queen (the legislature doesn’t) brings the Queen, through the requisite lawfulness of its advice (Miller/Cherry), to her authentic realisation in the constitutional room.

(Elephants are also beautiful)

Michael Detmold, Professor of Law (emeritus), University of Adelaide

(Suggested citation: M. Detmold, ‘The Monarch in the Room’, U.K. Const. L. Blog (2nd Oct. 2019) (available at https://ukconstitutionallaw.org/))

4Comments

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1

JohnAllman.UK on October 2, 2019 at 12:42 pm

Did not the Supreme Court not make a finding of law that it could review judicially a prime minister’s decision to advise prorogation, to make sure that there was a good reason for the decision? And did it not make a finding of fact that there was no good reason for the impugned decision to advise prorogation? And wasn’t that because the prime minister hadn’t testified that this or that was his good reason, even though a former prime minister had testified about his own decisions to prorogue and said he couldn’t think of any good reason why Boris might have done the same, but could think of at least one bad reason? And had not Boris been legally advised wrongly that his decision to advise prorogation wasn’t justiciable, so that he could safely stay out of the witness box?

We ought, therefore, to be wondering whether, if Boris had taken the stand, he might have been vindicated.

As it is, Boris came out smelling of roses, despite the purely technical finding that he had decided unlawfully to advise prorogation. That was what I found myself thinking, after witnessing the unjustified abuse heaped on him by the Opposition. So I blogged:

Boris Johnson “acted unlawfully”. ~ Does that make him a criminal?

I didn’t understand the bit in the judgment where the Supreme Court persuaded itself that its finding that the decision had been Wednesbury unreasonable to advise the queen to prorogue Parliament, had rendered HM’s subsequent prorogation of Parliament a nullity. I suspect that this learned essay sets out to explain that, but I may have to read it several times before I reach enlightenment.
2

jawatherstonbtinternetcom on October 3, 2019 at 6:29 pm

In the last part of his 2 October post Michael Detmold develops a persuasive argument that the requirement [to write a letter] imposed on the Prime Minister by the European Union (Wthdrawal)(No 2) Act is unconstitutional and so invalid. It will be interesting to see whether, if the renewed negotiations with the EU fail — and the early signs are that they will — the government will rely on that argument or some other (and if so what) to make good its repeated declaration that the UK will leave the EU on 31st October, if necessary without a deal, despite the terms of the Act. They are certainly behaving as if they have an ace up their sleeve, but allowances must be made for Mr Johnson’s rhetorical flourishes.

One difficulty the government would have in advancing Professor Detmold’s argument is that the Act was given the Royal Assent. In any litigation arising out of a failure or refusal by the Prime Minister to write the prescribed letter, or any action of his to render it nugatory, the applicants would no doubt argue that as the Queen always acts on ministerial advice the grant of Royal Assent signifies that the government, expressly or by implication, approved the statute and cannot now argue that it was invalid. We do not know why Royal Assent was granted in this case: perhaps the government’s legal advisers accepted arguments on the lines put forward by Nick Barber in his post of 24 Sept 2013, namely that a refusal of Royal Assent to a bill that has duly passed both Houses of Parliament is essentially anti-democratic, so that Royal Assent must be granted — there is no room for discretion; and so this constitutes an exception to the general rule that the Queen must act on ministerial advice. But even if one accepts that argument, and many do not, the context of Brexit (unforeseen of course in 2013) and in particular the government’s loss of control of proceedings in the House of Commons casts a very different light on the question. In addition to the points Professor Detmold raises, the question of where democratic values lie in this instance is much more open.

In the litigation I have envisaged one might therefore have a looking-glass situation (not the first in the Brexit context) where the applicants argue that the government could have ensured that the bill for the Act could have been refused the Royal Assent and the government arguing that it could not. It is very odd that the government did not put the matter to the test at the time, given that it was ready to chance its arm on the issue of a lengthy prorogation, where it was on weaker ground. If successful it would have saved itself from its present bind, strengthened its negotiators’ hands in Brussels and asserted its authority vis-a-vis the Commons to take executive action in its own proper field. It makes one question the quality of the legal advice the government is getting and hence the likely wisdom of its future actions in this matter.
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Brexit Highlights 30 September – 6 October 2019 – Middle Temple Library Blog on October 7, 2019 at 3:40 pm

[…] Pro-EU?; Rory O’Connell: The Johnson Letter and Cross-community Agreement in Northern Ireland; Michael Detmold: The Monarch in the Room; Theodore Konstadinides, Noreen O’Meara and Riccardo Sallustio: The UK Supreme Court’s Judgment […]
4

Michael Detmold on November 6, 2019 at 11:13 am

I agree that the Government should logically have advised non-assent. Perhaps they wanted the Brexit letter left in place for all to see its infamy. This didn’t quite work. The Prime Minister in the method of his sending, treated it with the contempt it deserved. but after a week or so the press contented themselves with saying he sent the letter!

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