(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/))