Constitutional Law Group October 18, 2019 UK government, UK Parliament

Michael Detmold: The Supreme Court and the Executive Power of History

Introduction

The best Constitution in the world has, through its highest court, over-reached in two fundamental ways: it has founded its constitutional thought on a slipping meaning of ‘Parliament’ – its most important constitutional word. And it has failed to understand history. By this second claim, I do not mean that the history it has chosen, one way or another, is wrong. I mean, it has failed to understand history itself. No human thought of any sort can exist except in history: the Supreme Court has left the Constitution hanging in an ahistorical nonsense.

A partnership of powers?

In Miller (2) /Cherry (at [90]) the Court described the executive power as the junior partner and Parliament as the senior partner in the British Constitution. But this was a muddled thought: the sovereign is Parliament, which is singular not a partnership. It does, of course, have parts. Putting the Queen aside for this discussion, Parliament consists of two parts, the legislature and the executive. But these are parts, not a partnership. This is because a partnership is always of principals, and these two powers are not principals. Parliament itself is the sovereign and the principal. The confusion does not stop there.

Though there is no issue of partnership, there is one of relative mastery or sovereignty. For example, Parliament gives or withholds confidence as to a particular ministry (a particular executive), and insofar as it does this, it is the executive power’s master not its partner. But is there also an issue of mastery between executive and legislature? The Supreme Court (in the “partnership” passage at [90]) described a grafting between Parliament and the executive upon which it was improbable that ‘those two parties had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could subsequently remove the graft without formal appropriate sanction from the constitutionally senior partner in that exercise, Parliament.’ The executive power is junior, but junior to what?

To Parliament? But the word ‘Parliament’ in this passage has three possible meanings, all of which fail, rendering the passage nonsensical: (1) the sovereign Parliament (the assembly of elected members), (2) Parliament as executive master, and (3) Parliament as legislature. In attempting to understand what the Court means by Parliament as senior partner, the first meaning can quickly be precluded: Parliament is the sovereign and, as I have said, it is no-one’s partner in any degree. The second is precluded in a similar way: Parliament as executive supervisor is master over the executive and in no degree its partner. The third meaning is what is intended by the Court, but when it is analysed it make no sense.

We can easily compare Parliament-the-legislator with the executive, and conclude that Parliament-the-legislator is the ‘senior partner’. But here it is obviously the word ‘Parliament’ that is carrying the conclusion, and this it cannot do. The Court’s reasoning towards this partnership fails on two grounds. First, having introduced Parliament to the proposition of partnership it has introduced the sovereign who is no-ones partner. And second, having introduced the word ‘Parliament’ to one side of its equation it must do it for the other: its comparison thus becomes one between Parliament the legislator and Parliament the executive supervisor, upon which it is impossible to declare one the senior partner over the other: they jointly constitute the single sovereign.

It is only when we delete the word ‘Parliament’ from both sides that we can begin to get a proposition logically capable of being examined: the legislative power, we would then say, is senior partner over the executive power. But no, the reasoning can’t stop there; since the powers are parts of the sovereignty – not partners or principals – we must also excise the word ‘partner’, leaving our proposition as: the legislative power is senior to the executive power. And what on Earth can that mean?

The fact that in a free and lawful state the legislature makes law that affects or includes the executive, is not to the point. This obvious fact turns simply on the nature of law, which in a free and lawful state must apply to the executive as well as to citizens. An executive cannot be free in such a state to commit wrongs upon citizens: its own binding is a positive requirement for its being a lawful executive power. In no sense is the law of executive power simply a sovereign imposition by the legislature upon the executive power.

The rule of recognition and the absence of executive power

In 1961 in The Concept of Law Professor Hart of Oxford University taught us all to think of law not as the command of a sovereign – John Austin’s definition of law that had held sway for over a century – but as that which is identified by a fundamental rule of recognition. This is, as the Court in Miller (2)/Cherry put it: ‘the fundamental rule by reference to which all other rules are validated’ (60). But Hart’s rule of recognition does not identify the executive power. It identifies the law or rule of executive power, but not the power itself. In this fact there is much now to be said for the theoretical superiority of Austin’s sovereignty, which identifies the sovereign executive as well as the sovereign legislature. This is a crucial constitutional fact, for only the executive power makes history.

Is the rule of recognition the foundation of the nation? No. All it does is identify rules of law: it is the foundation, essentially of legislative power. The real foundation of the nation is its executive power – a fact that Austin’s idea of sovereignty can easily grasp. It is a universal juridical fact that there is no legislative power without its being instituted; and its institution is always an act of sovereign executive power.

We must also say that the foundation of a nation is its history. But then we say the same thing, for the nation’s executive power is its history – a thing that most certainly cannot be said of its legislative power. To demonstrate this let me compare two items of history: Magna Carta and Brexit. Magna Carta, let’s say, was a kind of legislation – from which fact we can see that legislation features in history – but the determining history was the executive power behind the charter. This was in the first place the power of the barons (executively) rising against the king’s (executive) tyranny. In the longer historical view it was the beginning of the peoples’ executive movement into a history that in the end became their incorporation into the executive power of the free and lawful state of the United Kingdom.

(A word on the jurisprudence of executive power. By the executive power of the individual I mean something close to Kant’s idea of human action as the (executive) work of a human end in itself. And by the executive power of a free state I mean that of a state that is, relative to other states, an end in itself. It will be obvious from this reflection alone that the executive power is much more significant in the matter of Brexit – the United Kingdom becoming an end in itself again – than the legislative power.)

So for Magna Carta, so for Brexit. It was the same power that founded Brexit. When the people voted for Brexit they did not vote for a certain piece of legislation, they voted for the executive act of leaving Europe – the beginning, as they saw it, of a new phase of intended history. This vote was the vote of the people continuing (executively) their movement of their history. Certainly, Miller exposed the fact that there was much legal detail, legislative and executive, that needed sorting out, but we cannot avoid the conclusion that in it the judges lost the broad historical sense of what they were doing. The detail needed sorting out but the lawyers and the Court itself were not needed. A ruling correct to the nature of history would have been: the Court declines jurisdiction, leaving Parliament to its historical legislative and executive responsibilities. Instead, the Court hijacked history, and packed it into a mass of legal argument.

And when you get stuck in a certain way of thinking, where can you go but forward? And so the Supreme Court held in Miller (2)/Cherry that sovereign prerogative powers (Professor Tierney’s admirable term) were answerable to law. In doing this, it committed the obvious logical error of holding that the sovereign executive power that creates law is answerable to law.

It is, of course, answerable to law in a secondary sense. It is true, as I said earlier, that the executive power is subject to the legislated law, whose possibility it creates. If it were not, it would be neither law nor an act of freedom. Essentially, the executive power and its history is free (in the Kantian way I’ve described). And in this primary sense of freedom, it is the executive power that moves history. And what a travesty it is of this freedom, and of its history, when the legislative power, encouraged by the Court’s new theories, attempts to turn its executive creator into its servant – and worse, into its programmed robot.

The history of what was the greatest constitution in the world is of the movement of executive power constantly fortified by legislative power. The two powers in this sentence cannot be reversed. History as the movement of the legislative power is a nonsense – a lawyer’s dream (as to the nature of which we dare not guess).

Michael Detmold, Emeritus Professor of Law, University of Adelaide

(Suggested citation: M. Detmold, ‘The Supreme Court and the Executive Power of History’, U.K. Const. L. Blog (18th Oct. 2019) (available at https://ukconstitutionallaw.org/))

8Comments

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1

Jerzy Kolodziej on October 18, 2019 at 1:56 pm
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Surely you are conflating the Crown in Parliament with the Crown in Council? The primacy of the Crown in Parliament was established inter alia by the Case of Proclamations, the Bill of Rights 1688 and the Claim of Right 1689. Technically, the Bill of Rights took effect without there being a monarch or a parliament. It established a new monarchy and a new (modern) parliament. If one were to accept that the executive were not bound in the way that you suggest, it follows that executive power would be without limit and could make and unmake law through the back door “by pretence of regal authority”. I would be the tail wagging the dog. The executive could take action through the use of the prerogative to bind Parliament to make law accordingly.

Similarly, all powers of the Crown must necessarily be limited by law. Law that is made by Parliament and law that is made by judges (common law). It should be obvious that laws are not made by “history” but by legal authority and statute. In some cases, “conventions” may be created by history, but a “convention” is not the province of the courts. Convention is controlled by Parliament not the executive.

Primary law is not made by the executive in any of these circumstances and is always subordinate to Parliament.

The circular arguments about the chicken and the egg have been subject to various attempts of rationalization. Sir Kenneth Robert-Wray suggested that it may be that conferral of “constituent” powers are irreversible in the normal way. Once sovereign power has been delegated to the Crown in Parliament it cannot be reversed. I tend to agree with that analysis because the alternative would be a return to the dispensing laws of Henry VIII and the pre 1600’s situation of fiat by the Crown in Council (or our government in effect).
2

whitenightf3 on October 18, 2019 at 4:24 pm
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I am totally fed up telling people who should know better this important fact. Parliament is NOT SOVEREIGN.

Parliament voted on this issue on the 8th March 1784 after a debate that lasted 3 months and in its then wisdom it decided that Sovereignty rest with the Monarch at the time George I. This has been the only time in our history that Parliament has ever voted on the issue of Sovereignty and you can check the fact with the Chief Archivist at the House of Commons as I have done. I am fed up with people like Gina Miller making spurious claims.
Another sore point is regarding the Constitution Britain is a landmass it is not a Sovereign Nation-State. England is a Sovereign Nation State so is Wales whom we share our Constitution with. Scotland is a Sovereign Nation State with its own Constitution. No wonder they have been able to get away with committing the heinous crime of High Treason when people who have spent their life in Law and do not know the Law.
3

Michael Detmold on October 20, 2019 at 5:21 pm
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Jerzy Kolodziej writes that ‘it should be obvious that laws are not made by “history” but by legal authority and statute’. But then what is it that makes or causes legal authority or statute? I have said it is the sovereign executive power and its history. But then the question is: how does this become binding? Where fundamentally does the phenomenon of law come from?

I’m writing not of the Crown but of the executive power. This is a power that begins when humans discover the capacity for human action (the power of the execution of projects). Gradually this becomes a communal power (having perhaps picked up a Crown in the process) and moves into a democratic mode where the Crown becomes a constitutional monarch. In the case of the British Constitution this involved a complex and delicate balance of sovereignty, which prior to the recent actions of the present Supreme Court in relation to Brexit, was fairly well settled and understood. The sovereign executive power, the single power at the bottom of it all, was by these decisions, and by the infamous Benn Act’s requirement of a dictated Brexit letter, downgraded to the status of administration. In particular, in these unsettling actions Her Majesty’s Prime Minister became a mere administrator (and could even in the coming weeks find himself in gaol for contempt of Court as a consequence of treating the Benn Act as it deserved).

The basis of the bindingness of the Constitution is an important question. My short answer finds that basis in the common law. I shall illustrate this by reference to the common law of contract. When humans discovered the (executive) power of communal action they discovered the power of contract. And the binding power of contract is inherent in contract itself – if you think you have a contract but deny its binding power you have misunderstood contract. The whole binding power of the Constitution – the complex and delicate settlement I have described – is a complex function of this simple fact.

When Kolodziej says, ‘convention is controlled by Parliament not the executive’ he adopts the slipping use of the word ‘Parliament’; one that confuses a very great deal of judicial and academic constitutional law – a confusion apparent in Miller and in Professor Craig’s two posts on this blog (posts highly significant in the demolition of the sovereign executive power). Does ‘Parliament’ in the Kolodziej quote mean the legislative power of Parliament or the executive power of Parliament? If the latter it is a simple contradiction. If the former, it is a slightly complex one: were the legislative power to control a convention, it would no longer be a convention.

And should Kolodziej just mean Parliament, there indeed would be a slippery word.
4

whitenightf3 on October 21, 2019 at 11:31 am
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No such thing as a British Constitution Britain is a landmass on which exist Sovereign Nation States of England, Wales and Scotland. We share our Constitution with Wales and the Scots have their own which is why their legal system is also different to ours here in England.
Another point people who have spent their whole lives working in Law do not know the difference between a Constitutional Parliament and an ordinary Parliament and worse they believe that an ordinary Parliament can make Constitutional Laws and it cannot. We are in this mess because when you want to destroy Sovereignty you subvert the Constitution and that has happened over the last two hundred years.
5

C D Vanderweele on October 23, 2019 at 10:59 am
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What are we to make of the expression that the government governs with the consent of parliament? Where does democratic legitimacy for both legislature and executive derive? Not the same place, since ministers may be in the house of Lords. And yet, of course, the majority of the government positions are filled by MPs whose legitimacy as legislators co-exists by virtue of being elected. Where does their power to govern derive?
6

Michael Detmold on October 24, 2019 at 11:46 am
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To CD Vanderweele: The Executive’s power to govern comes from precisely the same source as the legislature’s power to legislate: both come from Parliament. – the legitimate sovereign – whose legitimacy, both democratic and historical, is distributed to its two powers. To avoid argument, one could concede the equality of these distributions; but the truth is that the legislative power exists to serve the governance of the nation, and not vice versa. The idea that Parliament’s government exists to serve Parliament’s legislature is a nonsense, only gaining a semblance of meaning when the word ‘Parliament’ is encouraged to slip in and out, and it is said: the government exists to serve Parliament. This mistake is very common amongst the leaders of British constitutional thought. Here are two in alliance, a distinguished judge and a distinguished constitutional law professor (Mark Elliott; quote from his blog):

‘As Sir Stephen Sedley puts it in Ashes and Sparks (Cambridge 2011), p 86, the ‘[e]xecutive government … is not one of three sovereign and equal elements of the state’. Rather: ‘It is subordinate to both Parliament and the courts.’ The characteristic eloquence with which Sedley states this proposition should not obscure the fact that it is actually a very basic (albeit important) one. The justification for this state of affairs, understood in contemporary terms, is readily apparent: it is that Parliament has an independent democratic mandate whereas the Executive does not.’

When the slipping of the word ‘Parliament’ is exposed, what Elliott (and Sedley, too) is saying is: Parliament’s legislature has an independent democratic mandate whereas Parliament’s Executive does not. This is nonsense, and is the root cause of all the Brexit trouble.
7

C D Vanderweele on October 29, 2019 at 4:22 pm
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Detmold says “but the truth is that the legislative power exists to serve the governance of the nation, and not vice versa.”

Is that really so and can it be so in any philosophical sense? First there was the executive and then came law? In reality that was probably how rulers with absolute power were brought under control, but only with the force to back it up. 17th century England for example.
Laws can have no effect without an executive to implement but we know dog and tail. Laws are not always introduced at the iniative of the executive – the USA for example. The legislature can see defects and gaps in executive power without becoming the servant of the executive.
8

Michael Detmold on November 6, 2019 at 10:54 am
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Dear CD, I was talking of the Institution of legislative power, not a particular instance of it. In your example of the United States, it is obvious that the institution of legislative power comes about by the executive power that created the Constitution. One of the great things about the British unwritten Constitution is that this founding executive power lives on to this day; though it got a rather crummy treatment in Miller 1.