Who speaks for the state?

Frederick Wilmot-Smith on Miller v. the minister for Brexit

What is the proper distribution of power between Parliament and the executive? It’s a question raised by the recent High Court decision in Miller v. The Secretary of State for Exiting the European Union. Under Article 50 of the Lisbon Treaty, a member state must ‘notify the European Council of its intention’ to leave, commencing a two-year period of negotiations on the terms of its withdrawal. But who has the power to speak for the state? ‘A negotiation with the European Union will need to begin under a new prime minister, and I think it is right that this new prime minister takes the decision about when to trigger Article 50,’ David Cameron said in his resignation speech. Few doubted that the prime minister could send the notification – the question was when it would be sent – but the claimants in Miller challenged this assumption.

Treaties are agreements between states. But states don’t have minds of their own: they are creations of law and the law must determine how they act and who acts on their behalf. It’s an idea both strange and familiar. Companies can make contractual agreements because we have legal rules to determine who may act on their behalf: the CEO of Tesco can make agreements for the company, a temp stacking shelves can’t. The rules that determine who can make agreements on behalf of the state are part of the constitution. Kings once made these agreements, and were bound by them; it was eventually recognised that their agreements were binding on the state as well.[*] Our constitution descends from these arrangements: the power to make (or to repudiate) treaties is held by the executive under the royal prerogative.

In an influential statement of the principle of the separation of powers, Montesquieu wrote that ‘when the legislative and executive powers are united in the same person … there can be no liberty.’ The United Kingdom’s commitment to this ideal has never been wholehearted – Walter Bagehot said the ‘nearly complete fusion of the executive and legislative powers’ was the ‘efficient secret of the English constitution’. Yet, in partial deference to the distinction between executive and legislature, we have long held that agreement to a treaty doesn’t change citizens’ obligations under domestic law. Parliament holds the legislative powers. If the executive wants to incorporate treaty obligations into domestic law, it must get Parliament to legislate. To give domestic effect to European law, for example, Parliament had to pass the European Communities Act 1972 (ECA).

Parliament is the sovereign entity in our constitutional order. The upshot is that it can change the rules about who is authorised to make treaties. It could empower a private individual to negotiate treaties on behalf of the state. It could decide that the executive is no longer entitled to make or unmake any treaties. Or it could decide that the executive is no longer entitled to unwind a particular treaty. The dispute in Miller was whether Parliament had taken away the executive’s power to pull out of the Treaty on European Union. The claimants argued that, by passing the ECA, it had. If they are correct, the prime minister is not entitled to send an Article 50 notification; she would need Parliament’s authorisation first.

Three of the most senior judges in the country heard the case in the High Court. Their decision was unanimous, and resounding: it was ‘clear’ that Parliament, not the executive, held the power in question. But this was little more than a preview of the main show: the government is appealing to the Supreme Court, which will hear the case in December. Four days have been set aside for oral argument. Since the High Court’s decision, a number of academic lawyers have written about the case, pointing out arguments the government didn’t think to make first time around; it’s likely that some of these will find their way into the government’s argument before the Supreme Court. The claimants’ success is not guaranteed.

The ECA could have expressly removed the executive’s power. It didn’t. The claimants’ basic contention is that various features of the ECA take the power away by implication. There are two arguments here, though there is no deep distinction between them. First, the claimants point to the words and purpose of the act. For example, the ECA makes the stream of European law effective within the United Kingdom; it would be inconsistent, the argument goes, for the executive to be able to cut off European law at its source (by pulling the UK out of Europe). Further, the ECA doesn’t recognise any post-1972 treaties as having any effect in domestic law without a resolution of both Houses of Parliament. The executive can’t, in other words, add to the content of European law without parliamentary scrutiny. Given this, it’s uncomfortable to permit them to repudiate those treaties without similar parliamentary scrutiny. The High Court placed most weight on these sorts of considerations.

Second, the claimants say that an Article 50 notice would ultimately deprive people of domestic rights – and that the executive can’t do this. On the law as it stood before Miller, this second argument could succeed only if the ECA actually did grant rights. It probably doesn’t. The United Kingdom has agreed to a series of European treaties, from the Treaty of Rome (1957) to Maastricht (1997) to Lisbon (2007). Individuals’ rights – such as the right to work in any country in Europe, to tariff-free trade (after Brexit, tariffs on wine, for example, may be as high as 32 per cent), or to receive consular assistance from any European country – derive from these treaties. The UK is under an obligation to recognise these rights in its domestic law. The ECA, to meet that obligation, holds that these rights ‘shall be recognised and available in law’. Technically, then, the ECA is not the source of those rights; their source is the European treaties. The ECA acts as a gateway, allowing UK judges to recognise those European rights in domestic law. The rights, which come through the gateway, remain European, not domestic; the ECA is the means by which they become enforceable under UK law.

This distinction looks highly legalistic, but it may prove crucial: a number of academics have argued that the claimants should lose because the ECA is merely a gateway for, rather than the source of, these rights. This point was not made clear in the argument or decision in Miller. It will almost certainly receive closer scrutiny before the Supreme Court. Part of the question the court faces is whether the distinction between a gateway and a source is a distinction without a difference. At the end of the Article 50 procedure, European law will no longer bind the UK; there will be no rights at the international level for the ECA to incorporate into UK law. The functional effect of leaving the union is, on any view, that citizens will lose a whole host of EU rights. If the prerogative can’t be used to take away rights granted by a statute or rights incorporated into domestic law by a statute, can it justifiably erase rights which have, because of a statute (in this case, the ECA), the same practical effect? I know few non-lawyers who are happy for the result to turn on such fine legal nuance. The Supreme Court may think likewise, and could well affirm the High Court’s decision for that reason.

There would undoubtedly be something new in such a decision. Yet it would be far from revolutionary. It would take a narrower rule (that rights granted by a statute can’t be removed by the prerogative) and formulate a more general rule (to include rights granted by another legislative institution, recognised by a statute). Good lawyers need some level of abstraction from particular facts. Oliver Wendell Holmes tells the story of a farmer who brought a case against another for breaking a churn. The judge in Vermont said ‘he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant.’ If the Supreme Court decides that the source/gateway distinction is irrelevant, it will be because they think some broader consideration unites the two situations.

One important issue in the background to this argument is whether the Article 50 notification is revocable. Could a new government change its mind (for example, following another referendum) and decide to remain in the EU? There are respectable legal arguments that it could. Even so, the government accepted before the High Court that the notification was irrevocable. That didn’t help its case. If the notification could be revoked, the inexorable logic of the exit (and so the loss of EU rights) could be avoided. The concession was presumably made for political reasons. Whether the notification can be withdrawn is a question of EU law. When there is doubt on questions of EU law, domestic courts seek guidance from the European courts. The government must have feared the lengthy and politically embarrassing delay a reference to the European courts would occasion. There are signs that it is now willing to risk that delay: it has been reported that the government’s lawyers will, in the Supreme Court, argue that the notification is revocable after all.

The High Court relied on a range of further considerations, few of which I think are central to the case. An important theme running through the judgment is a ringing endorsement of parliamentary sovereignty. Objections to the decision were loudest from those who had sought to ‘take back control’ from Europe. On the face of it, the decision does no more than affirm that end: it is for Parliament to control things.

The judiciary, Alexander Hamilton pointed out, has ‘no influence over either the sword or the purse’. This means, he wrote, that ‘all possible care is requisite to enable it to defend itself against [the executive or the legislature’s] attacks.’ Today the media are as much of a threat. Photos of the High Court judges were published on the front of the Daily Mail (‘Enemies of the People’) and The Daily Telegraph (‘The Judges versus the People’). ‘This country faces a crisis as grave as anything since the dark days when Churchill vowed we would fight them on the beaches,’ the Daily Express said.

The lord chancellor, above the prime minister in the constitutional order of precedence, has a special responsibility to defend the judiciary. The office has customarily been held by senior lawyers in the twilight of their careers, people who could resist the executive without fear of curtailing their own ambitions. Since the early 1990s ministers have been more willing to criticise judges’ decisions: Michael Howard, David Blunkett and Theresa May are prominent examples. As home secretary, May falsely claimed that a judge had refused to deport someone on the grounds they were very attached to their cat. This increase has been matched by a decline in the standing of the lord chancellor. The office is now a rung on the political ladder, not a valediction; its last three holders – Chris Grayling, Michael Gove and now Elizabeth Truss – have had no legal training.

When she took her oath of office, Truss promised to ‘respect the rule of law’ and to ‘defend the independence of the judiciary’. The Constitutional Reform Act 2005 places her under a statutory duty to do so. She took 48 hours to respond to the media’s treatment of the Miller ruling. Her brief statement, saying that the government intended to appeal the decision, was widely condemned; the previous lord chief justice called it ‘a little too late and not a lot’. Apparently Truss thought it was for the lord chief justice, not her, to defend the judiciary. Someone had to point out that he was one of the three judges under attack.

The government may yet win in the Supreme Court. Would that make any difference to the outcome of Brexit? Parliament could pass a short act empowering the prime minister to issue the notification. Things would then proceed as they would have done if she had sent the notification without parliamentary approval. A vote on the notification could make a difference if there is an attempt, in passing the act, to decide the government’s priorities in exit negotiations. If, for example, the empowering statute instructs the government to try to remain within the European Economic Area, that might make a difference. There is also a debate about how much scrutiny the executive should be subjected to during the negotiations. But that scrutiny will go on in one form or another even if the claimants lose before the Supreme Court.

It is hard to be sure what is to come because the government has been so vague about its plans. The only substantive proposal is the passage of a Great Repeal Bill to replace the ECA. Details are scant, but it would aim, ironically, to take the UK out of the EU by replicating the entirety of European law in the domestic legal system. The proposal itself is quixotic. Quite apart from the enormous practical challenge it poses, some valuable features of the European legal order can’t be replicated unilaterally. For example, under European law, judgments in English courts are enforceable throughout European courts. That can’t be recreated unilaterally: Parliament may be sovereign but it can’t force other nations to recognise English judgments. (If the Repeal Bill replicates existing laws, one consequence – unfortunate or amusing, depending on your point of view – is that our courts would remain bound to recognise European judgments.) The government, of course, doesn’t anticipate European law remaining on the books for ever. It wants to pick and choose the laws that stay. This means, the department for exiting the EU has stated, that ‘the Repeal Bill will include powers for ministers to make some changes’ to the law. This is said to give ‘the government the flexibility to take account of the negotiations with the EU as they proceed’. These clauses are known as ‘Henry VIII clauses’, after a statute passed to ensure that the king’s decisions had the same force as legislation. (David Hume called this a ‘total subversion of the English Constitution’.) Similarly, the Repeal Bill would grant individual ministers enormous legislative powers. It would entail a massive transfer of power from European institutions and the UK Parliament to the executive.

This gets to the heart of the question raised by Miller. Should the executive be permitted to take advantage of our legislative framework to exercise a quasi-legislative function? There is no easy answer to that question. One way to read the High Court’s decision is as an entrenchment of parliamentary powers, hard won from the Crown and justified by principles of representative democracy. In light of the executive’s failure to defend the judiciary in the aftermath of the decision, their incoherent proposals for leaving the EU, and broader concerns about the democratic legitimacy of Parliament, no one should feel entirely sanguine if the government’s appeal succeeds.

[*] When Henry IV overthrew and killed Richard II in 1399, France refused to recognise him as king. But it wanted to ensure that the Treaty of Paris (1396) stayed in force. In 1400, the English solved the conundrum: treaties, they said, ‘bound not just the kings but their kingdoms also’.