Subverting Democracy and Brexit

On September 24th, 2019 the UK Supreme Court handed down judgment in Miller v. Prime Minister (Miller 2). The question for the court was whether the Prime Minister’s recent decision to prorogue Parliament had been lawful; at the time, though, Brexit itself seemed to be at stake. The staging was suitably dramatic. The Supreme Court was sitting essentially en banc in a panel of 11, only the second time that had happened in its history. The President of the Court, Lady Hale, delivered the judgment draped in black except for a bizarrely large and striking golden spider-shaped brooch attached to her shoulder. Even she appeared to be nervous, as though she could not quite believe that this was all happening. There was a sense that the entire country was listening enrapt as she spoke. It was a truly significant moment. It seemed to be the culmination of a battle not just between the judiciary and the executive or between the two sides of the Brexit referendum, but also between two different ways of seeing the world: progressive versus conservative, technocracy versus populism, innovation versus tradition–the list goes on, and the divisions are familiar on both sides of the Atlantic.

At the time, the decision in Miller 2 could only be understood against the backdrop of Brexit. The vote to leave the European Union had taken place on June 23rd, 2016. But a hugely successful rear-guard action had been fought by the defeated Remain side in order to delay the process, so as to secure a “second referendum” (a euphemism for cancellation). Boris Johnson, the new Prime Minister, had been elected leader of the Conservative Party on the explicit platform of “getting Brexit done.” But he led a minority government, which had lost control of the mostly Remain-supporting House of Commons. MPs were openly conniving across party lines to amend legislation to force his hand in Brexit negotiations. To circumvent this, his government took the decision to prorogue Parliament for a period of five weeks, formally concluding the running Parliamentary session and hence preventing MPs from sitting (and thereby doing anything disruptive) during a crucial month of the negotiations.

The government’s tactics were blatant. There was no justification for a five-week prorogation given that such periods usually only last for a week or so. Many prominent Remainers failed to grasp the wider strategy: to make clear to the electorate that the government was serious about leaving the EU. A challenge to the legality of the decision to prorogue immediately followed in the courts, and this quickly made its way up the court hierarchy to the Supreme Court and its now-infamous judgment.

The atmosphere at the time was truly febrile. And the judgment, which held that the decision to prorogue Parliament had been unlawful and hence “null and void,” managed simultaneously to combine a growing sense among Remainers that Brexit could be thwarted, the hope that Boris Johnson (widely despised by the left-wing establishment) could be ousted, and also the feeling that it was somehow also a feminist moment–as though Lady Hale was triumphing over male privilege rather than simply applying the law. For many legal academics and commentators, it also seemed to represent the point at which UK constitutionalism finally stepped out of the dark ages and into modernity, with a much more grown-up conceptualization of what the separation of powers meant in a 21st-century society. The UK indeed seemed to be having its own Marbury v. Madison moment–the creation by judicial fiat of a fully-fledged constitutional Supreme Court.

Looking back on the decision now, it takes on a different aspect: the high watermark of a now ebbing tide of judicial activism in the UK. Because, as subsequent events have shown, when politics and law come into direct and open confrontation in a representative democracy it is usually politics that ultimately triumphs. As Antony de Jasay once put it (using a particularly French metaphor), a state constrained by a constitution is akin to a person wearing a chastity belt while also carrying the key. It is only restrained by the law as long as it wishes to be–or deems it expedient. When courts become too confrontational, a political reaction inevitably follows. In the US, the victory of politics tends to take place in the arena of judicial appointment. In the UK, as one might expect given its constitutional arrangements, it happens through more flexible methods. But it happens all the same.

The decision in Miller 2 not only appeared to be subverting democracy in the most blatant fashion in the eyes of the public–a naked attempt to help Remain-supporting MPs in their battle against Brexit.

For decades the UK judiciary has been growing in self–confidence in expanding the scope of judicial review. Unlike in most countries, UK courts do not have the power to strike down primary legislation as unlawful or “unconstitutional.” They also traditionally lack the authority to declare the actions of Ministers or public bodies unlawful on substantive grounds, or to rule on the legality of the exercising by governments of royal prerogative powers (such as the power to make war, to call general elections, or indeed to prorogue Parliaments). With one relatively minor exception that need not detain us here, these principles provided relatively hard limits on the scope of judicial review up until 1984.

But beginning in 1984–the celebrated GCHQ case, in which the House of Lords held that exercises of the royal prerogative could in fact be subject to judicial review–those limits began to be chipped away, and there has been an explosion since in the range and scope of judicial review. This has partly been attributable to the Human Rights Act 1998, which allows courts to strike down secondary legislation, and hold public bodies to have acted unlawfully if they have done anything incompatible with the European Convention on Human Rights. That Act has naturally had the effect of putting judicial review on steroids.

But it would be a mistake to put the responsibility for the growth of judicial review entirely on the Human Rights Act’s shoulders. The GCHQ case was decided long before 1998 and had nothing to do with human rights, and judges have been making all kinds of other “innovations” alongside the development of human rights law since the 1980s. In Thoburn, for example, judges discovered that there was such a thing as a “constitutional statute” (hitherto unknown) which they had the power to identify, and which unlike other statutes could not be impliedly repealed by subsequent legislation. In Bancoult, they found that Orders in Council (somewhat akin to an executive order in the US), although primary legislation, can in fact be subject to judicial review because they lack the representative legitimacy of statutes. In Evans, they determined that statutes ought to be interpreted restrictively, against their clear meaning, to align with something called the “principle of legality” (whose form is of course determined by the judge). And in Re Northern Ireland Human Rights Commission, they decided that even where a party clearly does not have standing to bring a case before the court, that court can nonetheless take the opportunity to opine about the compatibility of relevant primary legislation with the European Convention on Human Rights. All innovations, not coincidentally, have given judicial review increased scope. The Human Rights Act, in other words, accelerated a trend, but judges in our higher courts had been engaged for years in a much grander expansionary project–what Lady Hale had herself described in 2014 as “UK constitutionalism on the march.”

What is clear in hindsight is that pursuing this trajectory would one day lead the judiciary to a collision with the executive. And this happened in the most spectacular fashion in Miller 2. Here, the Supreme Court decided that a proceeding that had taken place in Parliament had not in fact been a “proceeding in Parliament,” and that, as a result, a matter that had always belonged purely in the realm of non-justiciable convention was in fact in the realm of justiciable law. Miller 2 was the climax, in other words, not just of disputation over Brexit but of a movement that had been building for years–the point, purportedly, at which the Supreme Court asserted judicial supremacy and took for itself the mantle of guardian of the constitution; the culmination, as it were, of Lady Hale’s “march.”

It is hard in retrospect to avoid the conclusion that those engaged in this “march” led themselves into a trap. What prevents governments from abusing prerogative powers in the British political constitution is the legislature, which means, ultimately, the electorate.  The decision in Miller 2 therefore not only appeared to be subverting democracy in the most blatant fashion in the eyes of the public–a naked attempt to help Remain-supporting MPs in their battle against Brexit. It also appeared to be subverting the constitutional role of ordinary voters. Few of them will have thought of it explicitly in those terms. But they will have felt their usurpation keenly: if we don’t like what the government has done, we’ll vote them out when the next opportunity arises–and it is certainly not for the judiciary to make that decision for us. The judgment therefore provoked a truly visceral reaction in the majority of the public–those who wanted to see the referendum result implemented and democracy take its course. And this can only ultimately have contributed to Johnson’s subsequent electoral success, winning by a landslide in the general election of December 2019 and going on to take the UK out of the EU in (using the parlance of the time) a “hard” Brexit. As an attempt to stymie Brexit, the Supreme Court’s judgment was therefore futile. As an attempt to usher in a new era of UK constitutionalism, it now seems almost naive.

We are now seeing the inevitable consequences play out. It seems certain that the government will bring forward legislation to reform judicial review in this Parliament to “restore the balance of power between the executive, legislature and the courts,” as the Queen’s Speech this year put it. And, thanks to Miller 2, there will be little in the way of public opposition. It may well be the case that the legislation in question will not need to be revolutionary because the message has already been sent and received: the judiciary is on notice. Nobody paying attention to what goes on in the UK courts can have failed to notice that a distinctly more deferential tone and approach has been adopted since the general election of 2019. The first inkling of this was the recent Begum case, in which the Supreme Court (now under different management in Lord Reed) declined the opportunity to interfere with the institutional competence of the Home Secretary. The feeling has been more than confirmed in the various challenges to lockdown regulations which have been brought, which have got almost nothing from the courts other than the utmost deference to government ministers. The mood has radically shifted away from confrontation with government and towards a more traditionally circumspect tone.

Those who were critical of Miller 2 and what it represented will welcome this. One day they may have cause to be careful what they wish for. While the wrecking ball that Miller 2 swung at Brexit and Boris Johnson missed spectacularly, we must now hope that it does not swing too far back in the other direction and irreparably damage the independence of the courts. But for the time being at least it is possible to say that while Miller 2 appeared to represent the dawning of a new era of judicial oversight of the constitution, we may well look back on it as the point at which “UK constitutionalism” had its eyes opened to the reality of the relationship between law and politics in the UK.