On the State of the British Constitution after the Supreme Court Ruling

57. Such an interruption in the process of responsible government might not matter in some circumstances. But the circumstances here were, as already explained, quite exceptional. A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019. Whether or not this is a good thing is not for this or any other court to judge. The people have decided that. But that Parliament, and in particular the House of Commons as the democratically elected representatives of the people, has a right to have a voice in how that change comes about is indisputable. And the House of Commons has already demonstrated, by its motions against leaving without an agreement and by the European Union (Withdrawal) (No 2) Act 2019, that it does not support the Prime Minister on the critical issue for his Government at this time and that it is especially important that he be ready to face the House of Commons. --British Supreme Court, pp. 20-1

I suspect most analytic philosophers -- the ones interested in philosophy of language and social ontology -- and all lovers of (apparent) paradox will be naturally drawn to paragraph 69 in order to reflect on one of the key findings of the court: an "actual prorogation" is simultaneously, "unlawful, null and of no effect,"* despite, of course, having genuine effects in time--parliament did suspend business, etc. They would not be wrong to do so because even our most trained intuitions get a reality check when authorized judges, with the (apparent) backing of state power, decide the status of speech acts. 

I am not wholly uninterested in the status of that speech act, and will return obliquely to it below, but here I focus on what we may call the constitutional significance of the content of the ruling. The court explicitly understands itself as belonging to a four hundred year tradition of courts that protect the "principle of Parliamentary sovereignty." (par 41, see the whole paragraph.) It quotes Lord Browne-Wilkinson approvingly, “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.”

As an aside, that very history is also presented as one one of development or change that can be characterized in terms of different practices. Because in considering the "limit upon the power to prorogue," the court refers to "modern practice" (without explaining when we became moderns--I am not critical of this).  It then adds, "A prerogative power is therefore limited by statute and the common law, including, in the present context, the constitutional principles with which it would otherwise conflict." (par 49) Somewhat strikingly it does not mention custom/practice, despite going on to rely on evidence (from a former prime minister no less) about the nature of such custom. 

Okay, let me turn now to the heart of the matter. In reflecting on the lawfulness of the prime minister's advice to the Queen, the court explicitly reflects on the "foundations of our constitution." It then writes:

We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons - and indeed to the House of Lords - for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. (Par 55)

At first glance, this statement represents the pre-Brexit (2016) referendum conventional wisdom. It also helps reminds us why the British practice has a claim to being the modern (17th/18th century) inspiration of the doctrine of the division of powers. Even so, it is not without obvious peculiarity. I note three: (i) in this account it is wholly mysterious why the Government is also accountable to the (unelected) House of Lords. (ii) Because of the (2011) Fixed-term Parliaments Act 2011, which the court discusses in par. 5, it is now possible to have Governments that de facto (but not de jure) lack the confidence of the House of Commons. When a blocking minority prevents a new election and the house is unwilling to pass a motion of no confidence, a Government can soldier on without being able to pass legislation. This is not a hypothetical possibility, but reality now. Unfortunately, the court ignores this. (III) The paragraph also draws on a contrast between representative and direct democracy, and clearly implies that both can be sources of democratic legitimacy.+ I am unsure this would have been widely accepted prior to the 2016 Referendum.

That it does this, that representative and direct democracy are both sources of democratic legitimacy (in Great Britain), is also evident in the paragraph 57 quoted above. Much to my surprise, it treats the 2016 Brexit referendum not merely as advisory, but as authoritative expression of the people's will. This suggests that the Court views the referendum as more than merely advisory. It seems to be saying that with the referendum, the British constitution has two sources of democratic legitimacy: representative and direct.** To the best of my knowledge this is an innovation in the British constitution (but, perhaps, legal historians will judge otherwise). This innovation will accelerate (recall here; and here; and here, with comments by Helen de Cruz here) the implosion of that constitution. 

Let me explain. The court is explicit that it is responding to what it takes to be "exceptional" circumstances. (The use of that word undoubtedly will generate a scholarly industry with references to Carl Schmitt.) And in such circumstances innovation may well be required to keep the Constitution afloat, but great haste can also lead to great mistakes. In my view the Court's reasoning will lead to predictable future problems. For, when referendums occur frequently and with well thought through procedures, including the way the referendum question is posed, they are, indeed very important sources of democratic legitimacy. But unless it's a post-revolutionary founding act, the rare use of a referendum merely destabilizes representative democracy.

For, the Court asserts that Parliament has a voice, even a right to be heard, but it does not explain how the different forms of democratic authorization are to be reconciled.** In my view it's decision is a Pyrrhic victory for representative democracy. The Supreme Court is basically saying that parliament is sovereign because, and as long as, the executive is willing to respect the opinions of the high court; and absent a willingness on the part of the executive to act in defiance of Parliament on the expressed will of The People, who are, it seems, simultaneously constituted by the result of the referendum. It strikes me that this combination of commitments makes parliamentary sovereignty fragile. ++

 

 

*Here is the full sentence: "It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect."

+I ignore here further questions about to what degree the Court obscures the difference between necessary and sufficient conditions for democratic legitimacy. It presupposes claims about the franchise, and fairness of the elections.

**In the US context that's a feature and not a bug. 

++I thank Chris Brooke, Stepen Davies, and Victor M. Muniz-Fraticelli  for discussion on Facebook.

Comments

[J. Bogart]

"The Supreme Court is basically saying that parliament is sovereign because, and as long as, the executive is willing to respect the opinions of the high court; and absent a willingness on the part of the executive to act in defiance of Parliament on the expressed will of The People, who are, it seems, simultaneously constituted by the result of the referendum. It strikes me that this combination of commitments makes parliamentary sovereignty fragile." This is puzzling -- are these conditions supposed to be new? Don't they hold whatever the Supreme Court may have decided?

[Eric Schliesser]

The conditions are new, I think, in so far as the court has given the executive a new route to democratic legitimacy not grounded in parliamentary majorities--namely one that appeals to, or claims to understand, the direct expression of the will of the people. From the perspective of the principle of parliamentary sovereignty that's very dangerous (even though it happens in other democracies).

[A. Galan]

'The conditions are new, I think, in so far as the court has given the executive a new route to democratic legitimacy not grounded in parliamentary majorities--namely one that appeals to, or claims to understand, the direct expression of the will of the people.'

But is that even true? Johnson has been used that rhetoric well before the decision of the Supreme Court. As it has been widely reported, the strategy of Cummings has been precisely to present a 'People vs Establishment' dichotomy. Furthermore, the appeal to the will of the people is always a generic element of populism. So I do not think that the court has paved the way to something that is always there.

Another thing is that it seems to me that you are criticizing the court for solving some potential problems that will come up along the way. It seems to me that this is an unfair criticism, if one is attentive to the politics surrounding the court's decision. The fact that the court delivered an unanimous decision implies that a lot of negotiation took place and to have dealt with other matters could have potentially disrupted the unanimity behind the decision as it would go into another set of complicated problems, especially with the fact that the some of the members of the court were already treated as 'enemy of the people' with Miller 1 case.

Lastly, I would also argue that this double source of democratic legitimacy and all the complications that it brings, is the daily stuff of politics, and no court will solve it satisfactorily.

[Richard]

I am not sure I agree with your three 'peculiarities. I think you 'read' in as they say rather than more than is warranted.

(i) in this account it is wholly mysterious why the Government is also accountable to the (unelected) House of Lords.

The judgment gives two roles for Parliament - one is representative, the other is scrutiny. The H o L definitely has a scrutiny function, and given its members are now for the most part appointed by elected representatives it can also claim a very indirect representative legitimacy.

(ii) Because of the (2011) Fixed-term Parliaments Act 2011, which the court discusses in par. 5, it is now possible to have Governments that de facto (but not de jure) lack the confidence of the House of Commons. When a blocking minority prevents a new election and the house is unwilling to pass a motion of no confidence, a Government can soldier on without being able to pass legislation. This is not a hypothetical possibility, but reality now. Unfortunately, the court ignores this.

Well another way of interpreting this is to say that because Parliament is sovereign it decides when governments can appeal to the people or not and this FTPA actually enhances parliamentary sovereignty. The government has to stay at Parliament's pleasure not its own, and carry on debating and legislating in a way that can get a parliamentary majority. Parliament can even force a PM to resign without then going to the country. I do not think the Court ignores this - or rather, it says all of this is Parliament's prerogative.

(III) The paragraph also draws on a contrast between representative and direct democracy, and clearly implies that both can be sources of democratic legitimacy.+ I am unsure this would have been widely accepted prior to the 2016 Referendum.

I don't think it 'clearly implies' that is the case in the UK - quite the contrary, it says direct election of the government is NOT the case in the UK. Para 57 may seem to give you more support, but of course the referendum was authorised by Parliament and they do not need to say it is advisory because as the DO say it is for the Government - subject to Parliamentary approval - to say how that change comes about (if at all). I also do not think this judgment implies that 'Supreme Court is basically saying that parliament is sovereign because, and as long as, the executive is willing to respect the opinions of the high court; and absent a willingness on the part of the executive to act in defiance of Parliament on the expressed will of The People'. It is saying that Parliament is sovereign because that is the constitutional principle at the heart of the British system of government - and the executive cannot simply appeal to the sovereign will of the people under our system. Of course, Johnson being a populist wants to do just that.

What I disagree with is para 43 - I agree with Endicott and Tierney who suggested in blog posts prior to the judgment that Parliament could defend itself and should be allowed to do so. Like them, I feared the SC judgment would be misread (in the sort of ways I think you misread it) and lead to a delegitimisation of the Political Constitution. But that was not their intention.

[Eric Schliesser]

Hi Richard, Thanks! Very useful. I also think you articulate the intent of the judgment on all three points. A few (modest) responses: (i) yes, the function is scrutiny, but the legitimacy of this scrutiny is not democratic *given the principles of democratic legitimacy they have just expressed.* [I personally think one can make scrutiny legitimate, even democratically legitimate, without voters voting on it.] (II) Yes, and de jure that's surely right. But I also note de facto the situation is problematic and won't go away (until a PM can rely on a broad majority in the commons). (III) Here we clearly disagree. I think the wording is really problematic, and also they have facilitated more not less populism. (Of course, the actual effect is negligible because populists do what populists must do!)

[Eric Schliesser]

Hi Alexis,
On your first point. My claim is not that the court is inventing populism; rather it is acknowledging in legal fashion the claim that direct democracy is a form of legitimization that is proper to the British constitution. One, to be sure, not practiced in the history of UK, but available (i.e. referendum). Unlike Richard (above), I think that form of legitimacy is given equal weight to the principle of sovereignty in this judgment (intentionally or not).

I think I am aware of the political salience of unanimity and that there was an effort to get people on the same page. But this was all done in very short amount of time and in high stakes case; as I say in the post "great haste can also lead to great mistakes." And I am making a sincere effort to call attention to what I take to be foreseeable dangers of this judgment.

On your last point agreed about the politics/courts. But the Court now has made the double legitimacy an explicit part of the British constitution. This is why I think par. 57 is so problematic. (That's my liberalism if you will; if you like direct democracy, then you think this is a good opening.)