Constitutional government, parliamentary democracy and judicial power

Apr 5, 2019

On Sunday 31 March, Sir Stephen Laws and I published a paper for Policy Exchange entitled Endangering Constitutional Government: the risks of the House of Commons taking control. The paper warned that some MPs had begun to unravel the relationship between Government and Parliament that is at the heart of our constitution. The Sunday Times covered the paper in their lead story and also ran an op-ed by us both which outlined the paper’s argument. The lead story focused on that part of our paper which warned that if MPs persisted in their unconstitutional course of action, the Government might end up advising Her Majesty not to assent to a Bill, while noting that we hoped it did not come to this.

Many public lawyers and academic lawyers were quick to dismiss the paper – often without seeming to have digested its argument – and some asserted, further, that the paper confirms that the real point of Policy Exchange’s Judicial Power Project (JPP), which I lead and of which Sir Stephen is a Senior Fellow, is to advance unrestrained executive power. David Allen Green of the Financial Times asserted that JPP should be termed “the Executive Power Project” and this was the title of Professor Thomas Poole’s recent contribution to the LRB’s website (whether chosen by Poole or the editors), in which he responds to our Sunday Times op-ed and articulates a wider critique of JPP. His scepticism in relation to royal assent is echoed in a letter to The Times, signed by many distinguished public lawyers and academic lawyers, including Professor Poole. In this short piece, I return to the argument of our recent paper and to the nature of constitutional government in a parliamentary democracy, answering some related criticisms of JPP.

Endangering constitutional government

The occasion for the publication of our recent paper was the progress, in the House of Commons, of attempts by a cross-party group of MPs to take over the parliamentary agenda, in order to act as a kind of shadow government, formulating policy in relation to Brexit, which the Government might then be forced to carry out, whether by way of motions holding the Government in contempt of Parliament or, especially, by legislation. Sir Stephen and I took the view that these attempts were openly and avowedly inconsistent with long-settled constitutional practice (not law), would result in ineffective government, and would compromise parliamentary and electoral accountability. Relatedly, we thought it was an unstable and risky constitutional gambit, which would likely provoke conflict between the Government which retains at least the formal confidence of the Commons and a cross-party group of MPs. The Standing Orders of the Commons protect the Government’s initiative in policy-making in various ways, especially in relation to Bills with financial implications, and we recommended that the Government rely on parliamentary procedure to this end.

If the Speaker were to allow subversion of those rules, we argued that the Government might prorogue the session of Parliament before the Bill in question had been assented to by both Houses. It might also, if the Bill was enacted by the Queen-in-Parliament, take this to be a tacit vote of no confidence and move a motion under the Fixed-term Parliaments Act for a general election. Finally, we noted that the Government might also advise Her Majesty not to assent to the Bill in question. Whether the Government was able to give such advice, and whether Her Majesty would be duty-bound to follow it if were given, were, we said, matters which were not straightforward. There was a risk that giving this advice would place Her Majesty in the midst of political controversy in which her constitutional duty was disputed. All the more reason, we argued, to hold back from advancing legislation in defiance of the principles protected by the current Standing Orders.

Our discussion of royal assent has been controversial and seems to have resulted in our wider critique of the activities underway in the House of Commons being largely overlooked. Professor Poole takes us to have said that the Government should advise the Queen to withhold assent, which he says is a “monstrous” attempt to get “the monarch to thwart Parliament in the interests of the executive”. He says we assume “that the UK executive has a separate source of democratic legitimacy, like the elected (and veto-wielding) US president”. This account of our argument is wrong. We did not argue that the Government should advise that royal assent be withheld. We pointed out that if a Bill were advanced by unconstitutional means, which we document, the Government might well consider giving this advice and Her Majesty would arguably be obliged to follow it. Our paper expressly says that the Government’s capacity to give this advice and Her Majesty’s duty to follow it are not straightforward and would be disputed, implicitly referring to the long-standing scholarly debate on this subject, and noting that the risk that Her Majesty might be drawn into controversy was a reason for MPs not to subvert the constitution. The advice in question would, we argued, be a rational response to the unconstitutional attempt by some MPs to govern without forming a new government. It does not follow that it would be politically tenable or prudent; indeed, clearly it would at best be fraught with difficulty.

Constitutional politics and constitutional practice

Poole argues that advising Her Majesty not to give assent is bad constitutional politics, for it would inflame conflict, sacrificing long-term constitutional gain for short-term political advantage. This argument takes for granted that the advice in question would be unconstitutional. If this is not so, the advice would be a constitutional means to defend the constitution, as well as to defend the Government’s judgment about the national interest, which it is obliged to attempt to secure, and for which it is accountable to the Commons for so long as it retains the confidence of the Commons. It may well be that the Commons would withdraw its confidence from any Government that gave this advice. However, that remains to be seen, not least since the premise of the whole discussion is that we are in the odd position in which the Commons is unwilling to withdraw confidence and yet is also willing to support the initiative of what is in effect a rival government. The confidence of the Commons cannot, we say, be withdrawn temporarily or piecemeal or for particular purposes. Unless and until confidence is withdrawn, the Government is entitled to insist upon its responsibility to govern, which arguably includes authority to advise Her Majesty not to assent. Again, that it may be imprudent, or politically disastrous, to give such advice does not establish that it is unconstitutional.

Poole’s more important argument is that advising against assent would be bad constitutional law. He must mean unconstitutional practice, for it is clearly not unlawful for ministers to advise the Queen not to give assent or for the Queen to withhold assent. The question of constitutionality turns, Poole says, on an apparent clash between two rules: (1) that the Queen acts on the advice of her responsible minsters and (2) that the Queen assents to legislation passed by the two Houses. He asserts that really there is no clash for the better view is that (1) does not apply to legislation. But taking for granted that there is a clash, he argues that it is simply resolved by noting that (2) is more important than (1), that it is consistent with the supremacy of Parliament secured in 1688. Parliamentary supremacy, he says, is about who has authority to legislate, and the answer must be the Houses of Parliament rather than the Queen’s ministers. Poole claims that there would be no constitutional wrong to vindicate or address by way of refusal of assent because the constitutional authority to pass legislation is not the Government’s and has not been taken from it. Instead, legislation has simply passed the two Houses in a politically, but not legally, unconventional way.

This analysis overlooks the constitutional novelty, and undesirability, of the proceedings now underway in the Commons, in which a cross-party group has taken over policy initiative, with help from the Speaker in dispensing with the Standing Orders of the House. The Standing Orders protect the Government’s position within the House, not as overbearing tyrant, but as the group of parliamentarians in whom the House has confidence, and who are answerable to the House, and who thus occupy the great offices of state and are to provide leadership and direction to the country and to Parliament, for which they are accountable to both Houses and subject to effective dismissal by the Commons if and when confidence is removed. Until confidence is removed, the Government is entitled to retain policy-making initiative, which is important for effective, coherent government and for democratic accountability to the people, for MPs are held to account at elections first and foremost on the basis of their support or not for rival programmes of government. The standing prospect of a clash between the Government and a rival government formed by a potentially shifting cross-party group of MPs is a problem, which the House’s own rules should prevent. The whole point of our paper, and op-ed in the Sunday Times, was to point out this risk which should be avoided. Departures from constitutional process unavoidably diminish the legitimacy of the outcomes procured by these means, as Sir Stephen pointed out in recent oral evidence to the Public Administration and Constitutional Affairs Committee. It is MPs who have departed from practice and principle in the recent innovation, and thus should abandon the continuing attempt. Our paper explains that the Government is not without options to respond and that the resulting institutional conflict would be damaging. The main part of the paper’s argument could have been conducted without discussion of how the Government might respond and this would have had the advantage of avoiding distraction. However, it seemed important to us to note that there were live options and that there was a risk they would be used.

The most controversial and difficult option would of course be advice to withhold assent. Pace Professor Poole, it is not obvious what sound constitutional practice requires here. He overlooks the long-standing scholarly discussion about the grounds on which Her Majesty’s assent might be withheld, and especially the constitutional authority of the Government to advise Her Majesty on point. Serious scholars from around the common law world have argued that the Government does have this authority. They might be wrong, but the point is far from unarguable. This is important because our argument was not that the Government would certainly be entitled to advise Her Majesty to withhold assent but that it was arguable. The case for so doing might well be stronger if or when a Bill (not legislation until given assent) had passed both Houses in violation of Standing Orders which exist to protect the Government’s responsibility to the electorate.

The logical relation between the two conventions is not as simple as Professor Poole asserts. There is good reason to think the Queen is never free to withhold assent on her own discretion. But it does not follow that Her Majesty should assent when her responsible ministers delay the submission of bills for her assent or advise her to withhold assent. The examples in the literature of when this might be appropriate include minority governments in a hung Parliament, a new government formed after the replacement of an old ministry and confronted with a Bill advanced by its predecessor during the same session, and the passing of a private member’s bill against the rigorous financial initiative conventions and procedures protecting the Government’s responsibility for public funds and charges. However, we took no settled view on this question in our paper. Instead we tacitly relied on the fact that this was a serious question amongst scholars, well before Brexit, as Rodney Brazier and Robert Craig have traced with care.

We agree entirely that the Government is not independent from Parliament in the way that the US President is. Its dependence on the continuing confidence of the Commons, and its related authority to provide policy initiative and a coherent programme of government, means that there has been no room in our system for an executive veto over legislation. It was unnecessary. However, change the logic of the system, with a cross-party group of MPs attempting to govern in spite of the Government, and there will arise incentive to block or delay assent to Bills advanced and passed in this way. We would not welcome such a change, as our article and op-ed make clear, and we look for a return to constitutional practice in which there is no pressure to revive or install a workable “veto”. Our whole point was that the constitutional experiment set in motion in the Commons would end badly.

The Judicial Power Project and constitutional government

The coverage of our paper in the Sunday Times prompted much critical commentary on twitter, at least amongst lawyers and academic lawyers, about JPP, commentary that has bubbled up from time to time since I worked with Policy Exchange to set up JPP in 2015. Professor Poole contributes to this genre by speculating about the concerns that animate JPP, which he says remain unclear. In fact, JPP’s perspective is spelled out clearly and up front on our website, and again (and again) in our events and publications, not least John Finnis’s 2015 lecture, “Judicial Power: Past, Present and Future”, introduced by the Lord Chancellor, attended by an audience including many senior judges, with a vote of thanks from Lord Justice Elias. Nonetheless, Poole goes on to say that JPP is not solely concerned about judicial power. Referring to my “writings on Brexit”, he attributes to me a more general intention to strip away institutional checks – political or legal – on executive power. He suggests that JPP’s animating philosophy, and by implication mine too, is “not a programme of constitutional conservatism in the spirit of Blackstone or Burke. It is an anarcho-conservatism more familiar from the work of counter-revolutionaries such as Carl Schmitt”. That is, I am said to have an authoritarian disposition, to treat constitutional limits as disposable or fungible, and to press for exceptional moments in which central authority might deliver “the will of the people”.

To the extent that Poole’s analysis relies on our recent paper, it simply misfires for the reason that the paper is not about judicial power and for that reason was not even published by JPP itself (a subtlety which escaped many critics). In any case, even if our paper were mistaken in its discussion about royal assent, the assertion that it amounts to an apology for unbridled executive power, or for any kind of circumvention of Parliament’s supremacy, is unfounded. Nothing in the paper or in any of JPP’s work is in the least hostile to the Government being accountable to the House of Commons nor, more generally, does JPP question judicial interference in policy-making because we think that accountability to Parliament, which we prefer, is ineffective. On the contrary, the paper explains the Government’s dependence on the Commons in some detail and JPP has defended the robustness and importance of parliamentary (political) accountability. If Brexit has confirmed anything about our constitution it should be how hard it is to govern without the support of a stable majority in the Commons and in Parliament generally. Our argument, with which Poole does not engage, is that reversing the role of Parliament and Government is unwise and contrary to fundamental principles of parliamentary government. What we aimed for in our recent paper was not maximal executive power but restoration of the ordinary operation of the executive in our Parliament and in our whole constitution, subject of course to rigorous scrutiny and accountability in Parliament. It is a belief in the effectiveness of those mechanisms, and in the capacity of parliamentarians to exercise real, political influence over the policy-making and other political decisions of the executive – as well as doubts about the appropriateness of applying legal reasoning to fundamentally political questions – that prompts us to question the extent to which accountability to Parliament should compete with or be displaced by accountability in the courts.

In any case, Poole paints with a very broad brush. His assertions about my scholarship and my contributions to public life over the last four years (or longer) are sweeping. The same holds for assertions by other senior colleagues, such as Helen Mountfield QC, Principal of Mansfield College, Oxford, who labels JPP “dangerous” or Dinah Rose QC, who terms it “sinister”.

Like all contributions to public debate, JPP should be subject to reasoned criticism. JPP challenges the assumptions of some lawyers, so it is perhaps unsurprising that criticism of our work has at times been over-heated. Reasonable disagreement is a central feature of political life, as Jeremy Waldron has argued at length: it should also be a feature of public discussion at large, including about the law, with openness to perspectives other than one’s own. It bears repeating that the concern of JPP – and my concern – is with the balance of the constitution, with defence of the Westminster constitution’s long-standing separation of political authorities from legal authorities. The expansion of judicial power – which many academics and some judges and lawyers welcome – should be controversial, should be subject to question, and can be objected to for its impact on good government, the rule of law, and democratic self-government. This line of argument is not remotely contemptuous of constitutional government, but attentive to it. It is small c-conservative to some extent, of course, although it is also open to the radicalism of democracy, in which the people, by way of their representative institutions and in accordance with constitutional practice, are free to decide to revise or reform law and policy. It is not party political. The concerns JPP acts on, the critiques it makes of the misuse of judicial power or the improper vesting of responsibilities in courts, are shared by many across the political divide, and by many judges and lawyers as well.

JPP’s work has been enriched by contributions from academics, lawyers, judges, journalists, and parliamentarians from within the UK and around the common law world and, again, from all sides of the political divide. Our collection of essays, Judicial Power and the Left, invited scholars on the left to recall and engage with the long-tradition of left-leaning scepticism of courts, a tradition that takes seriously the constitutional importance of government and is alert to the risks of law displacing politics. Former and serving judges have spoken at events we have organised and/or have written for us, including the former President of the Supreme Court of the United Kingdom, other former Supreme Court justices or Law Lords, the current Lord Chief Justice of England and Wales and his two predecessors in office, former and serving High Court and Court of Appeal judges, as well as judges, serving and retired, from around the common law world, including the Supreme Court of New Zealand, the High Court of Australia, the Supreme Court of Canada, and the Supreme Court of South Africa. Obviously not all these eminent jurists agree with us – far from it – but they have rightly been willing to discuss publicly ideas about judicial power without rancour. Likewise, together with other colleagues, I have been pleased to speak about JPP’s work to groups including the Bingham Centre for the Rule of Law, the Public Law Project, the All-Party Parliamentary Group on the Rule of Law, as well as before many parliamentary select committees.

More generally, JPP has taken care to solicit and publish critical viewpoints, as my colleague Professor Paul Craig kindly acknowledged in his article-length critique of JPP, first articulated at the 2016 ALBA conference at which we both spoke, and which Graham Gee and I were pleased later to publish in a special issue of the University of Queensland Law Journal and to make available on JPP’s website. In a recent lecture, Lord Hodge commended this special issue to the attention of his audience and noted JPP’s work more widely. I disagree with the detail of Craig’s critique, of course, but am grateful he engaged intellectually with our published work and also that he reiterated clearly that the scope of judicial power was a matter that fully warrants open public discussion.

The courts have a central, strategic place in any well-governed polity, as JPP has been at pains to stress since its inception. One should be able to vindicate settled legal rights, to have disputes fairly adjudicated according to law, and to challenge government action that falls outside the scope of its lawful powers. The question we have focused on is whether recent changes in the traditional role of courts, arising from human rights law, European integration, or domestic common law developments, should be welcomed. While not the last word on judicial power, it is hard to do much better than Lord Justice Singh in saying that:

“Judicial review is an important mechanism for the maintenance of the rule of law. It serves to correct unlawful conduct on the part of public authorities. However, judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone. We stress these fundamentals in this case because there have been times when sight appears to have been lost of them. As we have mentioned earlier, a huge amount of factual material has been placed before the Court. Many of the grounds of challenge have either been abandoned or, as has been explained above, have turned out on proper analysis not to raise points of law at all. Judicial review is not, and should not be regarded as, politics by another means.”

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) at [326]

This powerful statement of principle, which alas is sometimes observed in the breach, was reiterated by the Court of Appeal in R (Wilson) v Prime Minister [2019] EWCA Civ 304 at [56]. The context for its reiteration was the Court’s rightful rejection, in good company with the judges below, of the latest attempt to misuse court processes to attempt to block the UK’s departure from the EU. The responsibility of courts, as these judges rightly recognise, is to uphold settled law, including in disputes with the executive, not to serve as a roving check on the executive or still less to compensate for imagined deficiencies in parliamentary political accountability.

As these judgments make clear, litigation is sometimes, but should not be, politics by other means. In critiquing legal and constitutional changes that encourage, or require, courts to venture ever further into the political realm, JPP is not seeking to free the executive from all constraint. JPP is grounded in confidence in the common law tradition of parliamentary government and the rule of law. The Westminster constitution provides for an intelligible relationship between the Government and Parliament – the latter is not simply dominated by the former, political accountability is important, and parliamentary democracy is good way to be governed over time. It is important to elucidate the intelligibility of this relationship because and to the extent that it is relevant to judicial review, as it was in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and in R (Evans) v Attorney General [2015] UKSC 21. It is of course also an important subject in its own right, which we have not run to ground. JPP’s landmark publications that address the executive-legislative relationship, and its relevance to judicial action, are Timothy Endicott’s lecture on the idea of executive power in our constitution and John Finnis’s two lectures on judicial power and the interplay between Government and Parliament both at large and then in the special context of the UK’s entry into and withdrawal from the EU – all three lectures celebrating the unconditional supremacy of Parliament over Government as source of judicially applicable law. I note also Jason Varuhas’s paper on the risks that judicial review may displace political accountability in some types of case, which complements my critique with Christopher Forsyth of the majority judgments in Evans.

There is nothing in any of this body of work, or anything else JPP has published, which amounts to setting aside constitutional norms or disposing of inconvenient constitutional restraints in service to “the will of the people”. As for my own writings on Brexit, I have defended the legitimacy of the referendum (as a technique of parliamentary democracy), commented extensively (like every other constitutional lawyer in the country) on the Miller litigation, considered the relationship between our system of parliamentary democracy and entry into and withdrawal from the EU, addressed the relationship between human rights and EU membership, given evidence on the EU (Withdrawal) Bill, as it then was, and so forth. I am not sure how any of this amounts to “anarcho-conservatism”, whatever that may be. It was intended to be, and is, a defence of a venerable, respectable understanding of and appreciation for the Westminster forms of parliamentary democracy, rather than a collapse into populism. It is gratifying that many senior jurists and thinkers seem to concur and to agree that forceful criticism of an expanded role for courts in our constitution is perfectly legitimate and requires engagement.

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