The Legal Prevention of Brexit The European Union (Withdrawal) Bill passed its second reading despite two acts of gross hypocrisy by the Labour Party, which now seeks to prevent Brexit whilst continuing to deny that this is its policy. The first hypocrisy is to have a policy which contradicts Labour’s manifesto commitment to support Brexit. The second hypocrisy has been to claim that, because it will provide for an extremely wide use of secondary legislation, the Withdrawal Bill represents an unprecedented ‘power grab’ by Government. For, of course, the post-war Labour Party has been an exceedingly enthusiastic user of secondary legislation in order to ‘greenlight’ purportedly improving Government action, and the European Communities Act 1972 s. 2(2) is very arguably the most broad such provision known to the UK constitution. I have discussed this hypocrisy about secondary legislation generally in an earlier article on BrexitCentral. In essence, far from doing something new, the Withdrawal Bill is merely the mirror image of the 1972 Act. But I want here to discuss an important aspect of this on which the Labour Party now dwells: Henry VIII clauses. For I am extremely sorry to have to say that these clauses are very likely to be the basis of an argument that will prevent Brexit. Though the Labour Party and Remainers of other affiliations will, initially at least, no doubt be delighted about this, it will have constitutional consequences which cannot be predicted, save that they will be extremely unwelcome. But, although Parliamentary criticism of the Henry VIII powers to be provided by the Withdrawal Bill continues to mount, it is not in Parliament that the blow to the UK constitution will be dealt. Henry VIII clauses enable an agency of Government to itself amend primary legislation so that an Act of Parliament may be changed without any Parliamentary consideration of those changes. It must be remembered, though it seems largely to be forgotten in the current political controversy, that these clauses cannot be made into law without some Parliamentary scrutiny because it is, of course, Parliament that must pass the original enabling Act of primary legislation that conveys the Henry VIII power. Nevertheless, it should not be denied by anyone of good faith of whatever political persuasion that these clauses inevitably carry a threat to accountability and legality. They are, indeed, a particular example of the problems caused by the immense post-war growth of secondary legislation as an inevitable aspect of the growth of Governmental power over this time. The 1972 Act cannot, however, be regarded as the most sweeping attempt ever made to create Henry VIII powers. The hypocrisy of the Labour Party’s new found suspicion of these powers is truly contemptible in light of the Government of Mr Tony Blair’s Legislative and Regulatory Reform Act 2006. As originally introduced into Parliament, the Legislative and Regulatory Reform Bill would have given Government power to amend any Act of Parliament – more than a decade later it still seems incredible to write this – when this was deemed necessary in order to reduce the ‘regulatory burden’ of ‘red tape’. In part because of the experience of what had happened under the European Communities Act, this was found to be too much, and the 2006 Act was passed with amendments that made its enabling powers consistent with what had become established practice which, though itself unsatisfactory, was at least not made very much worse. Despite the intensity of the Parliamentary opposition to the Withdrawal Bill, I am given to understand by persons much more competent to judge than I that, with competent management of its business, the Government can secure the Bill’s passage in essentially its current form. Unfortunately, when it has done so, the Government will then encounter a more formidable hurdle. For at that point I expect an application for judicial review of the Withdrawal Act will brought by a party acting in a capacity similar to Mrs Gina Miller, if not Mrs Miller herself, whose application for judicial review of the Government’s proposed notification of the UK’s intention to withdraw led to the Supreme Court requiring, in Miller v The Secretary of State for Exiting the EU, the passage of the European Union (Notification of Withdrawal) Act 2017. And I expect both that the Supreme Court will take this case and that it will find against the Government. I cannot then predict with any precision what shape the consequent constitutional crisis will take, but at the heart of that crisis will be legal prevention of the political decision to leave the EU. Sovereignty of Parliament and the European Communities Act 1972 One useful way of looking at the doctrine of sovereignty of Parliament is to focus upon its complete opposition to judicial supremacy. In a constitution like that of the US, the Supreme Court enjoys constitutional supremacy in that it is the legal sovereign. The Supreme Court, and inferior courts which derive their power from it, can rule whether acts of the legislature and executive are consistent with the constitution and can strike them down if it holds that they are not. Leaving aside whether this formal legal account accurately captures the political order of constitutions like that of the US, this sort of constitution obviously requires a great deal of sophisticated compromise based on restraint by the courts in order that the legislature and the executive may do their legitimate work. Nevertheless, the US Supreme Court is the legal sovereign, ultimately supreme over the legislature and executive. Sovereignty of Parliament asserts the supremacy of Parliament. Any law which Parliament wishes to make is what legal philosophers call the positive law. Of course, the law may be so foolish that it is fruitless or worse, but it is the legally positive law and the courts must regard it as such and cannot strike it down. The working of the UK constitution was always more complex than this brief statement makes it appear and has become much more so since the passage of the Human Rights Act 1998, but even that Act did not formally challenge the constitutional position that Parliament is the legal sovereign of the UK. It was, however, predicted at the time of the passage of the 1998 Act that this formal position would be eroded as the courts would inevitably assert the powers they had been given by that Act in a way increasingly incompatible with sovereignty of Parliament. This is indeed what has happened, not least in asylum and immigration matters which touch on concerns about the free movement of labour which undoubtedly played a large part in the Brexit vote. The process of erosion has now assumed a formal aspect with the Miller case, and the situation is about to get worse for those who endorse Brexit and sovereignty of Parliament. An essential aspect of sovereignty of Parliament is that there can be, as the principal formulator of the doctrine, AV Dicey, put it, ‘no marked or clear distinction between laws which are not fundamental or constitutional and laws which are fundamental or constitutional’. In the US, the Constitution is fundamental and other laws can be weighed against it and found wanting. If one is to weigh ordinary laws against fundamental laws in this way, one must have a constitutional court, such as the US Supreme Court, to do the weighing. But that the UK Parliament is sovereign means both that it can pass such primary laws as it wishes, and that such laws are of equal legal weight, so that one can always repeal another. It is therefore essential that, if the UK is to remain a constitution of Parliamentary sovereignty, the UK must know no ‘constitutional’ laws. But the decision in the Miller case turned on the Supreme Court maintaining that the European Communities Act 1972 was one of a very small, perhaps half a dozen, number of ‘constitutional statutes’ (or ‘instruments’) such as Magna Carta and the Bill of Rights. It was for this reason that the Supreme Court could, as a matter of constitutional law, command Parliament to take certain steps to repeal the 1972 Act. Parliament had intended that the 1972 Act would be repealed after the UK Government had, by exercise of its normal prerogative power in foreign affairs, given notice of the UK’s intention to withdraw from the EU. It is not precisely accurate to say this but let us say that the giving of notice would impliedly repeal the 1972 Act. In Miller, the Supreme Court required that the Government secure the passage of the European Union (Notification of Withdrawal) Act 2017, s. 1(2) of which explicitly ousted the 1972 Act, as a condition of giving notice to withdraw, and so make possible the explicit repeal of the 1972 Act under cl. 1 of the European Union (Withdrawal) Bill now before Parliament. The Supreme Court came under fire for trying to prevent Brexit by its decision in the first Miller case. This criticism was unfair. There is no stronger academic critic of our senior judiciary than myself, and I would not dream of attributing a crude political motivation of this sort to it. The stakes were, in fact, higher in Miller. For what the senior judiciary successfully accomplished in Miller was the creation of the Supreme Court as a constitutional court, the latest step in the process of transforming the British constitution from one of Parliamentary sovereignty to one of judicial supremacy that has been gathering pace since the passage of the Human Rights Act 1998. The heart of this process now is the recognition of the existence of constitutional statutes, for the existence of such statutes inevitably requires judicial supremacy in the interpretation of their interaction with other statutes and with Government powers. There is academic argument that something like the constitutional statute has long existed. But their legal recognition was made possible only by the atmosphere of judicial assertion of power created by the Human Rights Act 1998, and the judgment which in 2002 introduced the constitutional statute, Thoburn v Sunderland City Council, could not have been handed down in the prior atmosphere of judicial respect for Parliamentary sovereignty. Thoburn gained popular notoriety as the ‘metric martyrs’ case, but its constitutional innovation, which in the case itself overwhelmed proper consideration of the pernicious criminal prosecution the case endorsed, is all but unknown to the public. The immense constitutional change that has taken place will give rise to equally immense constitutional problems as the electorate comes to realise that, without any public discussion the common citizen could possibly understand, and despite Brexit, sovereignty of Parliament has been brought to an end. The first true flashpoint is not far off. It will come as soon as the European Union (Withdrawal) Bill receives the Royal Assent. The European Communities Act 1972 and Henry VIII Clauses The Government received much public criticism around Miller for wishing to give notice to leave by exercise of a foreign policy power based on the Royal prerogative derived from the days when the Kings and Queens of England were politically sovereign. It was claimed this was an abusive exercise of an antique power inconsistent with modern democracy. Though the extent to which the Supreme Court judgment itself contributed to this criticism was limited, that the Court unarguably did give the point some weight was very disappointing, for it was a complete red herring. The UK Government’s foreign policy power remains in substantial part a prerogative matter, but this is merely a consequence of England’s long constitutional history. All other countries have similar foreign policy powers, though, of course, they are almost always derived from a relatively recent written constitution, and they do so because it incontrovertibly is the case that some such powers are necessary for the proper conduct of government. The Henry VIII clause is, of course, a particular legal device of similar constitutional pedigree to the Royal prerogative, and has already been criticised for this reason in public debate about the Withdrawal Bill. But, whilst the Withdrawal Bill must and does provide for very considerable Henry VIII powers, criticism of this provision is also in an important sense a red herring for the same reason that criticism of secondary legislation as such is hypocritical. These powers have become central to modern government and in particular were central to the European Communities Act 1972. There is, however, cause for real concern about the use to which criticism of Henry VIII powers may be put when we try to evaluate the prospects of another Miller. Without going into the reasoning in Thoburn, it is uncontroversial to state that limiting the possible effect of Henry VIII clauses on the European Communities Act 1972 and changes to the UK law made pursuant to it was at the heart of the assertion of the existence of constitutional statutes in that case. The confirmation by the Supreme Court in Miller of what was done in Thoburn can readily be applied to the limitation of such clauses now. I do not think that there can be any doubt that our courts would take a second Miller. It is more controversial to say this, but I myself do not see how the Supreme Court can then do other than find against the Government if the second Miller’s argument is to be that Henry VIII repeal of the European Communities Act, or other legislation pursuant to its purpose, contradicts the constitutional status of the 1972 Act. The least that can be said about the situation prior to Thoburn is that giving effect to EU law was difficult to reconcile with sovereignty of Parliament. But, drawing on Thoburn and the first Miller, the argument in the second Miller would be that the 1972 Act is a constitutional statute which cannot be repealed by other than primary legislation, and this extends to the enormous changes to UK law that have been carried out by other legislation unarguably pursuant to the purpose of the 1972 Act. Of course, the Withdrawal Act which repealed the 1972 Act would itself be an Act of primary legislation. But the purpose of the 1972 Act, of giving UK effect to the generality of EU law, has been carried out by thousands of other pieces of UK legislation, and these cannot possibly be identified, much less dealt with, in the Withdrawal Act, for this would be an impossibly onerous task of legislative drafting. This task would not be made less impossible if the necessary changes had, to a much greater degree than now, be made by other Acts of Parliament. If and when the Supreme Court in a second Miller limits the Government’s power to use secondary legislation in general and Henry VIII clauses in particular to effect the immense legal change which leaving the EU will require, the Court will certainly seriously hinder, and in all likelihood prevent, Brexit. Superior courts including the Supreme Court, aware of the necessity of preserving the comity between the branches of government on which the UK constitution rests, will be hesitant to go this far. It is possible that, the European Communities Act 1972 being repealed by the European Union (Withdrawal) Act, the courts may hold that other legislation, including other Acts of Parliament, pursuant to the 1972 Act may be impliedly repealed. This would, however, run counter to the process of assertion of judicial supremacy which led to Miller, and I do not expect it. It would confine the scope of constitutional statute reasoning to the very small number of instruments – Magna Carta, the Bill of Rights, etc – already identified, which the Withdrawal Act is about to reduce by one. What I expect to happen is prefigured in the following chilling dicta from R (Buckinghamshire County Council and others) v Secretary of State for Transport, a 2014 Supreme Court judgment which links Thoburn to the first Miller: It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation. The point, I am afraid, is that, since the passage of the Human Rights Act 1998 (itself now claimed to be a constitutional statute, creating its own immense possibilities for the exercise of judicial supremacy), our courts have repeatedly challenged Parliamentary sovereignty by interpreting statutes in such a way as to defeat the undeniable intention of Parliament expressed in those statutes. The legal (and so political) atmosphere they have created by doing so has become self-propagating. A party wishing to make a second Miller application can do so, and it will have to be decided in line with the law of the first Miller. That law requires the Government to be defeated. What to do now? The last thing Mrs May’s Government needs is another fight on another front, but if it wishes the UK to leave the EU, it must pass, or at least have in all but complete preparation, an Assertion of Parliamentary Sovereignty Act which provides that the UK constitution does not recognise the existence of constitutional statutes. This will make a second Miller impossible, or at least make its success impossible. One can hardly imagine the ferocity of the political and legal fight that will commence with the introduction of the Assertion of Parliamentary Sovereignty Bill. I nevertheless urge the introduction of this Bill because I am all but certain that, if it is not introduced, Brexit will not take place, or at least it will not take place under the British constitution as, after Miller, it now stands. What the political response of an electorate that sees its referendum decision thwarted by the courts, the latest such example of its will over matters related to immigration being thwarted in this way, I do not know. We look into the abyss. We have been brought there by courts which, since the passage of the Human Rights Act 1998, have continuously undermined the sovereignty of Parliament, and have in a sense now lost control of the process.