The Rule of Law

Miller v The Minister of State for Exiting the European Union [2017] UKSC 5

On the 3rd November 2016 in Court Room 4 in the Royal Courts of Justice, the Chief Justice, the Master of the Rolls and a Court of Appeal Judge delivered the most important judgment for many years. The first few paragraphs read like a marvellous re-assertion of the rule of law. Citing Dicey, Coke and Bingham, the joint judgment correctly states that in a Parliamentary democracy, where sovereignty lies with Parliament, only Parliament by legislation can authorise the government to give notice to withdraw from a treaty, and only Parliament can enact the legislation to do so.

“The United Kingdom is a constitutional democracy framed by rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws. It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.” (Paras 19 and 20)

The judges were afterwards abused in the media. The Minister appealed to the Supreme Court.

In the Supreme Court the arguments of Richard Gordon QC on behalf of the Welsh Assembly were cogent. “A child of 6 could understand… there is a difference between having a power to do something and not having the power. If I tell a child that it may play in the house but may not play in the garden, that is the analogy. There is no power to do something by the prerogative that statute has taken away.”

On 24th January 2017, the Supreme Court held by a majority of 8 to 3 that it would violate the rule of law for the Prime Minister to give notice of leaving the European Union without the prior authority of an Act of Parliament, but that there was no obligation to gain the approval of the regional assemblies, nor of the Scottish Parliament.  “ We consider that, in light of the terms and effect of the 1972 Act, and subject to considering the effect of subsequent legislation and events, the prerogative could not be invoked by ministers to justify giving Notice: ministers require the authority of primary legislation before they can take that course.” (Para 101.)

However, the triumph of the rule of law was short-lived. The two main political parties issued 3 line whips to their MPs directing them to vote in support of a bill to give the Prime Minister authority. Surely this violates the rule of law? On 30th and 31st January with the 3 line whips in place, MPs debated and approved a second reading of a bill of 132 words, introduced by the Minister against whom the Supreme Court had decided a week earlier. The bill was forced through Parliament. In the House of Lords the Prime Minster sat in front of the throne as the peers debated the bill. This is very worrying because if Parliament can be managed by the 2 main political parties imposing 3 line whips, Parliament fails in its constitutional role of independent scrutiny. Gina Miller spent a fortune bringing the case to the Supreme Court. It is unethical, unjust and unconstitutional for MPs not to have a free vote.


About Dennis Paling

Dennis studied law in the 1960s, when the state or the local authority paid tuition fees, and students received a maintenance grant. He was taught by a law tutor who was blind, and who had a deep belief in justice and equality. Dennis espouses such causes as access to justice, animal rights and international fair play. He believes in freedom of speech, freedom of the individual, freedom from want and freedom from fear. He believes that law teachers have a duty to promote the rule of law. He also acknowledges that law is imperfect and an aspiration as much as a reality.

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