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Briefing Note: the Supreme Court and Article 50 – what Dicey really said

David Green, 3 December 2016

In November the High Court decided that the Government had no power to give notice to leave the EU under Article 50. Leaving the EU would entail changes in the law that embodied the rights of citizens and such changes could not be brought about by the prerogative power but only by primary legislation in Parliament. The court considered the referendum only advisory, even though in the Parliamentary debate it was made clear that the decision would be implemented by the Government.

On 5 December the Supreme Court will hear an appeal against the High Court decision. The decision of the High Court should be reversed because it wrongly interpreted our constitution.  The judges argued that the prerogative power was being used to take away rights granted by primary legislation in the form of the European Communities Act of 1972. But it is not being used for that purpose. The Government has said that it will repeal the European Communities Act by putting forward a Great Reform Bill. The prerogative power is being used to implement an Act of Parliament, the EU Referendum Act of 2015, which had cross-party support, and to honour the Government’s statement in the official document it circulated to all households (famously at a cost of £9 million). The Government leaflet said: ‘This is your decision. The government will implement what you decide.’ And during the Commons debate Foreign Secretary, Philip Hammond had emphasised that: ‘This is giving the decision to the British people.’

The High Court argued that Dicey was ‘still the leading account’ but then went on to quote selectively from An Introduction to the Law of the Constitution and to ignore other passages where he explained his interpretation more fully. They quoted Dicey saying that parliamentary sovereignty meant that Parliament has:

‘the right to make or unmake any law whatever; and further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.’ (p. 20) This has the corollary, they thought, that ‘it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law’ in Dicey’s view:

‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.’ (p. 96, p. 101.)

Quotations are from the online edition of An Introduction to Study of the Law of the Constitution, available here:

Dicey’s argument was in truth more subtle than the High Court judges seem to have realised. He described how our constitution was made up of both laws and conventions. There was ‘the law of the constitution’ – the enforceable laws that laid down con­stitutional principles – and the ‘convent­ions of the constitution’ – the habits and traditions that are followed but not enforced. The conventions had one ultimate object: ‘to secure that Parliament, or the Cabinet which is indirectly appointed by Parliament, shall in the long run give effect to the will of that power which in modern England is the true political sovereign of the State – the majority of the electors or… the nation’. (p. 249.)

Dicey strongly maintains that ‘the electorate is in fact the sovereign of England’. The whole people act through a ‘supreme legislature’ whose conduct is ‘regulated by understandings of which the object is to secure the conformity of Parliament to the will of the nation’. All the conventions that uphold the supremacy of the House of Commons in practice uphold the ‘sovereignty of the people’. To demonstrate his claim Dicey examines three conventions: (1) the requirement that the powers of the Crown are exercised through ministers enjoying the confidence of Parliament; (2) the convention that the House of Lords gives way to the Commons; and (3) the right of monarchs to dissolve parliament against the wishes of the majority of MPs (no longer possible since the 2011 Fixed-Term Parliaments Act).

The rule that the powers of the Crown must be exercised through ministers who are members of the Commons or the Lords and who ‘command the confidence of the House of Commons’, in practice, means that the elected part of the legislature appoints the executive. It also means that ministers must ultimately carry out, ‘or at any rate not contravene, the wishes of the House of Commons’, which in turn means they must reflect the wishes of the electorate as interpreted by MPs. (p. 250.)

The same is true of the convention that the House of Lords is expected in every serious political controversy to give way to the will of the House of Commons. The guiding principle, said Dicey, is that the Lords must yield or the Crown intervene when it is conclusively shown that ‘the House of Commons represents on the matter in dispute the deliberate decision of the nation’. And if the deliberate decision of the electorate is the vital consideration, then conventions guiding the House of Lords and the Crown are rules ‘meant to ensure the ultimate supremacy of the true political sovereign’, the electorate. (p. 250.)

Dicey also shows how the pre-2011 right of the Crown to dissolve parliament affirmed the political sovereignty of the people. At first glance this power looks like a continuation of earlier royal absolutism, but as Dicey put it, the reason why the House can in accordance with the constitution be dissolved ‘is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors’. In such cases dissolution is in its essence ‘an appeal from the legal to the political sovereign’. A dissolution is allowable ‘when­­­­ever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation’. (p. 251.)

He gives as an example the dissolution of 1834, when the king replaced Melbourne’s Whig administration with one led by Peel. He dissolved Parliament, but the election in 1835 went strongly against Peel’s administration and the Whigs returned soon afterwards. According to Dicey, the essential point was that ‘it is the verdict of the political sovereign’ or nation that ultimately determines the right of a Cabinet to retain office. The power of the ruler was only to require MPs to test in an election that they were reflecting the views of the electorate.

All the conventions of the constitution, said Dicey, were ‘intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State’. Constitutional maxims are ‘subordinate and subservient to the fundamental principle of popular sovereignty’. (p. 253.)

The intention of the litigants in the High Court case was to try to use the courts to overturn the result of the referendum. The judges quoted passages from Dicey that appear to provide a rationale. But Dicey would have recognised the referendum as a ‘deliberate decision of the nation’ and clearly took the view that it was the Government’s duty under the constitution and its conventions to implement it. The Government is not planning to use its prerogative powers to obstruct the will of the people or to take away legal rights, but to give effect to the clearly expressed, legally authorised, decision of the electorate.

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