My Constitutional Law lecturer at university, the late Professor Ralph Carnegie, was of the view that the Constitution, with a capitalized “C”, and signifying the written document was but a part of the constitution (small “c”) of a jurisdiction; this latter signifying the panoply of practices and conventions constituting the rules of governance. I think that it was Ralph too, as I later reluctantly came to know him, who disabused us of the populist notion that Parliament could do anything except make a man a woman. In his view, so long as it was not constrained by Constitutional regulation, it had the power to declare that in law a man was a woman. And since the definition of a man and a woman is a legal precept for most purposes, including that of capacity to contract a marriage at common law, condign drafting might easily achieve this objective.
I trust that I have not bored my readers as yet, but I recalled both of these statements on Tuesday last when the United Kingdom Supreme Court, in an 8 to 3 decision, upheld the earlier judgment of the Divisional Court of England and Wales that the Executive, acting through the Secretary of State, did not have the constitutional power to give the necessary Notice of Intention to withdraw from the European Union under Article 50 of the Treaty without the prior authorization of Parliament.
This decision reaffirms the supremacy of Parliament over the Executive…, as it should be. We in the region have come to accept a contrary ordering, especially where, out of either constraint or gratitude, there exists some Cabinets that can easily outvote opposing voices in Parliament even though the Constitution expressly provides, at section 64(2) in our case, that “The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the government of Barbados and shall be collectively responsible therefor to Parliament “. [Emphasis added].
It also reinforces the first Carnegian thesis by showing clearly that it is possible for there to be a constitution (which was the basis of the decision) without there being a Constitution (which the UK assuredly does not have).
The enhanced numerical composition of the Court heralded the constitutional significance of the decision, although the notion of an enlarged panel in British jurisprudence is not peculiar to constitutional issues. Indeed, only this week, I lectured on the decision in Murphy v Brentwood District Council where the then highest court in England, the House of Lords, transformed itself into a seven-member court (up from the usual five) to deliver its judgment on the existence of a duty of care in negligence.
The decision itself is understandable, although it might be considered that parliament had already devolved its supreme authority to the people in the “Brexit” referendum. The notion that parliamentarians are mere representatives of the popular will divided by constituency would tend to suggest some exegesis of vox populi, vox curiae.
However, the decision turned on the much more arcane point that section 2 of the European Communities Act, the statute that gives effect to the UK’s obligations under the EU Treaty, created a process whereby EU law became an overarching part of UK law. So long as it remained in force, it operated as a transfer of legislative power by the subordinate UK parliament to the EU law making bodies and thus could be annulled by Parliament only.
Nor did the provision that EU law would apply only in the absence of withdrawal confer a power on the Executive to withdraw from the Treaties, given that any such withdrawal would effect a change in UK domestic law and since their Lordships perceived a vital distinction between variations in UK law resulting from changes in EU law and those arising as a consequence of withdrawal from the EU. To their minds, this initiative would have the inevitable consequence of removing one source of UK law, a fundamental change that constitutionally required Parliamentary assent. Too besides, withdrawal would remove some of the currently existing rights of UK citizens under EU law, a phenomenon that is not permitted without parliamentary approval.
The majority also dealt with the rather nice argument that the existence of the Ministers’ accountability to Parliament, referred to in its Barbadian formulation above, allowed Parliament to play a sufficiently substantial role in the affair. According to the majority, “It was also suggested that it should not cause surprise if ministers could exercise prerogative powers to withdraw from the EU Treaties, as they would be accountable to Parliament for their actions. This seems to us to be a potentially controversial argument constitutionally. It would justify all sorts of powers being accorded to the executive, on the basis that ministers could always be called to account for their exercise of any power. There is a substantial difference between (i) ministers having a freely exercisable power to do something whose exercise may have to be subsequently explained to Parliament and (ii) ministers having no power to do that thing unless it is first accorded to them by Parliament”.
My preliminary view of the matter was that the purported withdrawal could not itself remove existing law in the UK, already a fait accompli, even though it would do so eventually. Some reasoning akin to this appears to have found favour with one of the dissentients, Lord Carnwath. In his opinion;
“Service of an article 50(2) notice will not, and does not purport to, change any laws or affect any rights. It is merely the start of an essentially political process of negotiation and decision-making within the framework of that article. True it is that it is intended to lead in due course to the removal of EU law as a source of rights and obligations in domestic law. That process will be conducted by the Executive, but it will be accountable to Parliament for the course of those negotiations and the contents of any resulting agreement. Furthermore, whatever the shape of the ultimate agreement, or even in default of agreement, there is no suggestion by the Secretary of State that the process can be completed without primary legislation in some form.
The highest court in the UK has now ruled on the matter. Not everyone will agree with it, but it is, nevertheless, the correct one. Which serves to bring to mind another Carnegian bon mot, “ The decision of the highest court is not right because of superior reasoning, it is right because there can be no appeal from it.”