The Least Dangerous Branch: Whose Role is it to Protect Parliamentary Sovereignty? Miller and the Human Rights Implications of Brexit
One of the extraordinary outcomes of the Brexit referendum has been the insistence that the Government is entitled to exercise its powers in relation to the Brexit process without involving Parliament. In a constitution whose central principle is Parliamentary sovereignty, such claims must be viewed with deep suspicion. Human rights are already precarious if left in the hands of a sovereign Parliament, especially where, as in the UK, the legislature is heavily dominated by the executive. This is even more so if Parliament can be sidestepped. It is therefore of immense importance that the High Court in Miller stepped in to protect the power of Parliament against the executive. Bickel argued 50 years ago that, in holding the balance of power between the legislature and the executive, the Court is the least dangerous branch. Bickel’s ringing claim holds most true when the Court acts, not to exert its own power, but to protect the power of Parliament.
It is telling that the Government invoked the royal prerogative to justify its claim to sidestep Parliament in relation to Article 50. As Lord Reid put in 1965: ‘The prerogative is really a relic of a past age, not lost by disuse but only available for a case not covered by Statute.’ (Burmah Oil (1965 AC 75 at 101) Only with the tacit acquiescence of Parliament can the continued existence of prerogative powers be reconciled with Parliamentary democracy. The Government therefore argued that Parliament should be regarded as having intended the executive to exercise the power to leave the EU without Parliamentary participation.
The Court’s rejection of this argument was based on its articulation of the fundamental constitutional principles which should inform statutory interpretation. In a system of Parliamentary sovereignty, against the reality of executive domination, the principle that Parliament is free to legislate as it wishes is subject to a strong presumption that it is aware of such constitutional principles and respectful of them. The court reiterated several such principles: most importantly, that Parliament does not intend to legislate in a way which defeats fundamental human rights or precludes access to the courts; and that the Crown cannot use its prerogative powers to alter domestic law. These presumptions can be overridden by Parliament, but the stronger the constitutional principle, the more difficult it is to rebut. This means that it is ultimately the court that has the responsibility for ensuring that Parliamentary sovereignty is exercised constitutionally.
The application of these principles has two important implications for the role of Parliament in relation to the Brexit process. Firstly, the Court held that in enacting the European Communities Act 1972, Parliament clearly intended EU rights to have effect in domestic law. This effect should not be capable of being overridden by the executive exercising its prerogative powers.
Secondly, despite claims that Parliament can be sidestepped because ‘the people have spoken’, the Court affirmed that, in law if not in politics, the result of the referendum was advisory only. Applying the strong principles of constitutional interpretation set out above, it held that the Referendum Act 2015 must be interpreted in the light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy. This meant that a referendum on any topic can only be advisory for Parliament unless very clear statutory language is used to rebut this presumption. The Referendum Act 2015 contained no such language.
The human rights implications of leaving the EU are profound, particularly in relation to the right to equality, a fundamental right in EU law. The Court acknowledged that a key right which will inevitably be lost will be the ability to refer to the CJEU in case of breach of such rights. At the same time, the future of the Human Rights Act remains precarious. With neither a justiciable bill of rights, nor the binding nature of EU rights, Parliament remains the last custodian of human rights in the UK. The High Court in Miller asserted a crucial judicial role in insisting on strong constitutional presumptions that Parliament does not intend to undermine fundamental human rights, and that the executive cannot at its own whim act in a way which undermines those rights. It is to be hoped that the Supreme Court upholds this position.