Lost in Dicey: judges, Brexit and the constitution

The Supreme Court’s Article 50 judgement was based on a constitutional fallacy that puts the stability of the United Kingdom at risk

Mick MoranOn 24 January this year the United Kingdom  Supreme Court dismissed the appeal of the UK government against the  decision of the English and Welsh Divisional Court (colloquially the Court of Appeal) over the legal conditions under which Article 50,  the ‘Brexit’ clause, could be triggered.  The consequence is well known: the government has been required to secure Parliamentary approval, in the form of statute, as a condition of triggering the Article.   The judgement has many ramifications, some of which are unfolding as I write, since the legislation has yet to finish its passage through both Houses.  Here, however, I want to examine, not the practical everyday politics of the decision, but what it tells us about the state of the UK constitution, and of the role of the courts in making sense of that constitution.  And it is important to examine these latter matters because the intellectual underpinnings of the judicial decision go to the heart of the stability of the UK as a unitary state.

Defenders of the principle of an independent judiciary were rightly shocked by the crude attacks on individual judges and on the judiciary as a group in the wake of the Appeal Court judgement. Labels like ‘enemies of the people’ carried threatening echoes of attacks on judicial independence in some of the worst autocracies of modern times. But at the heart of the Supreme Court’s own judgement was also an untenable position about the role of judges: that they are only neutral interpreters of the meaning of the constitution.   As their Lordships put it in the majority judgement, referring to the crucial issue of constitutional conventions: ‘Judges… are neither the parents nor the guardians of political conventions; they are merely observers’ (para 146). This Olympian view of judges was dismantled many years ago in John Griffith’s classic study. Judges, Griffith showed, expressed world views shaped by their own distinctive occupational culture and their elitist social origins.  And as a glance at the social composition of the present Supreme Court shows, the commanding heights of the judiciary are still marked by the elitist culture and social character that Griffith documented.

The result is that the Court’s judgement – both its judgement that the Westminster Parliament’s statutory approval was needed to trigger Article 50, and that the approval of none of the devolved legislatures was needed – shows an extraordinarily antiquated view of the constitution. These judges are still lost in Dicey, the greatest exponent of the supremacy of the Westminster Parliament. Indeed they approvingly invoke the Dicey tradition in speaking of ‘Parliamentary sovereignty as a fundamental principle of the UK constitution’; and they quote in their judgement Dicey’s famous remark that Parliament has ‘the right to make or unmake any law whatsoever’ (para 43).  ‘Parliament’ here means the Westminster legislature, and for a very particular reason.  Dicey’s influential version of the constitution was not fashioned in a historical vacuum.  It arose out of his consistent position on the greatest constitutional issue of his day: that created by Irish demands for Home Rule.  Dicey’s fundamental opposition to any measure of Home Rule was what led him to picture the Westminster Legislature as sovereign; Home Rule would have dismantled that edifice of supreme sovereignty.  A powerful constitutional ideology, one that still shapes the minds of the judicial elite, was thus originally formulated to legitimise a contingent, partisan constitutional position.

Dicey, we know, was on the winning side in the battle over Home Rule. But the wider war was comprehensively lost: first by the Irish settlement of 1921, which not only ceded independence to the twenty six counties, but created a semi-independent statelet in Ulster; and second, by the devolution settlements of the late 1990s.   The latter have two defining features: they ‘settled’ nothing, but introduced a continuous process of constitutional change in the United Kingdom; and this continuous process of constitutional change has produced a quasi-federal state in which the Diceyan formulations so appealing to their Lordships are utterly anachronistic.

For the Supreme Court the Westminster Parliament is still the sun around which all constitutional satellites rotate. But Parliamentary sovereignty was not only developed as an ideology to oppose Irish Home Rule.  It was conceived in an utterly different world from the one we now inhabit: one where most of the great international actors and interests that now hem in the British state simply did not exist. The result is that the Court has proceeded on the basis of a constitutional fallacy, and has compounded it by encouraging the Whitehall Executive to ignore the reality of nearly twenty years of post-devolution development.  The  result can be seen in the growing fragility of the Northern Ireland settlement in the wake of the recent Assembly elections; in the way the attempt to assert the Dicey doctrine is driving the Scots to a second independence referendum; and in the way a unionist constitutional ideology is being used to override the significance of the very different referendum results in England, Scotland and Northern Ireland.