UK constitution in Dicey waters?

The upheaval of 2016 could overshadow every constitutional change since the late 19th century, writes Stephen Tierney, professor of constitutional theory at Edinburgh University and legal adviser to the House of Lords Select Committee on the Constitution in this year’s SLN Annual Review.

Following the vote to leave the EU last June, the UK government and most commentators believed “the decision to trigger Article 50 notification was a discretionary matter for the Crown”.

However, all bets were off after the High Court ruling in Miller.

Professor Tierney explains: “The court accepted the applicants’ argument that the relevant prerogative power had been displaced by legislation, in particular the European Communities Act 1972 (ECA).”

At the Supreme Court, this was upheld 8-3, with the Lord Advocate, James Wolffe QC intervening, Sewel Convention in hand. But the justices were unswayed. Lord Mance said that “conventions are incredibly important, but they are not legally binding. That is their nature,” while Lord Hodge remarked that the provision can be interpreted merely as a means of “preventing the convention from slipping away by desuetude or a change of practice…”, adding: “That doesn’t make the convention a rule of law”.

History could have taken a different turn, however, if crossbench peer and former Deputy President of the Supreme Court, Lord Hope of Craighead’s attempts in the House of Lords last year to have Sewel implanted in statute had succeeded. That measure was successfully opposed by the Advocate General, Richard Keen QC, perhaps causing the SNP to rue the day they committed to a boycott of the Lords.

Professor Tierney discerns three fundamental constitutional issues raised by the case, “the nature of parliamentary supremacy and its relationship to popular sovereignty as exercised through a referendum; the relationship between parliament and executive within the constitution; and the increasing entrenchment of devolution which seems to be moving the UK in a federal direction”.

Neither court saw the Brexit referendum, as “constitutionally significant”. But Professor Tierney thinks the reasoning inconsistent: “For a judicial approach that otherwise sought to take an expansive methodology to constitutional interpretation, looking behind constitutional form to the political realities of constitutional substance, this is puzzling.”

The court, he adds, went from an “inventive approach” to a “narrow formalism” and, after invoking the doctrine of parliamentary supremacy, failed to describe the political sovereignty “that underpins it”.

Professor Tierney notes that the High Court quoted Dicey, who said that “the judges know nothing about any will of the people except insofar as that will is expressed by an act of Parliament” only to misread him by concluding that, as such, the referendum was constitutionally irrelevant.

On the issue of a second independence referendum, the legal academic hedges his bets: “Much will also depend upon political circumstances: the outcome of the UK’s negotiations with the EU, the degree of satisfaction felt by the Scottish government with its role in this process, and of course the popularity of independence in the polls. But the stage is set, potentially, for the UK’s exit from the EU to coincide with, or to be followed shortly by, Scotland’s secession from the UK, unless a mixture of statecraft and prevailing circumstances intervene to stop either or both of these processes.”

View the Scottish Legal News Annual Review 2017 online here.