Tag Archives: ECHR

Rebuilding and renewing the constitution: the courts and the rule of law

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A new Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters appear on this blog throughout August, with this fourth excerpt identifying potential changes relating to the courts and the rule of law.

Recent years have seen growing scrutiny of the relationship between government, parliament and the courts, and the government’s attitude to the rule of law. Politicians have increasingly tended to push back against courts – which are said to have become too powerful in our constitutional arrangements, leading to a ‘democratic deficit’. Resistance to the European Court of Justice and the European Court of Human Rights seems to have evolved into a more general willingness to breach, or risk breaching, international law. Added to this have been disagreements over the appropriate bounds of legal scrutiny, with the government’s increasing use of ouster clauses – which exempt certain decisions from judicial review – attracting particular attention. And legal funding and administrative challenges continue to fuel expert concerns about access to justice. In this climate, the role of the government’s law officers, such as the Attorney General, in upholding the rule of law has come under increasing attention. These tensions have boiled over at times into very public attacks by ministers on judges and lawyers.

This is an area in which there could be significant ‘quick wins’ through communicating a change of attitude. Beyond this, various proposals for change have come from external expert bodies and parliamentary committees for improvements to the system. Such reforms – some of them quite minor – could help to settle the relationship between the political branches and the courts. This would help uphold the UK’s reputation as a bastion of the rule of law – with all the international political and economic advantages that confers. There are also proposals for wider-reaching policy change.

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The Article 50 judgement and withdrawing from treaties

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The coverage of last Thursday’s High Court judgement on Article 50 has understandably focused on its immediate consequences for the process by which the UK will leave the European Union. However, if upheld by the Supreme Court, it is also likely to have wider constitutional significance. In this post Harmish Mehta explores the implications of one part of the court’s judgement, that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law or diminish the rights of individuals. He suggests that this could mean that the government could not withdraw from the European Convention on Human Rights without parliamentary approval.

Part of the UK constitution is the judgements of its courts of law. Such judgements can have transformative and prolonged effects on UK constitutional practice.

On 3 November, the High Court (‘the court’) handed down its judgement in R (Miller) v Secretary of State for Exiting the European Union ([2016] EWHC 2768), which stated that the executive does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union (‘TEU’) for the United Kingdom to withdraw from the EU [para. 111]). The UK Supreme Court will hear the appeal against the judgement on 5-8 December.

Of course, Miller has a considerable impact on the prospects of the UK exiting the EU in the near future. However, it should not be forgotten that Miller is a judgement of wider constitutional importance. Subject to it being modified by the Supreme Court, it has the potential to shape the UK constitution beyond Brexit. This is partly the consequence of its appeal to, and development of, longstanding and far-reaching principles of constitutional law. It rivals even R (Jackson) v Attorney General ([2005] UKHL 56) in its exploration of the UK’s constitutional history and statements of apparent constitutional truisms.

In this post I will explore the implications of one part of the court’s judgement, which amounts to what I will call, for brevity alone, the ‘unmaking principle’. This principle is that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law, be it statute or common law, in any way, or diminish rights of individuals.

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