UK Parliament or Executive: which is top dog in Britain’s constitution?

Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers –  to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.

Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.

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Brexit case Miller/Santos: third day digest

Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above). A report on the Supreme Court case is here: What if Eadie was right?

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

The Brexit court case (Miller/Santos): Day two digested

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here. A report/analysis of the Supreme Court case is here: What if Eadie was right?

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law.  I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU  law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without  Parliamentary sanction, and thereby remove directly enforceable rights.

The Brexit court case (Miller/Santos): Day one digested

Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?

Firstly, two extracts from the first day of this case (Oct 13)

Exchange between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:

SALES LJ: Am I right in thinking that you  say that the effect of the argument for the government  would be that there wouldn’t need to be a repeal of the  1972 Act or section 2 of it, it is just that the content  of the obligation in section 2, EU rights, would fall  away, because they would cease to be EU rights?
16   LORD PANNICK: Precisely. Your Lordship is very aware and  I am not going to enter into any political debate, but  your Lordship knows that the government have announced  that there is going to be a great repeal bill which is  to be produced some time in the next session. I say  that the consequence of the defendant giving  notification will be that at a point in the future, it  is inevitably the case that the United Kingdom leaves  the EU and the consequence of that, as a matter of law,  is that all of the rights enjoyed under section 2(1) and

page 55
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say  nothing about that. It will not affect those questions.  Those rights will fall away as a consequence of the  United Kingdom leaving the EU. Because when we leave,  there are no treaty obligations. That is the whole  point of leaving. And indeed that is the government’s  intention. This is not a happenstance, this is the  whole point of notification. Notification is intended  to remove the current substance of section 2(1) and  3(1).

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to limit the use of Human Rights laws to the most serious cases and exclude “trivial” ones) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to overrule primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.  

PLT Anti-Marketing cold-call blocking: not a ‘scam’ after all?

An attempt to close down a company accused by the UK Government of a cold-call blocking “scam” has hit something of a stalemate in the Court of Appeal. PLT Anti-Marketing Ltd charges £40 a year for a cold-calling and junk mail blocking service already available free from official providers. The court has quashed a judge’s finding that PLT breached regulations and Lord Justice Briggs has produced strong arguments in favour of the company despite an attempt by the Department of Business (BIS) to close it down.

Nevertheless PLT remains barred from pursuing its business as it wishes until a full trial – when judgment could turn against it. The litigation has so far been going on for more than a year and a half – during which time PLT has been able to continue charging current customers but not to take on new ones without telling them about the free service. The whole affair raises the issue of whether current legislation is adequate for dealing with alleged consumer scams of this sort.

The free cold-calling and direct mail blocking services are available from Telephone Preference Service (TPS – provided by Ofcom; see: Regulation 26 of the Electronic Communications (EC Directive) Regulations 2003) and the Mail Preference Service (MPS – offered by the Direct Marketing Association in co-operation with the Post Office). PLT takes the names of its paying customers and adds them to the free lists. It maintains a service for its customers to complain about any continued unwanted calls and mail, but that also links into the free official services. Customers continue to pay on a monthly or annual basis. 

The Department of Business (BIS) started investigating PLT in 2012. In April 2013 it issued a “public interest winding up petition” under Companies Act 1985 S.124A – and the matter has been bogged down in court hearings ever since.

What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about human rights issues. Enfield North MP Nick de Bois, for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are: 

Magna Carta – is it such a great charter?

The British Prime Minister, David Cameron, has declared children must learn about Magna Carta, the 13th century deal between England’s barons and King John, which he considers “the foundation of all our laws and principles”. He knows this because he has read it in a 1905 children’s book of history, Our Island Story.

   In reality Magna Carta has little to offer the modern reader – not least because most of it has been repealed or else was suppressed almost as soon as it was issued. Here is what is left of it. So is there any point in studying it? Perhaps, but not for the Union Jack waving reasons that Cameron wants it taught – and certainly not because it demands “other people [than the king] should have rights” as he believes. Indeed, it was an attempt to protect the privileges of an elite, not the rights of “the people”.

   The background to Magna Carta was the various foolish wars prosecuted by the English kings – Richard the Lionheart’s Crusade in the Middle East against Islamic forces seeking to dismiss the Christian westerners from their tottering Levantine holdings and King John’s attempt to assert his rights over France. None of this came cheaply, so the issue underlying Magna Carta was: could taxes be levied by the king without the consent of “the people”?

   In the 12th and 13th centuries, of course, “the people” was the barons and clergy and a small number of freemen, and when the barons revolted against King John (who succeeded his brother Richard to the throne in 1199) they were revolting against both the excessive taxations, required as a result of John’s French war, and the centralised power of the state, the absolutism that had trampled over their feudal rights – the rights they had in the lands they held as fiefs of the king.

Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

“For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

“In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.