Brexit: the Supreme Court Judgement and the selective use of history

Professor Keith McLay, Pro Vice-Chancellor Dean of the College of Arts, Humanities and Education at the University of Derby, discusses how participants in the Brexit debate are choosing historical examples to support their judgements.

In a previous post, it was suggested that the popular shock expressed at the Scottish Court of Session upholding the legal challenge to the Prime Minister’s prorogation of Parliament belied a lack of historical understanding. Fast forward to the final judgement of the Supreme Court on the same case and we find the Justices flight of foot in their choice of historical examples to support their judgement.

In Paragraph 32 of the Supreme Court’s judgement in Miller v The Prime Minister and Cherry & Others v Advocate General for Scotland, the Justices cite the relationship between the Stuart Kings and Parliament in the 17th century, and specifically the 1610/11 Case of Proclamations. They are used as evidence and example that the Courts have long many a century exercised judicial oversight of the executive and that this oversight has been imbued with a political complexion.

Perfectly true. In the early 17th century, increasing concern about James VI & I’s use of proclamations without parliamentary consent came to a head when grievances against the King issuing proclamations barring new buildings in London and the manufacture of starch and wheat (I know, an odd combination of issues) were referred to the Commons. In turn, the Court of the King’s Bench was asked for a ruling on the legality of the James’ action.

Limits of prerogative powers

Sir Edward Coke, Chief Justice of the Common Pleas, handed down the judgement on behalf of the Bench, writing that ‘The King has no prerogative but that which the law of the land allows him’. This was the very same quotation cited in Paragraph 32 and led the Supreme Court to conclude that the ‘the limits of prerogative powers were set by law and determined by the courts.’  Perhaps.  But perhaps specifically in that example in 1610/11.

Some 76 years hence, still with the Stuart Kings (on this occasion James VI & I’s grandson, James VII & II) and Parliament, there was another case on prerogative power, which resulted in a quite different judgement. In 1686 King James VII & II, a Roman Catholic, issued an army commission to his fellow co-religionist, Sir Edward Hales.

The holding of high civil or military office by Roman Catholics was, however, prohibited by the Test Acts of the 1670s, but the King claimed that he could issue the commission by exercising the royal prerogative power of Dispensation by which he, as monarch, could dispense an individual from obedience to a specific statute.

Hales was, nonetheless, on receipt of the commission convicted at the Rochester Assizes of failing to comply with the provisions (taking Anglican Communion and swearing oaths of supremacy and allegiance in the correct form) of the Test Acts. The Crown then organised for Hales’ servant, Arthur Godden, to bring a test case with respect to this judgement to the King’s Bench (the same Court which heard the Proclamations Case).

The Chief Justice of the Bench, Sir Edward Herbert, wrote the judgement and reasoned that as the monarch was sovereign, ‘…the laws of England are the King’s laws; that therefore it is an inseparable prerogative in the Kings of England to dispense with penal laws in particular cases, and upon particular necessary reasons; that of these reasons and these necessities the King himself is the sole judge.’

Absence of judicial and legislative oversight

The absence of reference to the judicial and legislative oversight by the Courts and Parliament is notable.

So, two judgements on prerogative power of the 17th century concerning the Stuart Kings, the Judiciary and Parliament, and two very different conclusions; but only one surfaced in the Supreme Court ruling.  There remains a lingering sense in this contentious debate over the implementation of Brexit that both sides and all participants are choosing their historical examples and asserting a precedent; the contours of the nation’s history are much, much more variegated and nuanced to admit that.

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