(This is a guest post by Preetika Mathur, and is a follow-up to her previous piece on this subject.)
The purpose of this post is to highlight some interesting similarities between the famous R (Miller) v Secretary of State for Exiting the European Union (“Miller”) decision of the UK Supreme Court and the recent NCT Delhi judgment of the Indian Supreme Court. A discussion of the key issues in NCT Delhi can be found here, here and here. An analysis of the final judgment can be found here.
The UK Supreme Court gave its judgment in the Miller case on 24th January 2017. The Indian Supreme Court gave its judgment in NCT Delhi on 4th July 2018. This post does not seek to argue that the Indian Supreme Court was necessarily influenced by Miller in its own reasoning – though no Constitutional Court decides cases in a vacuum. Rather, this post demonstrates how when faced with similar questions about the meaning of constitutional democracy, in two cases riddled with constitutional silences and textual impasses, the respective Courts resorted to similar tools from the limited judicial toolbox to reach their final decisions.
Fundamentally, the central question for the Supreme Courts in Miller and NCT Delhi was the weight to be given to the constitutional principle of representative democracy in determining the key institutional relationships within a modern State. Specifically, the Supreme Courts in both cases had to decide on the extent to which to prioritise the value of representative democracy over other conflicting values advanced by the Union executives in both cases. In both cases the executive at the Federal level sought to prioritise the value of a stronger more empowered Union executive using the interests of the Nation State as a whole to justify their claim. In both cases, the Union executive claimed that a stronger more empowered executive at the Central level was in the interests of the unity, integrity and political expediency of the Nation State as a whole.
The Miller case arose from the Brexit referendum. In the referendum held on June 23rd 2016, the UK voted to leave the EU by a majority of 51.9% for leave and 48.1% for remain. Article 50 of the Treaty of the European Union states that “any Member State” that “decides to withdraw from the EU in accordance with its own constitutional requirements” should serve a notice of that intention. In Miller, the Supreme Court was asked to decide on whether the UK’s constitutional requirements required the executive to obtain the prior authorisation of Parliament before it could serve its notice of intention to withdraw from the EU. The alternative contention advanced by the Government was that the executive could serve this notice of intention without prior Parliamentary permission.
The UK Government proposed to use its ‘Prerogative Powers’ to serve the notice of intention to withdraw from the EU without prior Parliamentary approval. Prerogative Powers find their origin in the personal powers of the monarch from the time when the monarch was the absolute and all powerful Head of State. The residue of these powers is now vested with the British Crown in Council – where the Crown (Queen) is merely nominal head with the residue of Prerogative Powers exercised by the Cabinet in reality. As Thomas Poole has written:
The UK Constitution recognises a bundle of prerogative powers… – or ‘Ministerial executive powers’, as a Commons Select Committee prefers to call them. These are the inherent common-law powers of the executive. ‘Inherent’ and ‘common-law’ because they have not been conferred by statute and their existence and conditions of application are matters to be recognized and determined by the courts (Philip Allott, ‘The Courts and the Executive: Four House of Lords Decisions’ (1977) 36 Cambridge Law Journal 255, 265-6). Although the bundle has dwindled significantly, it still covers a range of matters… The most important relate to national defence and foreign relations. What distinguishes them politically perhaps is the need for ‘unanimity, strength and despatch’ and a connection to the notion of salus populi (e.g. Chandler v Director of Public Prosecutions  AC 763). What distinguishes them legally is that they do not require Parliamentary authorization.
The argument at the core of the Respondents case in Miller was that since the UK was a representative Parliamentary democracy, operationalising representative democracy took precedence over the governmental expediency gained through use of Prerogative Powers. Similarly in NCT Delhi the core of the Respondents case was that the Constitution through Article 239 AA had expressly conferred a Legislative Assembly on Delhi modelled on the Westminster style Parliamentary system with a Westminster style Cabinet. As a result, operationalising representative democracy had to take precedence over the priorities of the Union executive.
Similar Reasoning and Outcomes
Both cases are also similar because both the Supreme Courts used structuralist reasoning to navigate through constitutional silences and textual impasses. Vasudev Devdasan has already explained the difference between textual and structural approaches to constitutional interpretation in detail in his series of posts on NCT Delhi. In summary, textualism relies exclusively on the words of a particular provision in isolation from the broader institutional relationships created by the constitutional scheme. Structuralism does not look at the text of the provision in isolation. Instead, structuralism looks at the existence and position of a constitutional provision in its relationship to the existence and position of other constitutional provisions. This is in order to identify the institutional relationships envisaged by the Constitution in order to find answers to specific questions about institutional relationships.
Both Miller and NCT Delhi cases were riddled with silences – situations where the constitutional text does not speak. In his seminal piece ‘A Syntax of the Unsaid’ Professor Lawrence Tribe writes:
Indeed, to decree that we must ignore legal silences altogether is no more plausible than to command that we ignore the uncovered parts of a canvas or the pauses in a sonata…We must therefore reformulate, and reduce to more plausible dimensions, the resistance to silence as a source of law if the failure of that resistance is to be replaced with even a modest success. Without a more explicit grammar of how silences may and may not operate in the interpretation of law – a syntax of the unsaid – we may say that law cannot be made by silence, but the echo will return: “Oh yes it can, just watch!
In both the Miller and NCT Delhi cases, the opposing parties construed the textual silences in a manner that allowed them to arrive at diametrically opposed conclusions.
In NCT Delhi the constitutional text of Article 239 AA was silent on the Delhi’s precise place in the hierarchy between Union Territory and State. The Constitutional text of Article 239 (AA) (4) was silent on whether the Lieutenant Governor was bound by the ‘aid and advice’ of the constitutionally mandated Council of Ministers of the Delhi Government. Article 74 on the other hand explicitly says that the President of India “shall” act in accordance with the Aid and Advice of his Council of Ministers. Article 246 was silent on whether Delhi was a Union Territory for its purposes. The proviso to Article 73 was silent on whether it was applicable to Delhi.
In NCT Delhi, the Central Government tried to fill these silences with the assertion that Delhi was merely a Union Territory simpliciter. As a result, even though Delhi had the same legislative competence as a State for all purposes apart from relating to Entries 1, 2 and 18 of the State List it would not have the same executive competence as a State. This meant that Parliament had plenary powers with respect to the Union Territory of Delhi under Article 246 and the Union’s coextensive executive powers remained unaffected by the proviso to Article 73. As a result the Lieutenant Governor was not bound by the ‘aid and advice’ of his Council of Ministers.
The Delhi Government tried to fill the silences in the constitutional text with the assertion that Delhi was a unique constitutional hybrid. This led the Delhi Government to arrive at the exact opposite conclusions to the Central Government with respect to the same constitutional provisions. The Delhi Government argued that since Delhi had the same legislative competence as a State for all purposes apart from Entries 1, 2 and 18 the Constitution intended to treat Delhi akin to a State for the purposes of the executive powers of the Delhi Government. As a result, Delhi had the same executive competence as a State in all areas apart from Entries 1, 2 and 18. Further, since Delhi was not a Union Territory simpliciter but a unique constitutional hybrid the proviso to Article 73 had bite with respect to Delhi and the Union’s executive powers were displaced by the proviso to Article 73.
The Miller case too, was riddled with constitutional silences. In Miller, like in NCT Delhi both parties used these silences to arrive at diametrically opposed interpretations of the same legal provisions. The Government wished to rely on an unwritten Prerogative Power in an unwritten constitution. The key pieces of legislation governing the issue were silent on whether the Prerogative claimed by the government really did exist and whether it could be used to remove the UK from the EU. The key pieces of legislation were The European Union Referendum Act 2015 which made legal provision for the Brexit Referendum and The European Communities Act 1972 which made the UK a member of the EU and brought EU law into UK domestic law. These silences in The EU Referendum Act 2015 and The European Communities Act 1972 led the Government to argue that they had a pre-existing Prerogative Power to make and unmake treaties at the international level. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on the issue of Prerogative Powers and neither Act explicitly or implicitly removed the pre existing Prerogative Power this pre existing power could be used by the Government to serve its notice of intention to withdraw. The Respondents arrived at the exact opposite conclusion from the silence. They argued that the Government did not have the pre existing Prerogative Power that they claimed to have. Since both The EU Referendum Act 2015 and The European Communities Act 1972 were silent on Prerogative Powers and neither Act expressly conferred such a power, the Government had no such Prerogative Power that it could rely upon. Specifically, the Governing was seeking to use Prerogative Power to alter and destroy domestic law rights – the Respondents argued that the Government had no Prerogative Power at the international level to alter or destroy domestic law rights.
The diametrically opposed constructions of the constitutional silences is also well demonstrated by the conflicting usage of the same metaphor by the Government and the Respondents throughout the case. Both sides relied on the metaphor of the “conduit pipe” to different ends. The Government argued that The European Communities Act 1972 (which brought EU law into UK domestic law) was merely a “conduit pipe” for whatever rights and obligations the Government decided to subscribe to at the international level. They relied on Section 2 of The European Communities Act 1972 which provides that EU law rights, remedies etc “from time to time provided for by or under the Treaties” were “to be given effect or used in the United Kingdom”. The Government argued that the words “from time to time” meant that The European Communities Act envisaged that the Government could through its treaty making/unmaking Prerogative at the international level increase or decrease the flow of rights and obligations down this pipe. The Government argued that The European Communities Act 1972 was ambulatory in that it envisaged varying levels and intensities of rights flowing down this pipe over time.
The Respondents in Miller turned the “conduit pipe” argument on its head. They argued that once rights had flowed down the pipe to become a part of domestic law, the Government did not have the Prerogative Power at the international level to take away or alter these domestic law rights. Further, the Respondents argued that The European Communities Act 1972 created a new legal order by introducing a new source of law into the UK and the Government was not simply seeking to decrease the flow of rights and obligations down the pipe but to destroy the pipe altogether. They argued that Section 2 of The European Communities Act 1972 did not envisage the destruction of the “conduit pipe” altogether. They argued that there is a vital difference between changes in domestic law resulting from variations in the content of EU law that arise from new EU legislation which “flow down the pipe” and changes in domestic law resulting from withdrawal from the EU altogether.
In NCT Delhi all the judgments of the Supreme Court (both majority and separate concurring) resorted to structural reasoning to cut through the silences and textual impasse in that case. All judgments relied heavily on and prioritised the structural principle of representative Parliamentary democracy concluding that the Lieutenant Governor was bound by the ‘aid and advice’ of his Council of Ministers. Specifically, this was because Article 239 AA was an exercise of constituent power; that had introduced Westminster style representative democracy into Delhi with a Westminster style cabinet system of government. An aspect of a Westminster style cabinet was the principle of collective responsibility. As a result, ultimate executive authority must vest with the Council of Ministers in Delhi and the Lieutenant Governor must be bound by their ‘aid and advice’ where Delhi has legislative competence (this was subject to the limitation that Delhi’s status as the national capital would require situations where this principle could be departed from, as acknowledged by Justice Chandrachud in his concurring opinion).
The Miller case was heard by a 11 judge bench of the UK Supreme Court. The Supreme Court by a majority of 8-3 found in favour of the Respondents. The majority gave a single judgment, Lord Reed, Lord Carnwarth and Lord Hughes dissented and wrote separate judgments each.
In Miller too the majority of the Supreme Court resorted to structural reasoning to identify the best approach to fill the silence and resolve the textual impasse. It viewed the dispute in the Miller case from several distinct structural perspectives to determine the most appropriate outcome in the case.
The first of these perspectives involved examination of the institutional relationships between the judiciary, the Crown and Parliament over the course of several centuries. The court noted that over this historical period the judiciary had progressively curtailed the Prerogative Powers of the Crown to further the interests of representative democracy and transfer power from the Crown to Parliament. The Courts had progressively curtailed the circumstances in which Prerogative Powers could be resorted to as well as the manner in which they could be used and the extent of their impact on domestic laws when used. The majority judgment of the Supreme Court described that in many ways the history of the common law had been an unbroken history of limiting the Prerogative. The Supreme Court cited a long unbroken line of authorities through which these developments had taken place. The first of these cases was the 17th Century Case of Proclamations. The Court then cited a number of important 20th Century decisions. This included the following extract from Lord Parker’s judgment from the 1916 decision of The Zamora:
The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity.
The Court also cited the 1920 judgment of Attorney General v De Keyser’s Royal Hotel Ltd and the 1995 decision in R v Secretary of State for the Home Department, Ex p Fire Brigades Union. It held that these two cases had crystallised the principle that that the Crown cannot alter the common law or statute by an exercise of the Prerogative Power and nor can the Crown frustrate the purpose of a Statute – even if that Statute is not yet in existence. It also cited the 1965 judgment of Burmah Oil Co (Burma Trading) Ltd v Lord Advocate in which Lord Reid explained that the Royal Prerogative is a source of power which is “only available for a case not covered by statute. This historical analysis of institutional relationships within the British Constitution helped the Court to identify the role that it ought to take in the Miller case. After conducting its historical analysis of institutional relationships as developed through the case law, the Court concluded that: “It would be inconsistent with long standing and fundamental principle for such a far reaching change to the UK Constitutional arrangements to be brought about by ministerial decision or ministerial action alone”.
This historical analysis and consideration of the development of the institutional relationship between judiciary, executive and legislature led to the second structural perspective that was used by the majority of the Supreme Court. The majority considered the proper relationship between the people of the United Kingdom and the executive. The majority concluded that this meant that the executive could not deprive people of domestic rights through Prerogative Power at international level. Such deprivations could only done by Parliament as this better protected the democratic interest of citizens.
The third structural perspective used by the majority of the Supreme Court was to compare the institutional arrangements in the British Constitution before The European Communities Act 1972, after its enactment and after its destruction to determine what had changed. The Court did not resort to more textualism to resolve the conflicting interpretations of the constitutional silences in The European Communities Act 1972 but instead opted to examine the bigger structural picture. It agreed with the Respondents that The European Communities Act had “effected a fundamental change in the constitutional arrangements of the United Kingdom” and introduced a new source of law entirely. It held that as a result the silences in The European Communities Act 1972 could not be construed to mean that Parliament had contemplated or intended that Ministers could cause the United Kingdom to withdraw from the European Treaties without prior Parliamentary approval.