On the 24th January 2017, the Supreme Court delivered a judgement on “the application of Miller and Dos Santos versus the Secretary of State for Exiting the European Union”. The 8-to-3 majority verdict finding against the Government is reverberating through the corridors of power. The full judgement is 97 pages long and will be bread and butter to constitutional lawyers as the world moves on from the antagonistic, dog-eat-dog nationalism of the preceding millennia towards liberal globalism which, despite setbacks, could prove to be a juggernaut. The litigants in the appeal acted as representatives of two of the constitutional principles that are historical pillars of civilised society. These pillars are the principles of ‘Parliamentary sovereignty’ and of ‘prerogative’ (formerly vested in the monarch, hence ‘Royal prerogative’). Over the centuries during which the UK’s uncodified constitution has evolved, Parliamentary sovereignty has grown in extent while prerogative powers have diminished but still retained supremacy specifically in respect of treaties. The conflict of interests played out in the gripping case is manifest as the battle of the giants ‘Leviathan versus Moloch’.

Leviathan – Sovereignty Within the Body Politic

In 1651, Thomas Hobbes published the great work ‘Leviathan’. He wrote “The Multitude so united in one Person, is called a common-wealth… This is the Generation of that great leviathan … to which we owe … our peace and defence.” His words concern the structure of society and legitimate government. It is regarded as one of the earliest and most influential examples of social contract theory. The subject matter is dense, intricate and comprehensive but nevertheless speaks of day-to-day life.

leviathan

Leviathan

‘Leviathan’ proposes the idea of a ‘Social Contract’ in which individuals consent to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights. Writing in an age of almost universal monarchy, Hobbes says that the sovereign exists because the majority has consented to his or her rule; the minority have agreed to abide by this arrangement and must then assent to the sovereign’s actions. Every subject is author of the acts of the sovereign: hence the sovereign cannot injure any of his subjects and cannot be accused of injustice. Hobbes named Part IV of his book ‘Kingdom of Darkness’. By this, Hobbes does not mean Hell but the darkness of ignorance as opposed to the light of true knowledge. “This considered, the kingdom of darkness… is nothing else but a confederacy of deceivers that, to obtain dominion over men in this present world, endeavour, by dark and erroneous doctrines, to extinguish in them the light…”. Hobbes’ work also deals with the sovereign’s prerogative right to declare and make war (and therefore treaties); but its greatest import is in respect of the political and social structures internal to a state.

Moloch – The Prerogative ‘Bonfire of the Profanities’

The 1648 Treaty of Westphalia is more germane to the prerogative power, at least in its outward-looking perspective. In this, the major continental European states (Holy Roman Empire, Spain, France, Sweden and Dutch Republic) agreed to respect territorial integrity. As European influence spread, ‘Westphalian’ principles, especially the concept of sovereign states, became central to international law. The Oxford English Dictionary entry explains that “In (the UK), the prerogative (power) includes … making (and breaking) treaties, … Though notionally unrestricted, the exercise of the prerogative is practically limited by the rights of parliament or of other bodies or persons and the constitutional obligation to take the advice of ministers.”

Leviathan is a mythical sea creature and its contemporary interpretation is in the guise of the whale, the highly civilised and intelligent, much loved and much endangered species; our mammalian cousins. In contrast, the Canaanite god Moloch was a god of fire in the form of an ox or bull; and into its brazen arms, at the command (the mandate) of its priesthood, human sacrifices in extraordinary numbers, were forced to walk or were cast into all-consuming fire. The name Moloch is derived from a derogatory use of the Canaanite word ‘mlk’ meaning ‘king’ or ‘monarch’. It is a person or thing to which extreme or terrible sacrifices are made; a terrible or remorselessly destructive person or force. ‘Moloch-ship’, an obsolete word, was used on only one known occasion as a mock title for a cruel or ruthless person; in 1661, the Royalist poet Abraham Cowley said Oliver Cromwell “… set himself up as an Idol, … and make the very streets of London, like the Valley of Hinnon, by burning the bowels of men as a sacrifice to his Moloch-ship.”

Refereeing the Battle of the Giants

How has the Supreme Court untangled the fraught issue of the relationship between Parliamentary democracy and prerogative [1]. The majority of eight out of eleven judges in the Supreme Court agreed with Miller and Dos Santos that …
“36. … when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. … when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular … some of the legal rights which the applicants enjoy under EU law will come to an end. This … means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.”
Furthermore that …
“50. “… it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law.”
Most important of all that …
“69. Although article 50 operates on the plane of international law, it is common ground that, because the EU Treaties apply as part of UK law, our domestic law will change as a result of the United Kingdom ceasing to be party to them, and rights enjoyed by UK residents granted through EU law will be affected. The Divisional Court concluded that, because ministers cannot claim prerogative powers to take an action which would result in a change in domestic law, it was not open to ministers to withdraw from the EU Treaties, and therefore to serve Notice, without authorisation in a statute.”
“77. … we consider that, by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”
“78. … There is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the 1972 Act. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom.”
The denouement …
“91. The improbability of the Secretary of State’s case is reinforced by the point that, if, as he contends, prerogative powers could be invoked in relation to the EU Treaties despite the provisions of the 1972 Act, it would have been open to ministers to take such a course on or at any time after 2 January 1973 without authorisation by Parliament. It would also follow that ministers could have taken that course even if there had been no referendum or indeed, at least in theory, even if any referendum had resulted in a vote to remain. Those are implausible propositions.”

‘Leviathan versus Moloch’ – The Silent Movie

What light does the allegory of ‘Leviathan versus Moloch’ throw on this judicial dialectic? Well it paints a sorry picture. Of a constitutional pillar under threat from politicians elected to preserve the sovereignty which their hollow slogan boasted to restore; ‘Take Back Control’. Of a ‘gang-of-four’ from Hobbes’ ‘Kingdom of Darkness’ whose researchers must have known that they had no constitutional right to invoke prerogative in the context of Article 50; who persevered in their attempt to subvert the constitutional arrangements of a thousand years and more by taking the case beyond the judgement of the High Court to the Supreme Court where they were resoundingly defeated. Of their desire and intent to sacrifice, like the priests of Moloch, the rights of the 16,141,241 on the advisory wishes of the ill-informed and misled 17,410,742. Of the attempt to use the important constitutional pillar of the ‘prerogative’ like an angry bull to batter down the constitutional pillar of Parliamentary sovereignty, the institution whose members are elected to preserve the protection, the rights and the liberty of the individual.

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Moloch

The finger has tightened eagerly on the trigger to fire the Article 50 bullet. The actors have been faced with a choice of conscience; to support the best interests of their constituents and right the wrongs of a morally deficient referendum; or to conform to party discipline and execute an impotent Parliamentary vote, undermining the very reason for the existence of that venerated institution.

The Rule of Law – ‘Enemies of the People’

As a postlude, we should remember that the third pillar of democracy, the principle of the ‘rule of law’, was under attack from the Europhobic press; but this battle is even now being fought on the streets, in living-rooms and kitchens across the UK, not in the courts.

[1] Numbered quotes are taken from the full judgment Supreme Court – Full Judgement