I.
In his memoir, The Family Story, Lord Denning candidly confessed that Jurisprudence was not his favourite subject at Oxford:
Jurisprudence was too abstract a subject for my liking. All about ideologies, legal norms and basic norms, ‘ought’ and ‘is’, realism and behaviourism, and goodness knows what else.Footnote 1
In his elegant and classic essay on Denning written in the early 1980s, Heuston nevertheless poured a little cold water on the accuracy of these recollections:
Although this may be true of Oxford jurisprudence today, it can hardly be true of 1921, when the terminology of Kelsen was unknown west of the Landstrasse.Footnote 2
Whatever about Oxford of the early 1920s, Kelsen was, however, a staple of the Jurisprudence course at University College, Dublin in my undergraduate years in the late 1970s. Somehow his Pure Theory of Law ‘spoke’ to me in a way that few other legal theorists – with the exception perhaps of HLA Hart – managed to do. And so, to that extent, I sympathise with Denning because I confess that I struggle with later theorists such as Raz, Rawls and Finnis. (I gather, incidentally, that Oxford has moved on; that Kelsen is now passé and no longer features in Jurisprudence classes.)
Yet until I made this personal confession to you, I had, I hope, successfully managed to camouflage my struggles with modern jurisprudence. I can, of course, remark at academic conferences that Jeremy Waldron is in favour of weak form judicial review and that Adrian Vermeule supports common good constitutionalism without being very sure what any of this means, save that it sounds sufficiently knowledgeable and I know that this is what I am supposed to say. Yet, to be truthful, so far as modern Jurisprudence is concerned, I am still stuck in the Landstrasse unable to find my way home. I would nevertheless still maintain that a Kelsenian analysis can help us to understand what is really happening in the great modern UK constitutional law cases.
II.
Whatever about the intrinsic merits of their arguments, there is no doubt but that the three great legal positivists – Holmes, Kelsen and Hart – were each elegant legal writers who each spoke with an analytical directness which in itself is very useful, not least in the sphere of constitutional law. And while there are clear differences between them, for the purposes of my argument their respective analyses rather meld into one. Irrespective of whether it is Holmes’ ‘bad man’ predictive law theoryFootnote 3 or Hart’s rule of recognitionFootnote 4 or pure Kelsenian analysis, the question I wish to pose is what the ultimate Grundnorm or Grundnormen is or are in UK constitutional law and how this is illustrated by a series of hugely important recent decisions of the UK Supreme Court. Let us start with a consideration of what, on any view, is one of the most significant judgments in UK constitutional law in the last hundred years or so.
Before doing so, let us acknowledge that in the perfect Kelsenian world there would be only one Grundnorm – not, Grundnormen, plural. This after all is one of the fundamental axioms on which the General Theory (Allgemeine Staatslehre) is constructed, an axiom which Kelsen thought was so obvious that he did not really need to defend it. For this he has been criticised by Raz among others.Footnote 5 I am not sure that it is really necessary to get into this conceptual debate. I have used the plural and, if necessary, one could probably meld these Grundnormen into one. In the General Theory, Kelsen admitted that customary law (ie including – presumably – for this purpose judge-made, precedent-based law typical of a common law system) could be a Grundnorm Footnote 6 and this is perhaps enough for my present purposes.
Has Gina Miller (No 2) changed a Grundnorm of English constitutional law?
For those brought up in the belief that the sovereignty of Parliament, Stockdale v Hansard and Article 9 of the Bill of Rights all formed core elements of the English/British constitutional tradition, the decision of the UK Supreme Court in Gina Miller (No 2) Footnote 7 came possibly as a something of a surprise. This was the great case where the purported prorogation of Parliament was held to be invalid on the basis that it frustrated the right of Parliament to hold the Government to account. The Government had advised Her Majesty Queen Elizabeth II to prorogue Parliament for just over one month from mid-September 2019 until 14 October 2019. The Supreme Court ruled that this unusually long prorogation was unlawful because it was clear in the circumstances that the main object of the prorogation was to frustrate the right of Parliament to hold the Government to account in the context of the proposed withdrawal of the United Kingdom from the European Union.Footnote 8
Perhaps we were not looking closely enough, and we had forgotten what potentially far-reaching decisions such as GCHQ Footnote 9 in 1984 or the Fire Brigades Union caseFootnote 10 in 1995 portended for the development of judicial review of prerogative powers. Yet given the historically embedded unwillingness of the English judiciary even to entertain challenges to decisions concerning parliamentary affairs, the decision to review the exercise of prerogative powers relating to prorogation of parliament seems striking, not least given that it relates to a feature of the relationship between the Government and the Crown.
So likewise is the actual basis of the decision: the by now famous ‘of course it did’ passage from the joint judgment of Baroness Hale PSC and Lord Reed DPSC in Gina Miller (No 2). In their joint judgment for the Court, they ruled that the Prime Minister’s decision to advise the Sovereign to prorogue Parliament from September 2019 to October 2019 was unlawful, in essence because it frustrated the right of Parliament to hold the Government to account, not only in relation to Brexit, but also more generally.Footnote 11 As Baroness Hale PSC and Lord Reed DPSC explained:
Let us remind ourselves of the foundations of our Constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons – and indeed to the House of Lords – for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.
The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.Footnote 12
At the same time, it is impossible to deny that Gina Miller (No 2) is a remarkable decision which has the potential entirely to re-set many traditional assumptions. Of course, one swallow does not make a summer: it may be that Gina Miller (No 2) will prove to be like a judicial equivalent of Halley’s Comet: a marvellous spectacle which thrilled and amazed observers at the time while it blazed through the sky, the likes of which will not be seen again for another century. At this point it is too early to say, but if Gina Miller (No 2) does take hold then I contend that it will effectively have changed one Grundnorm of British constitutional law and tradition. Perhaps then – rather like Judge Brack in Ibsen’s Hedda Gabler – we may therefore ask what all of this might tell us about the law of the future.
Starting with the past, I suspect that if we could consult the shades of the great jurists of English constitutional law from Blackstone to Wheare and Jennings and beyond in order to ask them why they thought (or assumed) that advice to the Crown from the Prime Minister of the day regarding the prorogation of Parliament could not be judicially challenged, the answers given would probably be explained in terms relating to the separation of powers, the sovereignty of Parliament and an embedded constitutional tradition amounting almost to a rule. A deeper reason might have been that the issue presented a non-justiciable controversy in that the judges of the day considered there were no judicially manageable standards whereby the validity of any such advice could have been assessed. This would certainly have been true in the past: who now remembers the decisions to prorogue Parliament in October 1948 in quick succession in a series of moves designed to facilitate the passage of the Parliament Act 1949?Footnote 13 The members of the Judicial Committee of the House of Lords of the late 1940s would doubtless have been astonished if they had been told at the time to hear that the courts might have had jurisdiction to prevent a series of multiple prorogations, even if those prorogations were themselves designed to circumvent the strictures of the Parliament Act 1911 and to facilitate new legislation further designed to reduce the power of the House of Lords itself to delay legislation from two years to one.
If, however, Gina Miller (No 2) proves to be more than one swallow it will, as I have just said, potentially introduce a new Grundnorm into English constitutional law, namely, that executive decisions which challenge or threaten in a fundamental way the accountability of the Government to Parliament can be subjected to judicial review against this (new) benchmark value of democratic accountability. Some leading UK constitutional law scholars were critical of this reasoning, with Loughlin contending that the UK Supreme Court had thereby converted ‘political practices into constitutional principles, investing them with normative (and legal?) authority so as to assert the power to determine their meaning. The court is making a pitch to become the primary guardian of the British constitution.’Footnote 14
In passing it might be said that this aspect of the Miller (No 2) debate has certain parallels with contemporary debates in Irish constitutional law. While no one doubts the fact that the Irish Supreme Court has been accorded the role as primary guardian of the Constitution of 1937 by reasons of the provisions of that self-same document, there is a debate as to the extent to which the general words of Article 5Footnote 15 of that Constitution which declares the state to be a democracy is, in fact, an entirely free-standing, normative and legal principle which the judiciary can enforce, if necessary by invalidating legislation which does not match up to this standard. The alternative view of Article 5 is to suggest that the Irish courts can only do so by reference to some other specific and prescriptive constitutional provision such as Article 16 (elections) or Article 25 (publication of laws).Footnote 16 This is, of course, not the place to discuss this ongoing debate. It is sufficient for our purposes to say that this rationale in Gina Miller (No 2) looks very like the type of broad interpretation of Article 5 of the Irish Constitution for which some members – but certainly not all – of the Irish Supreme Court have recently advocated.Footnote 17
One may, however, have some doubts about whether Gina Miller (No 2) will have this long-term impact because for this principle to be applied evenly a court might have to override other traditional Grundnormen of the English Constitution, not least the core doctrine of parliamentary sovereignty. (It is, of course, different in Ireland because if you subscribe to the ‘broad’ interpretation of Article 5, then the logical corollary of this is that you must also accept that the Irish Supreme Court could and would declare legislation which did not match up to these democratic standards to be unconstitutional and invalid.) If internal congruence – or, if you like, a sort of systemic legal coherence – vis-à-vis the separation of powers is a desirable hallmark of constitutional law, then is it not curious that the courts should enjoy such an elevated power of review benchmarked against an abstract principle in respect of executive decisions only whereas no such power of review exists in relation to legislative decisions? What, for example, is to be done if Parliament legislated for prorogation in a manner which was intended to avoid parliamentary scrutiny? Putting this another way, the democracy-based rationale of Gina Miller (No 2) might be said to be more defensible if the UK system had a higher law constitution or charter containing a guarantee as to democracy à la Article 5 of the Irish Constitution, coupled with an express power of judicial review of legislation.
III.
Privacy International, the Scottish Independence Bill and Allister and Preeble’s Application
Viewed against this background, three more recent decisions of the UK Supreme Court may be thought to re-assert the more traditional understanding of the Grundnormen in UK constitutional law, namely, the sovereignty of the Crown in Parliament and rejecting the idea of a higher law source. This, after all, is what the Divisional Court had said in Gina Miller (No 1):Footnote 18
… the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign, and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme … Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen.Footnote 19
How, then, has this principle fared in the latest trilogy of cases? The first of these cases, R (Privacy International) v Investigatory Powers Tribunal,Footnote 20 is a fascinating decision because it raised the question of whether Parliament could ever legislate to oust the supervisory jurisdiction of the High Court. The Tribunal is designed to regulate the actions of the UK security services and section 67(8) of the Regulation of Investigatory Powers Act 2000 provides:
Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
On the face of it this section might appear broad enough to exclude judicial review. But the majority judgment of Lord Carnwarth applied standard constitutional principles to conclude that Parliament did not in fact intend to go so far as to exclude judicial review. The reference to a ‘determination’ was only to a legal valid determination and, relying on the famous authority of Anisminic Ltd v Foreign Compensation Commission,Footnote 21 he held that a decision vitiated by error of law was not a valid ‘determination’ for this purpose. Section 1 of the Constitutional Reform Act 2005 had expressly preserved ‘the existing constitutional principle of the rule of law’. This in turn amounted to a recognition that Parliament intended with this constitutional statute that the judiciary should ensure that those key aspects of the rule of law, such as the right to challenge the legality of administrative decisions, were properly upheld. Lord Carnwarth thought that this result was brought about not by ‘elusive concepts such as jurisdiction (wide or narrow), ultra vires or nullity’ – as had been the rationale for Anisminic – but rather as a:
natural application of the constitutional principle of the rule of law (as affirmed by s. 1 of the [Constitutional Reform] Act 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as guardians and interpreters of the law, are thus respected.Footnote 22
Lord Carnwarth concluded by stating that although it was not necessary to decide the point he could see:
a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.Footnote 23
Although Privacy International was delivered in May 2019 – a few months before Gina Miller (No 2) – it is not hard to see more strands here of the judicial thinking to which Loughlin objected, namely, the UK Supreme Court as a guardian of the British Constitution and effective access to the courts being protected as a de facto form of inviolate higher law. This is also the view of Ong:
The practical effect of the majority’s judgment may be the same as that of the majority decision in Anisminic. But the majority in Anisminic justified its conclusion by reference to legislative intent. That intent may have been a fiction. But that fiction prevented the conclusion that the House of Lords had refused to obey a statute. Lord Lloyd-JonesFootnote 24 took a similar approach. By contrast, it appears that Lord Carnwarth, Lady Hale and Lord Kerr would, in effect, have struck down a statute for unconstitutionality. Whether or not this is desirable, this is truly revolutionary.Footnote 25
The dissenting judgment of Lord Sumption is of particular interest because he squarely confronted the question of whether there were limits to parliamentary sovereignty. He first rejected the idea that there were some higher law principles which precluded this:
… In its more radical form, the argument limits the sovereignty of Parliament in the name of a higher law, ascertained and applied by the court. What is said is that the rule of law is the foundation of the constitution and the source of the legitimacy of all legislation and that judicial review is its procedural embodiment. For this reason, Parliament is not competent to legislate contrary to the rule of law. This was the view tentatively expressed in an obiter dictum of Lord Steyn in R (Jackson) v Attorney General Footnote 26 and less tentatively by Lord Hope in his observations, also obiter, in the same case…Footnote 27 It was robustly rejected by Lord Bingham in the same case (para 9) and more fully in Chapter 12 of his book The Rule of Law (2010) … In its less radical form, the argument is that judicial review is necessary to sustain Parliamentary sovereignty. This is because Parliament can express its will only by written texts, to which effect can be given only if there is a supreme interpretative and enforcing authority. That authority by its nature resides in courts of law. This is the view suggested by Laws LJ in the Court of Appeal in R (Cart) v Upper Tribunal Footnote 28. Like the principle that Parliament cannot bind itself, Parliament’s lack of competence to oust judicial review is on this view conceptual rather than normative. The point was well put by Farwell LJ in R v Shoreditch Assessment Committee, Ex p Morgan Footnote 29 when he observed, at p. 880, that ‘it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure – such a tribunal would be autocratic, not limited’.Footnote 30
Lord Sumption then continued:
The rule of law applies as much to the courts as it does to anyone else, and under our constitution, that requires that effect must be given to Parliamentary legislation. In the absence of a written constitution capable of serving as a higher source of law, the status of Parliamentary legislation as the ultimate source of law is the foundation of democracy in the United Kingdom. The alternative would be to treat the courts as being entitled on their own initiative to create a higher source of law than statute, namely their own decisions.Footnote 31
Noting that this proposition had been rejected by both the Divisional Court and the Supreme Court in Gina Miller (No 1), Lord Sumption went on to say that the applicant would ‘have had a mountain to climb’ if it were contended that the legislation was in some way invalid by reason of the fact that the courts’ capacity to review a decision of the Tribunal had been in some way been ousted. The alternative – and ‘less radical version’ – was that there was a ‘conceptual inconsistency’ between the existence of an ouster clause on the one hand and the existence of limits on the jurisdiction of the Tribunal on the other. Lord Sumption ultimately concluded that the statutory language did no more than:
… exclude review by the High Court of the merits of decisions made by a tribunal performing, within its prescribed area of competence, the same functions as the High Court. It is in substance an exclusion of appeals on the merits and other proceedings tantamount to an appeal on the merits. The bracketed words referring to jurisdiction have been added because the draftsman intended that the decisions of the tribunal on the merits should be treated as within its jurisdiction notwithstanding that it was erroneous. The intention was that the exclusion of appeals on the merits and equivalent proceedings should apply notwithstanding that Anisminic had categorised some errors going to the merits as excesses of jurisdiction.Footnote 32
What then does Privacy Intentional tell us about the UK Grundnormen? At a superficial level one could say that it re-affirms the traditional, orthodox view because it rejects the idea that there is no ‘higher law’ principle against which the legality of legislative actions could be measured. You might also say that this is inherent in an unwritten constitution but, for my part, I suggest that it is a little more complex than that. The long course of English/British political and legal history over the last 350 years or so aside, there is no particular reason as such why a power of judicial review in respect of legislation could not have been asserted by the English/British courts in much the same way as the power exists in relation to executive decisions. While the context is admittedly quite different, Marbury v Madison Footnote 33 was, after all, not inevitable: it is often overlooked that the US Constitution does not expressly provide for judicial review of legislation.Footnote 34 This power was judicially asserted by the US Supreme Court and if English/United Kingdom constitutional history had taken a different turn, it is possible that a similar power could have been judicially acknowledged.Footnote 35
Indeed, as I read Hart, he more or less implicitly acknowledges this: his point rather is that parliamentary sovereignty is the supreme rule of recognition within the UK constitutional system, but not that it inevitably had to be such.Footnote 36 Here, in a sense, Holmes, Kelsen and Hart all merge into each other. The reason why UK courts give effect to the sovereignty of parliament is because of the existence of that long-embedded tradition, history and precedent they essentially choose to do so: Holmes’ ‘bad man’ can thus be told that the UK courts will indeed apply Hart’s rule of recognition to give effect to parliamentary sovereignty and this is the ultimate Grundnorm of the UK system which Kelsen would recognise.
There is, however, I suggest a qualification to this. Privacy International shows that in practice the UK courts will not permit the exclusion of judicial review so that the supervisory jurisdiction of the High Court remains inviolable, irrespective – again in practice – of what Parliament actually said or, perhaps, it might be more correct to say, even subjectively intended. Parliament can certainly attempt to do so, but Holmes’ ‘bad man’ can nonetheless safely be told that no matter what happens and irrespective of any statutory language, his right to apply for judicial review will nonetheless be preserved. Hart might say that what is really happening here is that the UK courts will ultimately refine or qualify their ordinary rule of recognition by refusing to give effect to an attempt to oust this supervisory jurisdiction, if necessary, by not giving effect to the ordinary meaning of the purportedly ousting legislative words. Lord Carnwarth did, after all, say that the rule of law was a principle ‘which is as fundamental to our constitution as the principle of Parliamentary sovereignty’Footnote 37 when he concluded that the ‘rule of law’ can mean that binding effect cannot be given ‘to some statutes’, even if they can be validly enacted.Footnote 38
Kelsen would probably acknowledge this as a qualification of the ultimate UK Grundnorm because in his strict theory there has to be an ultimate law authorising this state of affairs. The ‘law’ in essence here is the customary common law of the British Constitution as applied by a conscious judicial decision not to permit the ouster of judicial review. Using the language of modern constitutional law, you could instead say: here is the UK’s ultimate constitutional identity: while recognising the supremacy of the Crown in Parliament, the common law constitutional principles designed to safeguard the rule of law itself are nonetheless preserved and are, in practice, inviolable.
If one turns to the next case, In re Scottish Independence Referendum Bill,Footnote 39 the question was whether it was lawful for the Scottish Parliament unilaterally to hold a Catalan-style referendum on whether Scotland should be independent. The UK Supreme Court held that it was not.
Section 29 of the Scotland Act 1998 imposed certain restrictions on the legislative sovereignty of the Scottish Parliament. One of these restrictions was that the legislation could not deal with matters which refer to reserved matters. One of these reserved matters related to matters touching on the United Kingdom and it was clear that the holding of such a referendum would impact on the United Kingdom as a whole. It is plain from the joint judgment of all members of the five-judge panel – Lords Reed, Lloyd-Jones, Sales, Stephens and Lady Rose – that the holding of such a referendum was a matter which obviously affected the United Kingdom because, quite clearly, if Scotland became independent this would terminate the existing Union. While the actual outcome of the reference can scarcely have been a surprise, Hans Kelsen would surely not have wasted much time in looking for the Grundnorm identified in that case. It is quite obviously that of the Crown in Parliament. While Parliament provided for a large measure of devolution to the Scottish Parliament, the legislative competence of that latter Parliament is not omnipotent. Quite the contrary: it is plain that it in key respects it remains subordinate to Westminster. Inasmuch as there was any doubt about it, it is clear from the Scottish Independence Reference that the UK courts will acknowledge and give effect to that Grundnorm.
This is all surely put beyond argument by the UK Supreme Court’s decision in February 2023 in Re Allister and Peeples’ Application. Footnote 40 Here the applicants had challenged the validity of the Northern Ireland Protocol on the ground that it was inconsistent with Article VI of the Act of Union 1800. As Article VI had guaranteed free trade between Ireland and Great Britain in the (pre-1922) United Kingdom of Great Britian and Ireland, the applicants maintained that the new Protocol had violated Article VI of the Act of Union by creating (they said) a new border on the Irish Sea – as distinct from a border on the island of Ireland.
In fairness, it would in fact not be difficult to point out some inconsistency between the Protocol and the earlier Act of Union. The Protocol after all requires, for example, the payment of tariffs on goods coming from Great Britain to Northern Ireland which are ultimately destined for the EU. This point was accepted by Colton J at first instance in the Northern Irish High CourtFootnote 41 and as the case progressed through the Northern Irish Court of Appeal up to the UK Supreme Court this issue was never thereafter seriously in doubt. This, however, was not in any sense dispositive for any of the judges who dealt with this. They all pointed out that section 7A of the EU (Withdrawal) Act 2018Footnote 42 expressly provided for the disapplication of all domestic legislation which was inconsistent with the terms of the Withdrawal Agreement (including the Protocol).
Lord Stephens was, however, emphatic on the point:
The debate as to whether Article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic. Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in an earlier statute may be effected by express words in a later statute. The most fundamental rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is sovereign and that legislation enacted by Parliament is supreme. A clear answer has been expressly provided by Parliament in relation to any conflict between the Protocol and the rights in the trade limb of Article VI. The answer to any conflict between the Protocol and any other enactment whenever passed or made is that those other enactments are to be read and have effect subject to the rights and obligations which are to be recognised and available in domestic law by virtue of s. 7A(2).
The modification of Article VI of the Acts of Union does not amount to a repeal of that article. The Acts of Union and Article VI remain on the statute book but are modified to the extent and for the period during which the Protocol applies.Footnote 43
I would contend that these two decisions prove, as it were, my point in reverse. They show that in all other circumstances the UK courts will treat parliamentary sovereignty as the ultimate Grundnorm. Footnote 44 There may, of course, be cases where they will insist that fundamental constitutional statutes – such as the Act of Union or the Scotland Act – cannot be the subject of merely implied repeal and will look for this purpose to Parliament for express language. This rigorous form of statutory interpretation is, however, designed to uphold fundamental constitutional norms such as preserving access to the courts and is generally regarded as exceptional.Footnote 45 Yet the Scottish Referendum case and Allister and Peeples show – in contrast to the position in Privacy International – that where clear language is used even in relation to these constitutional statutes, the courts will give effect to such language, even if these means that the earlier constitutional statutes are to that extent amended or modified or even repealed. As Deb put it with respect to Allister and Peeples:
Whatever the Parliaments of Great Britain and Ireland enacted in 1800, the UK Parliament in 2020 overlaid its will onto the entire statute book. No amount of theoretical possibility, or historical reading, was enough to persuade the Supreme Court to second-guess this statutory fait accompli. Footnote 46
All of this tends to show that parliamentary sovereignty is the ultimate UK Grundnorm which is otherwise inviolate save where the judicial review powers of the High Court would otherwise be overridden by legislation. Here the lesson of Privacy International is that there is de facto a form of unwritten, judge-made higher law, the consequence of which is that – again, de facto – the courts will not give effect to such a law. Privacy International also shows that in the UK, it is possible that Grundnormen can be created or recognised by judicial decision. Indeed, Privacy International represents an example of what Kelsen described as a form of customary law of a kind which was capable of creating a Grundnorm. This phenomenon is, however, confined to wholly exceptional judicial decisions addressing difficult and novel issues of constitutional law, and this is why in time it may be recognised that Gina Miller (No 2) may have created a new Grundnorm.
IV.
The situation in Ireland is quite different but in its own way equally interesting. I do not propose to dwell on the situation between 1921–1922 or in the then Irish Free State between 1922–1937, but the Irish constitutional history of this period provides empirical proof of orthodox Kelsenian theory which holds, in effect, that a society with no clear Grundnorm or which does not possess a court system with authority and status to determine such a Grundnorm is liable to internal collapse. In 1921–1922 the issue was whether the 2nd Dáil had the authority under its own parallel legal system to ratify the Anglo-Irish Treaty which had been signed in December 1921.Footnote 47 Elements of the losing side to that vote thereafter repudiated the authority of the Dáil and resorted to war. While the presence of an effective judicial body which could authoritatively have ruled on that fundamental disputeFootnote 48 might not have prevented civil warFootnote 49 – one thinks here of the disastrous failings of the US Supreme Court in the Dred Scott Footnote 50 case in 1857 – the absence of such a body at that time certainly did not help.
The intricacies of the Irish Free State Constitution between 1922 and 1937 are too complex to admit of even the shortest summary here. It is perhaps sufficient to state that that Constitution collapsed because there was in effect no clear hierarchy of norms as between ordinary legislation, the Constitution itself and the Anglo-Irish Treaty of 1921 (which had been originally scheduled to that document by section 2 of the Irish Free State (Saorstát Éireann) Constitution Act 1922). While the Oireachtas had no power to amend the TreatyFootnote 51 or to amend the Constitution in a way which conflicted with the Treaty, it was originally envisaged that all other amendments to the ConstitutionFootnote 52 would be effected by referendum. Article 50 of the Irish Free State Constitution had, however, allowed the Constitution to be amended by ordinary legislation for an initial eight-year period and this period was extended for a further eight years in 1929 by ordinary legislation.Footnote 53 This meant that during the entire period of its lifetime between 1922 and 1937 the Constitution of the Irish Free State was totally vulnerable to a wide range of legislative changes, often of a far-reaching character.
One difficulty here was that the drafters had never envisaged that the initial eight-year period could itself be extended by ordinary legislation. Yet in December 1934 in The State (Ryan) v Lennon Footnote 54 a majority of the Irish Supreme Court held that this radical change, which had been effected in 1929, was nonetheless a valid amendment of the Constitution.Footnote 55 This, however, was not the only infirmity attaching to the 1922 Constitution Act because since May 1924 the Irish courts had sanctioned the doctrine of implied amendment.Footnote 56 By this was meant that if there was a conflict between an Act of the Oireachtas and the Constitution during the course of the original eight-year transitional period (later extended to sixteen years) the latter must be taken to have been impliedly amended by the enactment of ordinary legislation which conflicted with it.Footnote 57 This was, of course, totally at odds with any proper sense of a hierarchy of norms and it mean that during the currency of the Constitution it was almost impossible to know what it did or did not provide.Footnote 58
In this respect the Constitution of the Irish Free State suffered the same problem as the Weimar (German) Constitution of 1919 on which it had been partially modelled. Speaking later of the Weimar experience, Kelsen had a word for this: ‘Verfassungsdurchbruch’. This is a portmanteau German word for which there is really no precise English translation. It literally means ‘Constitution break-through’, but ‘breakthrough’ is not here used in the positive sense of, eg, a political breakthrough, but rather in its negative sense. One does not, however, really need to resort to Kelsenian theory to accept that such a state of affairs is not sustainable in the long term. This was one of the reasons why the new Constitution was passed by the Oireachtas in June 1937 and approved by a referendum held on 1 July 1937. Beyond repealing the 1922 ConstitutionFootnote 59 and bringing the Irish Free State to end, the new Constitution ‘was not enacted according to the mode of amendment prescribed by its predecessor … so that the whole proceedings amounted to a break in legal continuity; to a supplanting of one Grundnorm (albeit a disputed one) by another, and thus, legally speaking, to a revolution’.Footnote 60
Again, the Irish experience since 1937 is too complex to merit anything more than a few superficial closing comments. Whatever its other failings, the Constitution of 1937 is as thoroughly Kelsenian in its approach as it is possible for a written constitution in a common law country to be. Drawing on the experience of both 1921–1922 and 1922–1937, there is at every point a very clear hierarchy of norms together with a system for resolving conflicts of norms through the declaration of unconstitutionality mechanism which is expressly provided for in Article 34.3.2.⁰.Footnote 61 In that respect the power of judicial review of legislation provided for in the Irish Constitution does not simply rest on the implied powers asserted by the US Supreme Court in Marbury v Madison.
Moreover, all organs of state – executive, legislative and judicial – are expressly subordinated to the Constitution as a higher law. Article 15.4 expressly provides that a law which infringes the Constitution is to that extent invalid and, indeed, it obliges the Oireachtas not to enact such a law. The Constitution cannot be indirectly amendedFootnote 62 and, save for a very brief transitory period which expired in June 1941 and which period could not itself be amended, it can now only be amended expressly by popular vote.Footnote 63 A strict Kelsenite would of course insist on only one court with authority to rule on the question of norm validity. In fairness, the drafters in 1937 seriously explored the idea of a specialist Constitutional Court modelled on continental lines right up to the end of the drafting process.Footnote 64 It was abandoned only because they knew that the legal profession would be up in arms at the prospect of so radical a suggestion. De ValeraFootnote 65 later grumbled to the Dáil that as he could not come up with anything better, the Supreme Court would have to be given that power of constitutional review.Footnote 66 While this faint praise was scarcely a ringing endorsement of the Court, its subsequent performance in constitutional matters since that date has shown that it has been worthy of the task entrusted to it as ultimate guardian of the Constitution itself.
It is clear, therefore, that the referendum mechanism and popular sovereignty represents the ultimate Grundnorm in the Irish constitutional system. While this has been long recognised and understood, it has nonetheless been graphically illustrated by two important recent decisions. In Costello v Ireland Footnote 67 the Irish Supreme Court held in a hugely complex judgment that the ratification of the EU-Canada Trade Agreement (CETA) in its present form was unconstitutional. The majority noted that the Court of Justice had previously ruledFootnote 68 that the ratification of those aspects of the CETA Agreement providing for investor tribunals was a matter within national competence, so that this aspect of CETA was not ‘necessitated’ by the requirements of EU law for the purposes of Article 29.4.6⁰ of the Constitution in the sense that there was in fact no EU law obligation to ratify the agreement. Shorn, then, of this constitutional immunity (ie precisely because ratification was not ‘necessitated’ by EU law) that had the further consequence that these provisions were open to constitutional challenge.
The majority held that the ratification of CETA was unconstitutional as it could potentially jeopardise key aspects of Irish juridical sovereignty and constitutional identity. This could happen because the Agreement provided for investor panels whose judgments against Ireland in respect of legislative, executive or even judicial actions would be made more or less automatically binding on the state. The contrast incidentally between the reasoning and outcome in the Costello/CETA case on the one hand and that in Allister and Peeples on the other tells you all you need to know about the by now quite profound differences between UK and Irish constitutional law. The fundamental difference is that the Irish Constitution is a sovereignty-protecting form of higher law which expressly enables the court system to invalidate legislation or treaties which materially encroach upon that sovereignty, save where this is expressly authorised by the Constitution itself, as is the case with the European Union treaties which are now expressly referenced in the Constitution following a series of referendums. In the United Kingdom these questions are ultimately committed to the judgment of Parliament and, subject only to Privacy International-type issues, the decision in Allister and Peeples demonstrates that even in the case of constitutional statutes these provisions can be amended or overridden by subsequent legislation once this intention is made sufficiently clear by the later legislation.
In the second case, Heneghan v Minister for Housing,Footnote 69 the Court held that the Oireachtas was obliged to give effect to an almost forgotten constitutional amendment from 1979Footnote 70 dealing with the revision and expansion of the franchise for university seats in the Seanad, the Irish Upper House, so that the existing legislation providing for such elections was unconstitutional. The Court later set a specific time limit for enacting such legislation.Footnote 71 Here, again, the Court stressed that popular sovereignty via the referendum process was the ultimate Grundnorm in the Irish constitutional system,Footnote 72 so that the courts were obliged to give effect to the will of the People even where the legislative branch had failed to act.
V.
If you head out of Vienna and north west of the Landstrasse then, as the crow flies you will ultimately come across two neighbouring islands with close ties of history, culture and language. Their paths have diverged in the last 100 years, with that divergence clearly marked in the field of constitutional law. One has opted for parliamentary sovereignty as its ultimate Grundnorm, the other for popular sovereignty. Yet, as I hope I have just shown, they also share a common constitutional value, namely, the commitment to access to the courts so that the protection of the rule of law represents inviolable constitutional fundamentals in each jurisdiction. Perhaps this lecture has also shown that there is much about each system that we each need to learn from.
I started with Lord Denning, so allow me to close with Lady Hale. I cannot pay any finer tribute to the dedicatee of this lecture than to say that Lady Hale’s judicial output represents the most distinctive and visionary English legal voice since Denning himself. It has been a great honour to have been allowed here to pay tribute to that voice.
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