Rule of Law, Parliamentary Sovereignty and Executive Accountability in English Legal Thinking: The Recent Revival of The King Can Do No Wrong

Journal of Constitutional History, Forthcoming, Autumn 2022

27 Pages Posted: 15 Jun 2022

Date Written: May 27, 2022

Abstract

This paper features a novel, historical-consitutionalist take on the seminal decisions of the United Kingdom Supreme Court in Miller I and Miller II. I use "the king can do no wrong" as a heuristic device to reveal the radical implications of the Court's analysis. The constitutional pact reached in the 17th century - the Glorious Revolution - has finally been given full force and effect. The king can do no wrong in its constitutional sense has only recently come of age.

Accountability as an important dimension of the English historical constitution is captured by the many understandings of the expression the king can do no wrong. These understandings capture the constitutional triad composed of (1) the king’s personal immunity, (2) his ministers’ political accountability before Parliament, and (3) his ministers’ and servants’ legal liability before the courts. This triad was most recently illustrated by two decisions of the United Kingdom Supreme Court, Miller I and Miller II .

The perspective in this paper is a historical one which looks to the evolution of executive accountability, including the sovereign’s lack thereof, in understanding the constitution. Since the constitutional arrangement of the 17th century, the English king’s immunity from suit has often been associated with the king can do no wrong. If the sovereign is immune, her ministers and servants, however, are liable instead. Ministers’ legal accountability before the courts and political accountability before Parliament ensure that the rule of law and Parliamentary sovereignty are maintained, and both the legal and political accountability of the king’s ministers and servants are also conveyed by the king can do no wrong.

That constitutional triad has recently been illustrated by two recent decisions of the United Kingdom Supreme Court, Miller I and Miller II, both rendered at a moment of great historical and constitutional magnitude in the wake of the Brexit referendum and the country’s departure from the European Union.

Keywords: The king can do no wrong, political and legal accountability, ministerial responsibility, rule of law, Parliamentary sovereignty

Suggested Citation

Fortin, Marie-France, Rule of Law, Parliamentary Sovereignty and Executive Accountability in English Legal Thinking: The Recent Revival of The King Can Do No Wrong (May 27, 2022). Journal of Constitutional History, Forthcoming, Autumn 2022 , Available at SSRN: https://ssrn.com/abstract=4121673 or http://dx.doi.org/10.2139/ssrn.4121673

Marie-France Fortin (Contact Author)

University of Ottawa ( email )

57 Louis-Pasteur Private
Ottawa, Ontario K1N 6N5
Canada

HOME PAGE: http://mariefrancefortin.com

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