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

Abstract

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. 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 17^th 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. The many understandings of the king can do no wrong in English legal thinking capture the constitutional triad formed by the sovereign’s immunity, the correlative legal accountability of Crown servants and ministers before the courts, and ministers’ political accountability before Parliament. 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.