Next week, the Supreme Court will hear the Government’s appeal over Article 50. At the beginning of last month, it lost in the Divisional Court. The judges there decided that, despite the EU referendum result, the Government did not have the right to trigger Britain’s departure from the EU: it needed parliamentary legislation first.
Since then, there has been much anger on both sides. Brexiteers have assailed the judges for their bias. Remainers have said how disgraceful it is to attack the judges.
Signals from the judicial family have confirmed the widespread sense that our Supreme Court’s members are instinctively uneasy with leaving the EU. In faraway Malaysia, Lady Hale pre-empted her own court’s sitting to hail herself and her fellow judges as the real guardians of the constitution these days. The she chucked a new stone in the legal pond. Even a simple Bill to implement Article 50 might not satisfy the judges, she said (though this has not come up in court): Parliament might have to produce a “comprehensive replacement” for the European Communities Act 1972 before anything could happen.
For her part, Lady Neuberger, wife of the President of the Supreme Court, was reported here to have tweeted against Brexit and the Government about 50 times since the referendum. It was culturally unimaginable that she would have tweeted for the Leave side.
With belated wisdom, Lady N has made no Brexit tweets since her earlier ones were revealed. On Thursday, she confined herself to twittering:
Cold knees perhaps, but one does not detect cold feet. The prediction in legal circles is that our most senior judges, being almost all Remainers, will uphold the lower court’s decision. It is not, you understand, that they make up the law to fit with their politics. It is rather that their entire view of life dictates their understanding of the law: “Europe” is civilised, popular votes are barbarous, and judges, being on the side of “human rights”, are there to put down elected politicians.
I expect the predictions are right, and the Government will lose. But it will be a great shame if this battle is not properly fought. We shall have reached a dangerous moment in our constitutional history. Our decisions about our collective future, made at the ballot box, will have been unpicked by judges. And this just when we thought – and had been repeatedly assured – that we would have, as the then Foreign Secretary (Philip Hammond) told the Commons when he introduced the referendum Bill, “the final say”.
In its first court outing, the Government took an unnecessary stance. It rested almost everything on the argument that Britain could, at any time since entry, have got out of the EU under the “royal prerogative” – the slightly arcane phrase for the freedom of the Executive to act without legislative votes in matters like the making and unmaking of treaties.
This argument might be right, but it ceded a sort of rhetorical advantage to the Remain side. The Government looked as if it was defending its privilege, the judges as if they were defending parliamentary sovereignty. It reminded me of the gay marriage controversy, in which thousands of activists who had never supported marriage in their lives suddenly declared themselves its great upholders, in its single-sex form.
"Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act."Lady Hale
More important, the Government’s case did not focus enough on two key legal arguments. The first is about Article 50 itself. The judges concentrated on the European Communities Act of 1972. But of course Article 50 did not exist then, so the judges were inventing parliamentary intentions about something which had not yet happened. Article 50 is part of the European Union (Amendment) Act of 2008 which resulted from the Lisbon Treaty. Lisbon produced even more European integration, so Article 50 was its built-in counterweight. For the first time, the law specifically stated that it was possible for a member state to leave the EU. Article 50 set out the procedure for that.
Other sections of the 2008 Act specifically curtailed the exercise of the prerogative in various aspects of European treaty revision, but not in relation to Article 50. It was never argued at the time that the Government’s right to trigger the process of leaving was qualified in any way. Article 50 is that right, provided for in the treaty and in our law. It doesn’t need an extra law to make it work.
The other act weakly expounded by the Government, and virtually dismissed by the Divisional Court judges, was the 2015 Referendum Act itself. The judges airily declared that “a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.”
Technically true, perhaps, but our judges pride themselves on taking account of developments in our constitutional arrangements. Have they not noticed that there have now been several occasions when Parliament has passed vital decisions to the people in a referendum? That is how Scotland, Wales and Northern Ireland all made their present devolution settlements.
So it was in the case of the Brexit referendum with – if the expression is known to the British constitution – knobs on. The referendum was promised in the Conservative manifesto in last year’s general election. It was not an opinion poll, but a ballot conducted according to law, paid for by the taxpayer. All those framing the legislation, from David Cameron downwards, said its result would be final, and that a Leave vote would be effected immediately.
As Lawyers for Britain quote in their submission to the Supreme Court, it is a legal principle that “a statute is to be read in the historical context of the situation which led to its enactment”. Just so. The historical context here is that Parliament itself decided that it should pass the ultimate decision to the people. As Mr Hammond put it in the debate, all agreed that “the decision about our membership should be taken by the British people, not by Whitehall bureaucrats… not even by Government ministers or parliamentarians in this chamber”.
"For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House"Philip Hammond
The Divisional Court judges did not seem to grasp this idea of popular sovereignty, granted by Parliament, yet it is central to what happened.
The Master of the Rolls did at least notice it, called it “a complicating factor”, and dropped it. In the most off-beam part of their judgment, he and his fellow judges relied on a briefing note drafted by the House of Commons library, which said that the referendum was “advisory”, as if such a document proved anything. Citing this scrap of paper, they conveniently forgot their own insistence (see above) on the need for “very clear language… used in the referendum legislation in question”.
If this referendum was advisory, it was so only in the sense in which the Queen acts on the “advice” of her Ministers. It is well understood that if she does not act on their advice, she is breaking the constitution. So it would be here, if the Crown were not to act on the “advice” of the people.
If the law has not noticed this development, the law is, as Dickens’s Mr Bumble put it, “a ass”.
