Some rushed and barely coherent thoughts on today’s Article 50 judgment

Cases in the Administrative Court are often a bit like the Radio 4 programme You and Yours: of limited general interest. Whilst often very important for the development of the law, and for those immediately concerned, they lack the sort of immediate news value of – for the sake of argument – a rape trial involving an international footballer. Typically they will be about planning, or immigration or benefits.

This was different. It was about a question that has occasionally convulsed the nation since at least the seventeenth century: who rules Britain, Parliament or the Queen? In fact nobody contends that the Queen does so in person, but Her Government argued that the Prime Minister can do so by the use of Her prerogative. It was in fact a modern version of the Civil War, albeit conducted – in court at least – with courtesy and law reports rather than muskets and cannon balls.

No wonder the www.judiciary.gov.uk website was creaking under the strain this morning as it dealt with an unprecedented demand to download the Brexit judgment.

And most of those who took the trouble to read the judgment will have been impressed, even if many will have been disappointed by the result. In clear and authoritative prose – the joint work of the Lord Chief Justice (the head of the judiciary), the Master of the Rolls (the head of the civil division of the Court of Appeal) and Sales LJ – the Court explained why they were ruling against the Government.

The judgment was a ringing endorsement of Parliamentary sovereignty, the principle upon which the Brexiteers ostensibly fought the referendum. The principle, and its current relation with EU law was explained in 2 paragraphs:

It is common ground that 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 law than primary legislation, save only where Parliament itself has made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole exception to this.

But then this, a legally uncontroversial observation which might nonetheless have irritated Brexiteers:

But even then Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has the power to repeal the ECA 1972 if it wishes.”

If the UK Parliament is “sovereign and supreme” anyway, what has all the fuss of the last six months been about? If the judges are right, haven’t we all been getting worked up over a chimera? One might well ask.

The judgment then takes us on a glorious canter through Coke (1610):

The King by his proclamation or other ways cannot change any part of the common law, or statute law, or customs of the realm ….”

and

“The King hath no prerogative but that which the law of the land allows him.”

On to the Glorious Revolution (1688):

That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath been assumed and exercised of late is illegall.”

And Dicey (1915):

The Judges know nothing of any will of the people except insofar as that will is expressed by an Act of Parliament …”

It is wonderful stuff, the sort of thing that would normally make Daniel Hannan purr with patriotism, and might in a different context even put colour into Theresa May’s rather pallid complexion. This is why, you can’t help thinking as you read,  Britons never, never, never shall be slaves.

The court briefly touched on the point that the referendum provides some sort of “popular sovereignty” authorising the Prime Minister to act without reference to Parliament, or that the Referendum Act provides some statutory authority to do so. Counsel for the Government made no such argument, and – as the judges observed – “he was right not to do so”:

“… 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.”

And this:

The 2015 Referendum Act was passed against a background including a very clear briefing paper to Parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended to be only advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

And you can say that again.

I don’t have time to do a long post on this judgment, as it happens I’m in the middle of moving house, and it’s been a terrible distraction already. There are boxes to be unpacked and beds to be made.

Just a couple of other things:

The Attorney General has come in for a bit of stick over his handling of all this. I must admit that I was dubious about his decision to lead from the front, when he doesn’t have much experience of this sort of litigation. He was the official leader, his name appears first on the list of the Government’s counsel, and he himself opened the Government’s reply in court. On a personal level I think it showed enormous courage. I have sometimes gone into court myself wondering what on earth I am doing exercising the huge responsibility of advocacy: it’s not a pleasant feeling, and it’s absolutely awful when you then lose and you think everyone is blaming you, and quite often they are. Disappointed clients do, I am afraid sometimes justifiably, blame their advocates. So I think he deserves personal goodwill and sympathy.

(In fact most of the advocacy was done by his “juniors”, the highly experienced James Eadie QC and Jason Coppell QC. I have no doubt that they did a good job, despite the rather nasty whispers that have been floating around).

That said, the Attorney took a gamble by leading, and it didn’t pay off. As with cricket, so with advocacy: it’s always a good idea to open the attack with your best bowlers. There will, I’m afraid, always be a nagging thought that Mr Attorney was playing the part of an amateur captain in a county cricket match from the 1950s, insisting on opening the bowling with his military medium long-hops, thereby preventing the professionals from getting stuck in while the new ball is hard and the morning cloud cover conducive to swing.

Finally – for now: not enough credit has been given to Nick Barber, Tom Hickman and Jeff King, all of the constitutional law association, whose closely argued blog on why the Prime Minister could not rely on the Royal Prerogative to invoke Article 50 was published on June 27th, just 3 days after the referendum result. Their article met with a lot of scepticism – including from me. But their central argument was taken up by David Pannick QC, first in The Times, and then of course by his successful advocacy in the High Court. And, as today’s judgment shows – subject of course to any appeal – they weren’t wrong, they were thumpingly and thrillingly right. It’s not often that a blog-post leads to a development of such enormous constitutional moment.

This has been an excellent day for Parliamentary sovereignty and Parliamentary democracy.  The Supreme Court will host the rematch next month. I can hardly wait. An unprecedented (I think)  11 Supreme Court Judges will hear the case.  When they deliver judgment it will be a lot more exciting than, I don’t know, even the most gripping edition of You and Yours.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

12 thoughts on “Some rushed and barely coherent thoughts on today’s Article 50 judgment”

  1. To me there are two issues intertwined here.
    One is the very important point of procedure (of which todays news is important).
    And the other is that of some people wishing to use parliament to overturn the recent referendum.

    When/if this gets all the way to parliament, isn’t May just going to ask “do you want to leave now with no deal, or trigger article 50 and have two years of negotiations before leaving?”

    I know which one I’d prefer.

  2. Excellent piece. Taking back control ! While there’s little doubt Parliament willl follow the expressed wish of voters to leave the EU there’s a bit more to this and it’s absolutely right that our elected representatives have a say in where lines are drawn. It’s not acceptable for Ministers to do deals with the likes of Nissan for example and then not be open and transparent about the nature of said deal. I seem to remember Brexiteers railing against the power of mighty corporations during the Ref.

  3. Most remain-leaning MPs have said that they respect the decision made by the electorate but wish for parliament to be sovereign and take the decision on the terms of our exit. This is not about overturning the referendum; it is about ensuring the country is represented properly.
    I have no doubt that MPs will eventually vote to trigger article 50. However, they should hold off until they have scrutinized the government’s proposals.

  4. Who says we don’t have a constitution, when the Judges in this case can rely on it so heavily. What a wonderful day for British democracy to see Parliamentary authority so strongly re-asserted. It was a definite improvement on the methods of the English Civil Wars.

    Thank you for an excellent blog.

    @HuwSayer

  5. One thinks the whole issue of the referendum and the constitutional issues brought into the light by this judgement, only serve to illustrate all too clearly, the constitutional mess The United Kingdom of Great Britain and Northern Ireland has got itself into from lacking a well thought out and comprehensively constructed codified constitution.

    Our constitution such as it is is a mixture of Constitutional Statute, precedent, constitutional conventions (i.e. the office of Prime Minister).

    The fundamental question is this: Who ultimately is sovereign within a nation? The legislative, the Executive (practically one and the same under our system of representative democracy, the Judiciary or the People?

    Representative democracy in the UK is not fit for purpose. It is time to change how we are governed.

  6. As someone who is currently studying jurisprudence in her final year of her undergraduate degree I find this to be interesting from the point of view of looking at Hart’s The Concept of Law. It seems like the English judiciary have pin pointed the ultimate rule of recognition in the UK system in a way it’s seemingly impossible to do in countries like Ireland where the Constitution itself has declared the people to be sovreign while also defining the concept of the people thus creating a chicken and egg paradox.

  7. Don’t remember any complaints when EU legislation was being rammed through, without parliament getting any say.

    You know, 5% VAT on tampons, EU flags on driving licenses, number plates, town halls etc

    EU recycling & landfill directives

    Pay rises and a different tax regime for the nabobs in Brussels

    Apparently EU law supersedes British law

  8. This is all very specious. The courts have no business meddling in Parliament’s affairs. As for “There has never been a loss of sovereignty” it’s the way you tell them!

  9. There are many aspects of withdrawel that were not asked in the referendum, eg if the UK stays in the European Customs after leaving the EU or not. Parliament will have to decide. If the UK leaves the European Customs Union it will either cost many jobs at Nissan, Toyota, Honda etc and their suppliers, if the UK stays in the Customs Union it will make Liam Fox and the staff at his new ministry redundant.

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