Don’t abuse the Brexit litigants: their action shows that we live in a free country

The law firm Mishcon de Reya is bringing an action to force the Prime Minister, whoever she (or just conceivably he) may be, to obtain Parliamentary approval before issuing that all-important Article 50 notification.

The question in issue is a deceptively simple one but it has divided lawyers. Can the Prime Minister invoke Article 50 as an act of Royal Prerogative; or will she need to persuade Parliament to pass legislation before doing so?

At first sight it might appear that the point is somewhat academic. After all, should the Prime Minister issue the Article 50 notice, the most vital question would be not whether this was valid in UK law, but whether it was valid in EU law. It would be no good the UK courts saying we were still in the EU if the ECJ said we were out of it.  But in fact its validity in EU law depends on its validity in UK law. Article 50 (1) of the Lisbon Treaty explicitly requires that any decision to withdraw by a Member State must be:

in accordance with its own constitutional requirements.”

If the decision to withdraw has not been made in accordance with British constitutional law then it will be ineffective under EU law.

So it is of critical importance that any such notification is legally given under British law.

The central argument of those who say that the Prime Minister cannot legally give the notification without Parliamentary approval has been set out in great detail by Nick Barber, Tom Hickman and Jeff King in a widely read article for the UK Constitutional Law Association. All three are heavyweight lawyers. Barber is an Associate Professor of Law at Trinity College Oxford and author of The Constitutional State, a leading text on constitutional law; Hickman is an extremely brainy practising barrister; King is a leading member of the law faculty at University College London, and editor of the geeky lawyer’s bedside journal, Current Legal Problems.

In essence – and I deliberately over-simplify – their argument is this: Parliament authorised entry into the EU by passing the European Communities Act 1972. An Act of Parliament cannot be over-ruled by an act of Prerogative. Issuing notice under Article 50 would have the effect of over-ruling the 1972 Act, (or as they put it rendering it “nugatory”). The only legal, or constitutional, way of over-ruling or amending an Act of Parliament is to pass another Act of Parliament. So at root it is an argument about the balance of power between Parliament and the Executive.

The argument quickly gathered the support of Lord Pannick QC, Fellow of All Souls College Oxford, and by general consensus the cleverest practising barrister in the country. The highly respected Lord Lester of Herne Hill has also expressed his support through a letter to The Times.

It is doubtless not coincidental that both Pannick and Hickman have now been retained to act for the so far mainly anonymous (although they seem to include Zoopla boss Alex Chesterman) litigants who are bringing legal proceedings to force the Government to seek Parliamentary approval before triggering Article 50. I imagine the remedy that they will seek is a declaration that the Prime Minister cannot legally invoke Article 50 until the appropriate amendments have been made to the European Communities Act.

This legal analysis has not gone unchallenged.

The shrewd (sadly anonymous) legal blogger Spinning Hugo, who is very much a Remainer, has described the argument as so entirely without merit that he would not be prepared to stand up in court and make it. His argument (again somewhat over-simplified, but he himself says that it is a simple argument) is that the making and breaking of treaties has always been a matter of Royal Prerogative, exercisable by the Prime Minister on behalf of the Crown.  Leaving the EU is a simple matter of breaking a treaty, so it is for the Prime Minister to decide, if he wishes without the authority of Parliament.

Martin Howe QC, a leading Conservative and pro-Brexit barrister has confidently asserted that Mishcon’s argument is “devoid of legal merit.” What is more, he continues:

As a matter of political authority, the decision of the British people not merely permits but mandates the giving of notice, without the need for any vote by parliament….

It is deeply objectionable but sadly not unexpected that those who suffer from a deep-rooted contempt for democracy should resort to legal antics of this kind in an attempt to frustrate the democratic decision of the British people.” ”

For what it’s worth (which I readily accept is virtually nothing), and despite Howe’s careless elision of “legal merit” and “political authority,” I am inclined to agree with him that the action is unlikely to succeed.

But Howe’s description of the litigants and their supporters as people with a “deep-rooted contempt for democracy” is as absurd as it is insulting and intemperate.

He has not been alone. The often brilliant polemicist Brendan O’Neill wrote an extraordinarily silly piece for the Spectator in which he described the action as a “coup” by lawyers. Warming to his theme, the former Marxist continued:

this is an attempt by sections of the capitalist class to use the instrument of the law to slow and possibly slay the stated will of the British people. It’s a stab by the rich and powerful to prevent the swift enactment of the majority’s democratic desires. When that kind of thing happens in Latin America, when paunchy well-off Brazilian blokes lean on the political system because it isn’t doing what they want, we balk; we complain that their democracies are immature. Yet something very similar is now happening here. It’s more polite, yes; more British; but it’s similar.”

O’Neill’s fellow Spiked columnist Jon Holbrooke was no less aerated and hyperbolic:

We are now witnessing the tyranny of the minority whose weapon, having lost at the ballot box, is the law.”

All this is, of course, utter nonsense. If bringing a legal action against the Government is “tyranny” then the word has lost all meaning. And as for O’Neill’s argument that this is a “legal coup”; a coup d’etat is an attempt to overthrow the legal order by extra-judicial means. You cannot have a “legal coup.” It’s a contradiction in terms like a “silent noise” or a “dark light.” Bringing an action for judicial review is not similar to a coup: it is in fact almost the polar opposite of a coup.

Of course Parliament needs to listen to the result of the referendum, but that does not mean that a plebiscite with no legal force of any kind, permits, and still less (to use Martin Howe’s word) “mandates,” the Executive to ignore the law and the constitution. Presumably Howe realises this, and his ostensible position is that he thinks the law is clear. But his denigration of people who think otherwise, such as Lord Pannick or Lord Lester, is bordering on the contemptible.

Even the Foreign Secretary, Phillip Hammond, a man who is normally a stranger to hyperbolic episodes, has joined in, sounding like a bargain-basement Bukharin. He says he deprecates

big law firms trying to interfere in our political system trying to overturn the will of the people.”

Far from hurling abuse at the Mishcon de Reya litigants and lawyers, every true democrat should welcome the fact that it is possible for this action to be brought despite the referendum result. Obedience to the law is necessary for democracy to function at all. Other countries have had systems in which “the will of the people” trumps the rule of law but they have not been democracies. We saw the principle in action recently in Crimea, where the will of the people (expressed in a referendum) was deemed sufficient to justify the illegal annexation of part of Ukraine by Russia.

Once “the will of the people” trumps the law of the land the result is not democracy: it is mob rule or tyranny. Tyrannies are not tyrannical because they are unpopular – many have been very popular – but because they are lawless.

Of course Mr Howe and Mr Hammond are not tyrants or even apologists for tyrants; and I am sure that Mr O’Neill, despite occasional appearances to the contrary, has long since modified his Marxist ideology out of all recognition. It would be better though if, instead of resorting to silly hyperbole or unworthy abuse, they recognised that the ability of the courts to restrain the power of the Executive, and if necessary to do so despite “the will of the people,” is one of the principal characteristics that distinguishes a free country from a tyranny.

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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

25 thoughts on “Don’t abuse the Brexit litigants: their action shows that we live in a free country”

  1. We all, I believe, entitled to criticize the Brexit litigants in no uncertain terms. Far from proving we live in a “free country” such action only shows a contempt for democracy and for the majority of the people in this country. It is blatant elitism. The action is brought by a few rich people, possibly acting on behalf of hidden Establishment figures.
    If anyone brought a court action to block implementing the outcome of a general election, where far smaller percentages of the population actually bother to vote, they would be laughed at. They would be regarded as bad losers, anti-social, anti-democratic and dangerously arrogant. That is just what this action is.
    Mishcon de Reya is the same firm that defended Chris Huhne in his mendacious litigation. Money-grabbing unscrupulous bandits is the term that comes to mind.

    1. The point Matthew is making is that the will of the majority does not trump the law. If a jury found a criminal Defendant in a high profile case whom the government wished to see behind bars not guilty, we would consider it the height of tyranny if the government then organised a referendum as to whether he was guilty or not.

      Seeing law as superior to democracy is what distinguishes a liberal democracy from a totalitarian democracy. The latter has had a long history from Rousseau via the French Jacobins to the Russian Bolsheviks; it essentially says that the momentary will of the majority is supreme and overrides any namby pamby ideas like due process and the rights of the individual. It’s not generally how things have been done in Britain.

      1. Would this be like where governing powers arrange for helicopters from the governing broadcasting body to be around in order to generate more allegations ?

        Just asking.

    2. Absolutely, if the vote went the other way and working class folk decided to club together to bring the same case, we would be laughed out of court, if it ever got there, which I know it wouldn’t. So, what is the point in voting if the outcome is rejected by the wealthy and so called well born. Will we have to keep voting until the outcome is acceptable to them. Do we really live in a free society, where everyone should feel that they are entitled to a say in how their country is run? We fought two wars to protect that very thing, it is our right as human beings to have a say. I agree with everything clairethinker has said. Go for it girl

    3. I could not agree more & it is a blatant misuse of the law to serve anti democratic elites, of that there is no doubt, they should be singled out and identified for what they are and represent.

      1. How do you know for sure that they are anti-democratic elites unless it has put to the test in a Court of Law? They might actually be saviours of democracy? Last I heard, excluding 16-17 year olds from a vote that profoundly affects their futures, and also excluding the rights of European citizens who have made their homes here, is not democracy, it was gerrymandering on an industrial scale. To change a constitution should require a lot more than a wafer thin majority.

  2. Matthew, an interesting piece. But I think most people who turned out on 23rd June thought they were voting in a national referendum, as promised and organised by our recently elected government. It seems some now seek to reduce the status of this exercise to little more than an e-petition, so they can have a go at overturning the result.

  3. Thanks, Matthew,for another excellent review of an interesting situation. Perhaps one of the main benefits of the recent referendums will be a wider understanding and interest in the constitutional workings of the UK and its component countries. In the long run, this may outweigh the negative volumes of vituperation that they seem to trigger. I hope that the new PM will seek parliamentary approval for issuing the Article 50 (if they still wish to issue it!) regardless of the legal challenge, but think the legal challenge had to be made to clarify the position on referendum results in this context. I would take the same view even if a majority of the eligible electorate had voted for Leave. It’s the principles that count, regardless of who is funding legal challenges. I would also like to see some legislation on constitutional referendums to prevent major changes being “won” if less than 50% of the electorate vote for them – but perhaps that would reduce the chance of needed stimulatory change giving the country a kick up the….

  4. Scotland is viewing this challenge with a variety of emotions and feelings. Many of us here feel that our wish – as a country with our own laws and identity to remain in the EU should not be subservient to the views of a greater number of English and Welsh voters.
    However, there are also opportunistic, pro-EU, Nationalists rubbing their hands together at the meltdown in Westminster and seeing the opportunity for mischief making- and possibly a new referendum on Independence.

  5. Well said. I particularly liked the idea of Philip Hammond as a ‘bargain basement Bukharin’ – it’s the kind of epithet Michael Foot might have used.

  6. Matthew,
    Although I haven’t (and do not intend to) read the Barber+Hickman+King article, it is patently obvious even to a non-lawyer like myself that, basically, the European Communities Act 1972 brings into UK law the terms of the various pre- and post- accession treaties of the EU. This state of affairs will continue to operate until such time as there is a further treaty concluded between the UK and the EU which will mark our actual ‘exit’ from the EU, and only at that point does the ECA become redundant (or nugatory) because until that new treaty is concluded we will still be subject to all the treaties which the ECA recognises.
    And since s. 1(3) of the Act stipulates that “[i]f Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the EU Treaties as herein defined, the Order shall be conclusive that it is to be so regarded”, clearly the Royal Prerogative by which the Crown accedes to treaties is already acknowledged by the Act to be one of the bases by which the Act may be amended when the time comes. Invoking Article 50 is not that time: it is merely a preparatory step which is set out within one of the Treaties which the ECA recognises, ergo, it is already part of UK law.

  7. The legal question is an interesting one but the proponents seem to miss the broader point: ignoring a protest vote only makes it larger.

    What is the likely mood of the electorate if MPs shun their constituents and shun the popular vote?
    Relatedly, what would the atmosphere be like within the European Union if MPs kept us in against the clear wishes of the majority? The UK would be seen as forever one act of parliament, or general election, away from leaving. It wouldn’t work.

    To the people who want to remain in the EU via these means I say go ahead – let’s have MPs vote on it – if you think this will help the country I think you’re mistaken. The political and social atmosphere in the country would significantly deteriorate from todays (already rather) depressing levels.

    Remainers, it’s time to move on.

    1. I think it’s becoming increasingly clear that leaving the EU will indeed have a detrimental economic effect and that when push comes to shove the great British public will prefer the pound in their pocket to whatever concerns they have about sovereignty or immigration. It’s true that this was widely pointed out during the referendum campaign, but 3 years of bad economic news as exit is negotiated is likely to imprint firmly on the public mind that it wasn’t project fear after all; it was true.

      That being the case, I can well see the pro remain House of Commons legislating for a further referendum in 2019ish on the terms of exit, with the exit terms then being rejected. It’s difficult to see how the leavers can argue against that, given they are so fond of democracy and the sovereignty of the people.

    2. Key findings from the Sritish Social Attitudes report:

      “While 65% are sceptical about the EU, and want it to have less power, only 30% support Britain’s withdrawal from the EU.
      Nearly half agree that being a member of the EU is ‘undermining Britain’s distinctive identity’ but only around a quarter think Britain’s economy would be better off if we left the EU.
      Amongst those who do think Britain’s economy would be better off if we left the EU, 72% support withdrawing. In contrast, amongst those who believe the economy would be worse off, just 6% support leaving.”

      In other words (groan) the referendum asked the wrong bloody question. The public do not actually want to leave the EU, they wish to reduce it’s powers.

      1. Leaving the EU does reduce its power over us, although that will take some time to be fully achieved. Staying in does not. So I think the question was 100% correct.

      2. Which you can’t actually do. There’s a lot of talk of “influence”, what it amounts to is what David Cameron came away with ; nothing.

  8. The leaflet circulated by our own government prior to the election said “This is your decision. The Government will implement what you decide.” I can upload a photocopy of this if allowed.
    How could they make such a promise to do something illegal?
    I don’t believe in this so-called “totalitarian democracy”, I think it is a myth just like the tooth-fairy. What is at work in this court-case is neither liberal nor democratic – it is sheer self-interest by rich people who use the EU system to get huge amounts of subsidy, sinecures, and power. They make us pay higher taxes so that there are millions and billions for them to cream off. They want to keep the plebs down.

  9. If democracy worked there would be no attempt to quosh article 50.
    The debate has been run and the leavers have won.

    What the referendum has highlighted is a polarised class war between the London-centric intellectuals/professional middle-classes who have done exceedingly well out of 40 years of EU membership and the ordinary yeoman people of this country ( along with all those living beyond Watford Gap) who have paid for it with diminishing incomes, diminishing opportunities, diminishing jobs and increasing frustration at the political elite who have organised the world to suit themselves.

    The silent majority of ordinary folk have been repetitively deprived of their national identity and self-worth by quick-thinkers who have in the past been able to convince the plebs that, for them, meaningless ideology about a unified Europe is worth all the suffering and sacrifices they (the plebs) would have to make.

    The political elite became so used to slapping the electorate in the face with a wet fish every few months and getting away with it that they took democracy for granted and forgot what politics is really about until the first symptom manifested. Core voters of the three main parties began to leave their traditional allegiances at an alarming rate when UKIP provided them with a genuine political alternative choice.

    At the eleventh hour Cameron was forced into offering the EU referendum to gain back core Tory voters and win the last election. All the smug pundits wrote off the Tory party then because the ‘yeoman factor’ did not even impinge upon their consciousnesses. Yet they got in against all the odds. Suddenly democracy for the people by the people was seen to be working. Despite the despicable lies of Project Fear which simply illustrated the clear intellectual contempt that the ideologised middle classes have of the ordinary working man.

    The result was a seismic shift in UK politics, but the habitual arrogance of the ‘remainers’ is such that they still think they can continue to impose their will on the outcome and overturn what the majority want. In this they are deluded. Just as in post Weimar Germany it will create a very dangerous political situation in which the extreme right will prosper and increasingly violent protests between right and left will ensue on our streets.

    If Tory, SNP and Labour career politicians try to force this issue with campaigns such as the Mischon De Reya writ etc., the government will fall and a general election will be forced at which people who have normally voted Tory or Labour for generations will leave those parties in droves to punish MPs for working against each other to defy the wish of the people. This will very probably put UKIP in power and then instead of a gradual and sensitive withdrawal from Europe which would put Britain in a better position, there will be an over-fast withdrawal demanded by the populace to make sure that Parliamentary toffs cannot regain control and bring us back into the EU again.

    The old political elite will be broken forever and I for one say that might be no bad thing, so come on ‘Remainers’ do your worst to defy the populace again and let’s see what you get. In the smug self-centred way that the middle-classes view the world, they assume that if there was another chance at a referendum the vote would go their way. I think the very reverse. Their Project Fear lies worked very well on probably 10% of the voting public but it won’t work a second time and I assume that such people will switch to Leave. Then we will have the unedifying spectacle of 40% of people who vote to remain, refusing to concede and claiming that a referendum where 60% of the people voted out is somehow counterfeit and undemocratic!

    The mother of democracy indeed!

    Arnold Frampton

  10. This is the internet address of the full text of the leaflet the Government circulated before the Referendum. In the section headed “A once in a generation decision” it says “This is your decision. The government will implement what you decide.”
    That doesn’t sound to me as if the Referendum was merely consultative. It is a pledge to act in accordance with the Referendum’s outcome.
    The government will face a considerable amount of public anger and civil disobedience if it tries to disregard the result, with or without a court decision.
    The EU has already started to exclude our representatives from meetings. Juncker has said “Leave”.
    The UK should not pay the £12 billion demanded by the EU for the next financial year or any of its monstrous fines and other costs as well. Benefits to non-British citizens should be stopped.
    We should all stop paying VAT on Kindle books and energy bills.
    All tax revenues to be kept in this country and spent on our needs.

    As for the “plight” of British citizens living in the EU, Remainers never took the slightest interest when these people are banned from working by French unions or heated out of their freehold to houses purchased in Spain, or left for years on end without a domestic water supply. Funny all this concern for them now!!!

  11. “An Act of Parliament cannot be over-ruled by an act of Prerogative. Issuing notice under Article 50 would have the effect of over-ruling the 1972 Act, (or as they put it rendering it “nugatory”).”

    But is there not a fallacy here? The Act of Prerogative is simply to exercise the right established under the Lisbon Treaty, the right to trigger departure. The Lisbon Treaty contains a simple device for the departure of a state, and thereby contains the mechanism for it to be unwound and the seed of its own ‘destruction’ by ‘venting’ the UK from the EU, like a furball or ambergris, as you wish.

    The issue around the ‘own constitutional requirements’ may be read as (i) simply establishing that EU law establishes no requirements other than that the notification should be done (naturally enough) by the competent authority of the Member State concerned. This is somewhat tautologous, since clearly the Member State (and only the Member State) may speak for itself on Article 50 (1), so e.g. the Wales First Minister may not trigger Article 50, ultra vires.

    And the effect of withdrawing from the Lisbon Treaty is not to over-rule an Act of Parliament, but to do something allowed for by an Act of Parliament, that which enshrined the Lisbon Treaty in law, and in the alternative, it would not repeal the 1972 Act, but would leave the post-Brexit Parliament in a position where it is bound by the provisions of 2 (2) (i.e. in effect bound by a predecessor Parliament), so how long is that going to last?

    And if passing an Act of Parliament to allow for a referendum, yet leaving the implementation of that to the Prerogative is not in accordance with its own constitutional requirements, how is it that Parliament has legislated on changes to the Lisbon Treaty, providing a ‘lock’ mechanism against further changes with a requirement for a referendum on certain changes (including Article 50 (3) regarding unanimity for an extension) yet it has placed no restriction whatsoever on the use of Article 50 (1)?

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