Judgment Day on Article 50
I couldn’t resist a quick comment on today’s ruling by the High Court that the Prime Minister cannot trigger Article 50 of the Lisbon Treaty (and thus begin the process of taking the United Kingdom out of the European Union) without the approval of Parliament. The case was brought by Gina Miller and Deir Tozetti Dos Santos (the claimants) and has important constitutional implications because it limits the use of the Royal Prerogative.
I’m not by any means a legal expert but reading the full judgment it strikes me that this unanimous decision represents a comprehensive defeat for the Government’s lawyers. The crucial paragraphs of the judgment are 92-94 if you wish to refer to them in the full judgment. Interestingly, the ruling does not really rest on the claimants’ case at all but instead is based on a complete rejection of the main point of the Government’s submission. It looks like the Government’s lawyers bungled it pretty badly. Although the Government has indicated that it will appeal the result, it’s not obvious what the grounds for such an appeal might be. The appeal will be heard some time in December.
I’ve never made any secret of the fact that I am in favour of the United Kingdom remaining inside the European Union. Events since the referendum – especially the collapse of the pound – have strengthened that opinion, in fact.
I am baffled by the extreme reaction of many “Leave” voters to this judgment, especially those who voted that way in order to “restore Parliamentary sovereignty”. Some such individuals are claiming that this ruling is somehow anti-democratic. I don’t think that view is at all rational. If you voted Leave in order to get your sovereignty back then you should be very happy with this decision. In fact whichever side of the referendum debate you were on you should welcome this decision.
We live in a parliamentary democracy. That means that sovereignty rests in Parliament, not in the Prime Minister. This ruling merely asserts that fact. It does not overturn the referendum result nor does it prevent Article 50 being triggered. It does assert that the Prime Minister’s chosen way to approach BrExit is unlawful. Democracy is nothing without the rule of law.
Incidentally, the judgment also contains the following statement which I think is worth quoting here:
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.
In other words the referendum in itself has no constitutional force and was specifically intended not to.
The government plans to appeal the Article 50 decision to the Supreme Court, at which point it may or may not be overturned. If the appeal fails, then there is one higher authority: the European Court of Justice. It would be a delicious irony if the UK government were forced to appeal there in order to proceed!
Supposing, though, that all appeals are exhausted and the Government is forced to debate Article 50 in Parliament. What would happen next?
Although a majority of MPs in the House of Commons were in favour of remaining in the European Union, circumstances have changed since the referendum and many would be reluctant to vote against the outcome. However, I can imagine a situation in which Parliament refuses to give approval to an Article 50 until it has sufficient knowledge of the Government’s negotiating position to be assured that the Government is not planning something reckless that would endanger the UK economically and/or politically. It is my personal belief that “something reckless” is precisely what the Government is planning, and that is why they were so keen not to have a vote in Parliament.
There was only one question on the ballot paper for the EU referendum – whether the United Kingdom should remain in the European Union or leave it. But what, if any, of the rights and benefits that currently accrue as a consequence of our membership of the EU can the UK keep if and when it leaves? Who decides what rights can be removed from UK citizens?
There has been a lot of talk about “Hard BrExit” versus “Soft BrExit”. My personal view is that “Soft BrExit” (by which we would end up in a situation something like Norway) – which a sizable number of Leave voters envisaged when they voted – is not on the agenda at all. I think the Government is headed for a “Hard BrExit”, i.e. no membership of the internal market, no freedom of movement, no free movement of people, etc. That’s partly because of the ideological beliefs of the Tory cabinet and partly because that’s what the process pretty much guarantees. Article 50 is just about the UK leaving the European Union. That process has to be completed before any trade deals with the EU or other countries can be negotiated; such deals could take years to complete and in the meantime our economy will suffer. In the interim, we’ll be out with whatever the EU decides to allow us. I don’t think that will be very much at all.
I think that the Government knows that this outcome is not what a majority voted for, that it will have serious economic consequences, and will produce a considerable political backlash. That is why the Government want to charge ahead as quickly as possible (in secret) so that nobody can stop them until it’s too late. In other words, they’re planning to use the referendum result as a pretext to further their own agenda. In order to this to work they have to avoid Parliamentary scrutiny. The High Court ruling – if it stands – effectively rules out this strategy. It is a victory for democracy.
Follow @telescoper
In the Dark 
November 3, 2016 at 8:56 pm
Reblogged this on Disturbing the Universe and commented:
Good commentary on the Article 50 judgement today.
November 4, 2016 at 7:48 am
Actually in the UK constitutional sovereignty rests with the Queen as “The Crown in Parliament”.
November 4, 2016 at 5:41 pm
The phrase is pious waffle, cobbled together probably after the shift of power which took place at the English Civil War was formalised in the constitutional changes enacted at the ‘Glorious Revolution’ of 1688.
November 4, 2016 at 6:17 pm
Maybe it is, but it describes our constitution nonetheless.
November 4, 2016 at 6:35 pm
In that case please explain what it means, because I have no idea (and neither does anybody else I have spoken to, including lawyers).
November 4, 2016 at 6:57 pm
You could read the Article 50 judgment. It says quite a lot about this issue.
November 4, 2016 at 11:40 pm
This article discusses the meaning of “crown in parliament” without the issue of clause 50:
https://en.wikipedia.org/wiki/Queen-in-Parliament
It is, as I thought, pious waffle. The sovereign signs bills passed by parliament into law, but has no practical power not to. It is simply a courtesy extended to the crown by Parliament, which chopped off a king’s head in 1649 to make clear who was boss, and formalised the arrangement as a condition of inviting William of Orange to depose James II in 1688. It suits both sides to pretend that the crown has practical power, but it is not true and the phrase “crown in parliament” has no practical meaning.
November 4, 2016 at 11:30 am
One can debate the constitutional issues – which involve all of parliament, crown and judiciary – till the cows come home. We are not constitutional experts either. The key question is: What was the point of the Referendum?
November 4, 2016 at 3:38 pm
If you are cynical, it was for David Cameron to placate the Eurosceptic wing of the Conservative Party by offering a referendum that he thought would fail. That would explain the almost complete lack of planning for how Brexit would actually be achieved, or indeed consideration of such legal points as the one the High Court has just fixed on.
November 5, 2016 at 10:17 am
Cynical? Moi?
Let me rephrase the question: What is the purpose of a Referendum (ie, in general, not just his one)?
November 4, 2016 at 5:04 pm
The point of the referendum was for Cameron to appease his Eurosceptic backbenchers and give him a defence against UKIP. He gambled with the future of this country for purely selfish and narrow-minded reasons and LOST catastrophically. He then abandoned his post to leave someone else to fix the mess he caused.
November 4, 2016 at 5:38 pm
I am not very interested in discussing the constitutional fineries. Neither of us is experts and in any case such discussions normally degenerate into point-scoring when the real issue is elsewhere. A lawyer friend has suggested to me that the courts should declare it outwith their competence to decide. There is simply no law to interpret. What clause of what Bill can the lawyers say has been violated? That is what lawyers are for.
The real point is what a referendum is for, if not for parliament to then enact the will of the people regarding the issue in question. The idea that the purpose of a referendum is simply to find out what the people think is implausible in the era of opinion polls. OK, opinion polls might be out by a few percent, but the question then becomes: Why does parliament need to know exactly, rather than to within a few percent? Why did they need to know to such accuracy at the time they asked? (For the avoidance of misunderstanding I am asking you this question, Phillip; I do not merely mean it rhetorically.)
Last, are you not missing the word “against” at the end of your penultimate sentence…?
November 4, 2016 at 5:39 pm
Strictly speaking there wouldn’t be an appeal to the Court of Justice of the European Union (CJEU, although a lot of lawyers still refer to it by its until-recent name, the ECJ) from the Supreme Court. Rather, if the Supreme Court considered that its decision might turn on a point of EU law, it might refer that point to the CJEU for a decision.
From what I’ve read, the possible point of reference is whether Art.50 of the EU Treaty is reversible.
A reference to the CJEU is hardly going to allow the expedited appeal that the government seeks, though. (Indeed, the process is already being sped up by use of the ‘leapfrog’ process for bypassing the Court of Appeal and taking a matter of great legal significance straight to the Supreme Court.) I can hardly imagine that the CJEU is going to fast-track such a reference!
November 4, 2016 at 7:21 pm
The long grass looks a very attractive place for this issue to rest.
November 4, 2016 at 11:45 pm
What I find alarming about this ruling is that the judges declared *themselves* authorised to give a binding ruling on the issue. Whatever their ruling be, that is a failure of the division of powers.
November 4, 2016 at 11:55 pm
They are authorised to analyse the law and make sure it is being applied properly, its their job! The fault lies with the Government who decided they knew best and could ignore the constitutional laws developed over many many years if this country’s history.
November 5, 2016 at 8:34 am
I don’t understand this point at all. Of course they are authorised! That’s what they are for!
November 5, 2016 at 9:43 am
I take their job to be to identify and specify an existing law of the land which is being violated in a particular instance. They should be able to identify a particular clause of a particular Bill and their ruling should be no different in principle from a legal “Opinion” provided by a barrister about a question. Such Opinions are private documents, not executive ones, which is why I believe that the judges are exceeding their authority. So does this Professor of Law:
http://www.telegraph.co.uk/opinion/2016/11/04/the-supreme-court-must-overturn-the-article-50-ruling-otherwise/
Quote:
this is a matter that the courts should have declined to hear. The High Court should have dismissed the case as an abuse of the legal process because its intention, whether acknowledged or not, is to overturn the decision taken by a majority of voters in the referendum on June 23. This is a political dispute to be settled in Parliament, not by judges… Parliament is the sovereign body; but the executive retains residual Royal prerogatives that can be used without recourse to parliament. The courts can hold government in check when it oversteps or misuses the powers given to it by parliament, to which it is also accountable. But the referendum introduced a fourth element into this mix: the will of the people… The High Court made no judgment on the constitutional ramifications of the June 23 vote. It insisted that its only function was to consider whether in law the Government can exercise the prerogative powers it possesses when it comes to triggering Article 50. The court cannot simply pretend the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote… The court… argued that it was inconsistent with the constitutional purpose of the Act for the Government to be able to undo the UK’s accession by use of its prerogative powers. Maybe so; but it is not inconsistent with the outcome of the referendum… The judges said triggering Article 50 was tantamount to overturning domestic legislation by executive diktat. However, this would not change the law… Rather, it would begin a process under which the law would eventually be changed by way of a Great Repeal Bill which needs to go through parliament, thereby giving MPs a say in any case.
On another (related) subject, it was remarkable to see Sir John Coke referred to in the Ruling, and the Bill of Rights. Coke led the fight of the lawyers of England against the attempt by James VI of Scotland to impose his own absolutism on England after James came south to assume England’s crown after Queen Elizabeth died in 1603. He was in practical terms fighting for the English system of Common Law.
November 5, 2016 at 9:46 am
Disagree entirely. The judgment does not overturn the referendum result. It merely ensures that Parliament must enact the decision.
November 5, 2016 at 9:50 am
By the way “the will of the people” can and does change. In any case the referendum which is claimed to express that will has no standing at law. I would have thought a Professor of Law would know that.
November 5, 2016 at 10:16 am
Do let him know. I’m sure that you would both be better informed of the constitutional position by the end of the exchange.
November 5, 2016 at 11:19 am
What is being discussed in that opinion article (which seems to be unsigned, so I’m not sure who wrote it) is the concept of justiciability, i.e. the question of whether or not a question is one that a court can rule upon.
With respect to Anton Garrett, his assumption about the role of judges is not correct. The whole concept of ‘public law’ or ‘administrative law’ is that the judiciary, as part of the system of checks and balances of the state, has the power to review decisions of the executive and if necessary quash them on the grounds that they are contrary to the law, were made unfairly or outside the powers of the decision-maker, or are so unreasonable that no properly decision-making process could have led to them.
This is the field of judicial review, which I have some measure of experience in. I would note that judges don’t do this of their own volition; a JR case has to be brought by a claimant, who must have legal standing to challenge the decision. (In this particular case, it seems everyone involved conceded that pretty much anyone resident in the UK would have standing to do that.)
There are certain matters that fall within the Crown Prerogative. Without diverting into another discussion of what this means, a general description would be ‘those powers the executive has to reserve to its sole discretion in order to actually do the business of running the country without referring everything to Parliament or being challenged in the courts’.
Paragraph 5 of the judgment says this:
It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law. The policy to be applied by the executive government and the merits or demerits of withdrawal are matters of political judgement to be resolved through the political process. The legal question is whether the executive government can use the Crown’s prerogative powers to give notice of withdrawal. We are not in any way concerned with the use that may be made of the Crown’s prerogative power, if such a power can as a matter of law be used in respect of Article 50, or what will follow if the Crown’s prerogative powers cannot be so used.
So HM Government and its legal team approached this case with the express admission that it was a justiciable point. If it was HMG’s case that this was not a matter that the courts were competent to rule on, it would have run that as the first point of it’s case. It didn’t.
November 5, 2016 at 11:46 am
Elsewhere on the Telegraph website the same article appeared under the name of Richard Ekins, whom Google found to be a professor of Law at Oxford.
I welcome the view of someone who (presumably) has legal training; thank you. When experts disagree I can only hope that they discuss it publicly amongst themselves in a way that non-experts can comprehend. My points of concern remain these two:
1. The judges declared *themselves* authorised to give a binding ruling on the issue. Whatever their ruling be, that is a failure of the division of powers between legislature, executive, judiciary which has proven an essential part of successful democracies (whether constitutional monarchies or republics).
2. What is the constitutional point of ever holding a referendum?
November 5, 2016 at 11:57 am
Good point, in a Parliamentary Democracy, there is really no place for a referendum. The best it can do is act as a litmus test of public opinion at that point in time over a particular issue, which can then be used to advise Parliament what the “will of the people” might be. However, unless the Act of Parliament that enables the referendum gives it authority (as I believe the Scottish Referendum did), then it is nothing more than a jumped up opinion poll.
November 5, 2016 at 12:32 pm
“The judges know nothing of any will of the people except insofar as that will is expressed by an Act of Parliament.” – Dicey (1915)
November 6, 2016 at 4:26 pm
Anton, your statement under 1 is incorrect. In paragraphs 4 and 5 of the judgment it states that both parties to the case agreed that the Courts had standing to rule on this issue (ie that it was “judiciable”). In other words the government itself agreed that the High Court had jurisdiction.
November 5, 2016 at 1:41 pm
It is obvious that the point of holding a referendum in a representative democracy, given that the will of the people is easily determined to reasonable accuracy by opinion poll, is to enact the result. Parliament voted 6:1 to hold the referendum. Our parliamentary system will not deserve the name “representative democracy” if it now fails to enact the will of the people it claims to represent; such a claim would be exposed as hollow. This was always the point; I declined to hide behind legalities when discussing the weaker points of the Brexit argument (both sides deployed weak and strong arguments) when Brexit was in the ascendant. I trust that Remainers will not do so now.
November 5, 2016 at 1:48 pm
Parliament voted 6:1 for a Referendum Act which explicitly made the referendum non-binding (in contrast to the Act that set up the previous referendum on AV).
If and when the UK leaves the EU it surely has to be up to Parliament to approve the terms.
November 5, 2016 at 1:52 pm
A referendum ican only do and mean whatever the Act of Parliament s[ecifies. In the case of the EU referendum, the act specifically states that this is advisory only. See the highlighted sections here which shows the Briefing paper about the Act:
Full briefing paper here: http://l.facebook.com/l.php?u=http%3A%2F%2Fresearchbriefings.parliament.uk%2FResearchBriefing%2FSummary%2FCBP-7212&h=MAQEidReW
The point being is that the referendum COULD have been legally binding, but Cameron specifically created it to be pointless as he was doing it ONLY as a political tactic in his argument with his own backbenchers. The rest of the country has been taken for a ride in believing this referendum had any real meaning. Of course the result wasn’t what Cameron expected so he buggered off and left the mess for others to clear up and that mess.
November 5, 2016 at 2:08 pm
How will our parliamentary system deserve the name “representative democracy” if it fails to enact the will of the people it claims to represent?
November 5, 2016 at 2:20 pm
Because a representative democracy but its very definition doesn’t have to enact the “will of the people” except at a general election. We the people get to make a decision at the time of the election, where we choose the people who will represent us. Once that has happened, we have no more say in what they do apart from making our opinions felt via letters to our MPs, petitions or protests. However, our representatives have the constitutional right to completely ignore our opinions and enact whatever legislation they choose – cf Iraq war, Poll tax etc etc. its they way this system works. Look up what “Representative Democracy” actually means, its not what you seem to think it means…
November 5, 2016 at 2:36 pm
What do you think the “will of the people” is now, after all the main promises made by the Leave campaign have been shown to be false?
The reason the government wants to rush ahead in secret and with scrutiny is precisely to avoid having to pay attention when the “will of the people changes”.
Ps. Those of us who voted Remain, those who were not allowed to vote, and those who simply didn’t vote, are people too.
November 5, 2016 at 2:36 pm
Deliberately without looking it up, Andrew, I take “representative democracy” to mean that the people elect representatives to, er, represent them.
What (please) is the constitutional point of having a Referendum in such a system? If parliament frustrates the revealed will of the people then it will have failed to represent them faithfully, will it not?
November 5, 2016 at 2:38 pm
There is no constitutional point of having a such a referendum. It was held for party political reasons which backfired spectacularly.
November 5, 2016 at 3:01 pm
Deliberately without looking it up, Andrew, I take “representative democracy” to mean that the people elect representatives to, er, represent them.
I’m afraid your understanding is wrong, you really need to look up these sort of definitions and they aren’t straightforward.
As Telescoper has said and I’ve said before, a referendum is pointless in a Representative Democracy as a method of changing law. It is nothing but an opinion poll with delusions of authority.
November 5, 2016 at 2:51 pm
Those of us who voted Remain, those who were not allowed to vote, and those who simply didn’t vote, are people too.
Who has denied that? But those who opted not to vote don’t deserve political consideration, while those who were not allowed to were presumably prevented for a reason; who do you mean, please? Those who voted Remain: this is a binary issue in a country having a particular form of democracy; just as the Third Runway can go only in one place, we are either in or out of the EU, and parliament chose to consult the people. Parliament would not now be worthy of the term “representative democracy” if it failed to enact the will of the people – which opinion polls show has since the referendum swung much more strongly towards Brexit, incidentally.
I would add to Remainers that your feelings at not getting what you prefer are closely matched by those of Brexiteers during the several decades of consequences of Edward Heath’s lie (I am ready to justify that word). I, at least, gain no pleasure from your unhappiness, for we know how it feels, since we are people too. Can we continue to find common ground on other issues, and continue to work together for the good of the country we share?
November 5, 2016 at 3:01 pm
Here’s a contrary view about the polls.
It was a binary question in the referendum but it’s very far from being a binary issue. Do we remain in the internal market? Do we remain in the customs Union? Do we continue to allow freedom of movement? All these should be agreed before Article 50 is triggered.
I note your comment about the previous referendum, forty years ago. Leavers didn’t shut up after that, nor should Remainers now.
November 5, 2016 at 3:28 pm
Impassioned debate is part of this; I’ve asked nobody to shut up, and nor do I wish to. The point is that, whatever ultimately happens, people of both camps should be able to work together afterwards for the common good.
It was a binary question in the referendum but it’s very far from being a binary issue. Do we remain in the internal market? Do we remain in the customs Union? Do we continue to allow freedom of movement? All these should be agreed before Article 50 is triggered.
A referendum must be about a question which the country has power to enact, either way. In/Out is such a question. But the questions you raise depend on the negotiations.
November 5, 2016 at 3:38 pm
Andrew,
Perhaps if we had had referenda about the Iraq War and the Poll Tax then things would be better.
If our representatives choose to hold a referendum but then thwart the expressed will of the people, they are doing a faithless job of representing the people. Being picky about definitions doesn’t alter that fact.
November 7, 2016 at 6:44 pm
“The judges know nothing of any will of the people except insofar as that will is expressed by an Act of Parliament.”
That’s rather odd, given that
English law is the common law legal system governing England and Wales… English law has no formal codification: the essence of English common law is that it is made by judges sitting in courts applying statute, and legal precedent (stare decisis) from previous cases… Some rulings are derived from legislation; others, known as common law, are based on rulings of previous courts. For example, murder is a common law crime rather than one established by an Act of Parliament. Common law can be amended or repealed by Parliament…
https://en.wikipedia.org/wiki/English_law
November 7, 2016 at 6:54 pm
Not odd at all. What says is that were “the will of the people” to change the law then that would require an Act of Parliament. Dicey’s book, incidentally, is specifically about Constitutional Law.
November 7, 2016 at 8:05 pm
When judges create Common Law, as they do in England, they explicitly take into account the practice and therefore the will of the people. That is what a Common Law system means.
November 7, 2016 at 8:13 pm
Huh? This practice has nothing to do with the will of the people: it is to do with things established by other judges in response to cases brought and claims made (often centuries ago).
November 7, 2016 at 9:05 pm
Yet those judicial precedents were set under no statutes, no legislation. Look at the quote form Wikipedia about murder. And that is contrary to the quote from Dicey.
November 7, 2016 at 9:27 pm
There’s no contradiction with Dicey. The judges don’t consider “the will of the people” in any case unless it is established by legislation. Otherwise they go on established principles of the law interpreted in the light of precedent, as you say.
I don’t see what any of this has to do with “the will of the people” or anyone else, except the legislature and the judiciary.
November 7, 2016 at 11:03 pm
Common Law is based on the custom of the people, which cannot but reflect the will of the people. Could you (Peter) perhaps ask Simon Bradshaw if he will chip into this exchange?
November 5, 2016 at 1:54 pm
Sorry the links above were corrupted by Facebook – here is the direct link to the page where you can download the briefing paper PDF: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212
November 5, 2016 at 5:35 pm
Anton, MPs are elected to represent the interests of their constituents. These may be the same as their views, but they don’t have to me. If MPs are going to vote on this I will write to my MP arguing that the interests of the majority of his constituents are best served by remaining in the EU.
November 5, 2016 at 6:34 pm
I nowhere said that MPs must hold the same view as their constituents. Given that their constituents hold a diversity of views, it is in any case impossible. I am saying simply that if our representatives choose to hold a referendum but then thwart the expressed will of the people, they are doing a faithless job of representing the people.
November 5, 2016 at 7:13 pm
Thwart is a strong word Anton. I am merely saying that they must represent the interests of their constituents (note, not the people of the country as a whole) even if the expressed views of those people run counter to what the MP judges to be their interest.
November 5, 2016 at 11:45 pm
I’ve not checked what would be the result of the Referendum by parliamentary constituency, and I ‘m not sure if the votes were counted in that way. Do you know?
November 5, 2016 at 11:50 pm
The Referendum results were counted not by constituency but by local authority area, so there’s not a clear answer to this question.