Yesterday, sitting in an unprecedented composition of all 11 judges, the UK Supreme Court ruled by an 8 : 3 majority that the Government cannot initiate the process for the UK leaving the EU (the notification under Article 50 of the TEU) by itself using the Royal Prerogative, but instead an Act of Parliament is needed. The decision itself and the press summary can be found on the Supreme Court website.
This is the constitutional case of a generation, and the result was eagerly awaited. The hearing, held over four days, had been live streamed and so attracted huge attention. This Kat feels he should blog about it, having covered the earlier decision of the Divisional Court that unanimously reached the same conclusion. But he finds himself strangely unexcited by the Supreme Court decision, in large part because the majority decision reaches the same conclusion on the main issue for similar reasons as the earlier judgment. It is clearer and more thoroughly argued, because the case was more thoroughly and better presented at the Supreme Court than at first instance, where it seemed to this Kat that the Government was barely arguing its position but instead assuming the result that it sought to persuade.
There has already been written a host of blogposts and newspaper articles on the Supreme Court decision - interested readers have probably read some already, but if not you can do worse than start here for a short account. So instead this Kat will record some perhaps peripheral reflections after a day of consideration.
The outcome on the main issue was what this Kat expected for the non-legal but very human reason that the Divisional Court decision was unanimously taken by three very senior judges (Merpel - an avid follower of the Order of Precedence - reminds the IPKat that two of them - the Lord Chief Justice and the Master of the Rolls - out-rank all of the Supreme Court judges apart from its President). It seemed unlikely that a further 11 very senior judges, who might be regarded as being very much ejusdem generis in their professional formation, would by a majority disagree.
The main issue is put in beautifully simple terms by Lord Hughes in his short dissenting judgment:
But, at some risk of over-simplifying, the main question centres on two very well understood constitutional rules, which in this case apparently point in opposite directions. They are these:
Rule 1the executive (government) cannot change law made by Act of Parliament, nor the common law;
Rule 2the making and unmaking of treaties is a matter of foreign relations within the competence of the government.
Nobody questions either of these two rules. Mrs Miller relies on the first. The government relies on the second. The government contends that Rule 2 operates to recognise its power, as the handler of foreign relations, to unmake the European Treaties. Mrs Miller contends that Rule 1 shows that the power to handle foreign relations stops short at the point where UK statute law is changed.
Mrs Miller’s case is that because there was an Act of Parliament (the European Communities Act 1972) to give effect to our joining the (then) EEC and to make European rules part of UK law, there has to be another Act of Parliament to authorise service of notice to leave. This is the effect, she says, of Rule 1. Thus, she says, Rule 2 is true, but does not apply.
The government’s case is that the European Communities Act 1972, which did indeed make European rules into laws of the UK, will simply cease to operate if the UK leaves. The Act was only ever designed to have effect whilst we were members of the EU. It agrees that as a government it cannot alter the law of the UK which statute has made, but it says that if it serves notice to leave the EU, and in due course we leave, it would not be altering the statute; the statute would simply cease to apply because there would no longer be rules under treaties to which the UK was a party. Thus, it says, Rule 1 does not apply and Rule 2 does.
Which of these arguments is correct depends in the end on the true reading of the European Communities Act 1972. Clearly, either reading is possible. The majority judgment gives cogent expression to the conclusion that it is Mrs Miller’s reading which is correct. For my part, for the reasons which Lord Reed very clearly sets out, I would have preferred the view that this Act was only ever to be operative for so long as the UK was a member of (first) the EEC, and now the EU.
That is the main issue in a nutshell. This Kat prefers the majority decision, because it construes the European Communities Act 1972 in a purposive manner. The dissenting judgments, of which Lord Reed's is the first and most detailed, rely on a much more abstract reading of the ECA 1972 in a manner that seems more like an exercise in algebra than a legal analysis. Also, they do not grapple with what otherwise seems to be an extreme constitutional oddity - a treaty that changes UK domestic law can only be ratified once Parliament has passed legislation that enables it (giving Parliament an effective veto), yet, according to the dissenting view, the Government can withdraw from the same treaty without further recourse to Parliament. Moreover, the dissenting judgments have no effective answer to the point that, according to their view, any Government could have withdrawn from the EU at any time without any Act of Parliament (since it was common ground that the Referendum does not have any legal effect - its force was only political in nature). Lord Reed's judgment answers that "Courts should not overlook the constitutional importance of ministerial accountability to Parliament", but that seems rather weak.
So far this post has considered the "main issue", but there was a further set of issues before the Supreme Court (a UK court) that was not part of the case before the Divisional Court (a court of England and Wales). These essentially involved the proposition that it would not be possible for formal notice of the United Kingdom’s withdrawal from the EU Treaties to be given without first consulting or obtaining the agreement of the devolved legislatures of Scotland, Wales and Northern Ireland. That was unanimously rejected by all of the judges; had it been otherwise the result would have been much more politically controversial, since the popular vote in Scotland and Northern Ireland was in favour of remaining within the EU, and so the consent of their devolved legislatures would be difficult to obtain.
The main issue is in fact less politically controversial, because it is entirely open to the Government to put before Parliament a very short Bill permitting the Article 50 notification. What distinguishes the Government from the Opposition is that former can ostensibly command a majority in the House of Commons, and so on the face of it the Government should be able to pass the legislation it needs. Indeed the Government has indicated that it still expects to be able to comply with its self-imposed deadline of the end of March 2017 for the Article 50 notification.
While checking who were the judges who dissented from the main judgment, this Kat was amused to find this article from The Telegraph on 4 November 2016, headlined "Four judges to rule on Brexit have previous ties to Europe", implying that this would motivate them to decide against the Government. In fact, two of the four, Lord Reed and Lord Carnwath, were among the three dissenters.
If the Government can pass the enabling legislation as it envisages, then the Brexit timetable of Article 50 notification in March remains on track. If MPs (or indeed Lords) seek to amend the Bill to impose restraints on the type of Brexit to be achieved, then the process could take rather longer.