Supreme Sacrifice. The Article 50 case moves to the next level
Alastair Meeks who accurately predicted the decision of the Article 50 case gives his take on the appeal.
The government got given a gut punch by the High Court in the Article 50 case. Its proxies in the press had a meltdown and the government shamefully declined to distance itself from the barrage launched at the judges. (Shamefully and stupidly, as we shall see shortly.) But now the caravan moves on to the Supreme Court where both sides get another bite at the cherry. Will they get a different result?
The nature of the case has been woefully and wilfully misrepresented in the media. The case was not about whether Brexit should be blocked: it has not blocked Brexit. Nor was it about whether the referendum decision should be binding – it was conceded by the government that the referendum was not formally legally binding. The case was about whether the government could initiate the withdrawal of Britain from the EU under Article 50 of the EU Treaty without Parliamentary approval. And the High Court decided that the government first needed Parliamentary authority.
The High Court judgment has received a cool reception not just from the press but also from quite a few legal commentators, though for very different reasons. Refreshingly, the legal commentators have so far declined to stigmatise the judges as enemies of the people and have instead focused more on their analysis of the interaction of European law and domestic law. On the law as it stands, there are weighty arguments both ways (see here and here).
Such arguments will certainly be considered and debated in the Supreme Court. However, refighting the battle in the High Court in the Supreme Court may well be a losing strategy. This case is going to be a landmark decision whichever way it is decided and the Supreme Court has the ability to develop the law in a way that is simply not open to the High Court. The Supreme Court is likely to want to express its decision on the basis of a general principle. The two sides would each do well to consider what general principle they want established.
The claimants have been working hard on this front from the outset. Their argument is based around establishing the primacy of Parliamentary sovereignty, ensuring that so far as possible control of our exit from the EU is fully argued through our elected representatives. Lawyers instinctively like constitutional checks and balances and the courts rightly consider themselves part of those checks and balances. The Royal prerogative (Britain’s primary source of executive authority) has been shrinking for centuries through the effectiveness of such appeals. The High Court was prepared to look at the substance of the effect of triggering Article 50 and decided that this needed to be controlled by Parliament.
The Supreme Court judges will have seen that the government did not defend the independence of the judiciary. Quite apart from the only-human reaction to close ranks, the judges will have had impressed on them again the importance of the checks and balances in the system. If the executive does not recognise sufficiently the need to protect an independent judiciary, the judiciary will be far more inclined to ensure that other checks and balances on the executive’s power are adequate. The government’s studied refusal to put the Mail and the Telegraph in their place may well ultimately prove to be an own goal.
Indeed, just losing in the Supreme Court is not the worst possible outcome for the government. Mindful of the press reaction to the High Court decision, the Supreme Court might (and should) provide a judgment that is a crisp concise explanation of its decision that can be readily understood by non-lawyers. Such an explanation is unlikely to be closely confined. The Royal prerogative may come out of this case much more curtailed than at present. From the viewpoint of the executive, this would be a disaster on a different scale from having to get a vote on Article 50 through both Houses of Parliament. With this in mind, it is hard to know what the government is playing at.
In the arguments in the High Court, the government accepted that a notice under Article 50 is irrevocable. One route out of the problem for the government would be to withdraw this concession and to argue the opposite. If a notice under Article 50 can be rescinded, Parliament would then get its say before Britain left the EU, solving the problem that citizens’ rights could be irrevocably altered without a vote in Parliament.
This change of tack has been floated. There are three problems with it though: one legal and two political. First, a notice under Article 50 might very well be irrevocable. Secondly and still more importantly, the final arbiter of this point would potentially be the CJEU – and the idea of a European Court being the ultimate arbiter of how Britain chose to leave the EU would be incendiary. Thirdly, even if the government were successful on the basis of this argument, it raises the prospect that Britain’s final decision to leave the EU could be years away (possibly after an intervening general election).
So the government has some tough choices in handling this appeal. The only firm conclusion I draw, given the risks that it is running by continuing with the appeal, is that the government is desperate to avoid letting Parliament control the triggering of Article 50. Given that it currently seems to have a substantial majority in both Houses in its favour on this point, the unanswered question is why? Answers on a postcard.