4 November, 2016

Crisis? What crisis? Reflections on the High Court’s Brexit judgment

Ampersand advocate Paul Reid writes:

If the government appeal (as they have said they will do) and they are granted permission to do so (which must be inevitable: when did a case last raise a point of general public importance of such significance?), then the Supreme Court will soon rule on the question that the High Court yesterday offered an answer to.  Once that happens, today’s judgment is likely to fade into the annals of history.  For now, however, it is worth spending some time reflecting upon it.  As a constitutional lawyer, it is a goldmine.  But for the 99.9% of the population that are not constitutional lawyers, it is a critical step in working through the consequences of the decision we as a nation took on 23 June 2016.

The Issue
If giving notice under Art.50 will inevitably result in rights conferred by Parliament being removed, does the Crown (that is, the government) have the authority to bring about that result?  That question is underpinned by two prior issues: is giving notice under Art.50 irrevocable (the parties agreed it was: para.10) and does leaving the EU inevitably result in a loss of rights conferred by Parliament (the Government conceded it did: para.63).  Once that was established, the proposition that it was for Parliament, and not the Government, to sanction the giving of notice under Art.50 follows fairly readily.  The proposition that the Crown cannot remove rights conferred by Parliament is vouched for by over 400 years of authority, a civil war and the head of King (paras.24-29).  The government argued that because the making and breaking of international treaties was a matter that fell within the Crown’s prerogative powers, it did not need prior parliamentary approval.  But as the High Court explained (at para.89) it was precisely because acts on the international level can have no direct effect in domestic law that they were left to the government.  It is a “powerful constitutional principle” (para.86) that the Crown has no power to alter the law of the land by prerogative power and thus has no power to act on the international level in such a way that would necessarily have that effect.  To that extent, the case was about the limits of the government’s powers, and in particular, the limit on their ability to effect a change to domestic law without the assent of Parliament.

On another level, this was a case about who was entitled to interpret the result of the referendum: Parliament or the Government?  As the High Court explained, that fell to be answered under reference to two basic constitutional principles: the sovereignty of Parliament and representative parliamentary democracy (para.106).  The first is classically understood to be the “bedrock” of the constitution; that Parliament has the power to make or unmake any law.  But it is important note what is meant by Parliament: it is not the House of Commons, but it is the Queen, the House of Lords and the House of Commons together (para.20).  That distinction (often overlooked; and often unimportant) may be significant when understanding the consequences of the decision.  The second (representative parliamentary democracy), recognises that in the UK the people elect a representative (an MP) to take decisions on their behalf.  The combined effect of those two principles result, the High Court held, in it being Parliament, not the Government, that has responsibility for interpreting the result of the referendum.  Under our parliamentary system, where the government almost invariably commands a majority in the House of Commons, with the result that the House of Commons normally approves the course the government wishes to take, the two are often confused.  But as noted above, Parliament and the House of Commons are not synonymous.  It was Parliament, in passing the 2015 Referendum Act, that called the referendum; it is for Parliament to interpret it.  And it worthy of note in passing, that this was the view of the Government in its response to the House of Lords Constitution Committee in 2010.

It follows that it is for Parliament to accept or reject the result of the referendum.  That is inherent in the nature of an “advisory” referendum.  As the constitution currently stands, sovereignty rests with Parliament, not the people.  And as was said by Lord Reid many years ago:

“It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most pop le would regard it as highly improper if Parliament did these things.  But that does not mean that it is beyond the power of Parliament to do such things.”

Those words are as true today as they were when they were penned over 60 years ago.  So whilst many people would regard it was “highly improper” for Parliament to reject the result of the referendum that does not render it “unconstitutional”.  And in more recent times, in relation to another referendum, the President of the Supreme Court said this (emphasis added):

“…while the main political parties had committed themselves to accept the result of the Referendum, a ‘yes’ vote would not of itself have triggered independence for Scotland.  If there had been a ‘yes’ vote, Scotland would not have achieved independence unless and until the UK Parliament had voted in favour, and, whatever the main political parties had promised, Members of Parliament would have been free, indeed constitutionally bound, to vote as they saw fit.”

The same is true of the EU referendum.  The real question is for those MPs that backed remain: do they choose to vote in line with their own opinion or in accordance with a referendum result they disagree with?  That opens up a fundamental question about the role of an elected representative: are they delegate of their constituents (there to give effect to their constituents’ wishes) or a trustee, entrusted by their constituents to exercise their own judgment on the issue and vote accordingly?  That is a debate which lies beyond the scope of this post but if the High Court’s decision stands, it is a question our elective representatives will have to ask themselves.

In so far as the High Court have confirmed that it is for Parliament to assess the consequences of the referendum result, that is a result that is consistent with the UK’s constitutional history, its constitutional traditions and, as currently understood, its constitutional principles.

What next?
Immediately after handing down their decision, the High Court granted a “leap frog” certificate, allowing the Government to bypass the Court of Appeal (given the composition of the High Court – the Lord Chief Justice, the Master of the Rolls and Sales LJ – the case had in effect been heard by the Court of Appeal) and apply directly to the Supreme Court for permission to appeal.  As with proceedings before the High Court, it is inevitable that, should an appeal be taken (and the Government has indicated that it will appeal), again the hearing for permission and the substantive appeal will be rolled up into one hearing.  As matters currently stand, the Supreme Court has no cases listed for 7-8 and 19-21 December so a hearing before Christmas is very likely.  There has also been speculation that the Supreme Court may sit en bloc – that is, all 11 Justices hear the case.  Never have the Supreme Court Justices (nor the Law Lords before them) all sat together to hear a case (although on a few occasions in the last decade important cases have been heard by a panel of nine)

Beyond that is speculation.  But there are a few points that are worth considering.  Before the High Court it was a matter of agreement that notice under Art.50 was irrevocable (para.10).  That was significant because it meant that certain rights were inevitably lost as a consequence of the notice being served (para.63).  If that concession is withdrawn, or it is not accepted by the Supreme Court, that opens up the correct interpretation of Art.50.  That, being a provision of the EU treaties, is ultimately a matter of EU law.  If the correct interpretation is not clear, then, as a matter of EU law, the Supreme Court (as a court from which there is no appeal) would be required to refer the question to Court of Justice in Luxembourg.  In the present political climate, that is a result one would expect all involved to be striving to avoid.

If the outcome stands, Parliament will need to sanction the giving of the Art.50 notice.  Although the High Court is not explicit on the point, that probably involves the passing of an Act of Parliament.  That was the claimants’ primary contention and it is consistent with the court having made plain that when it talked of Parliament it did so in the formal sense: the Queen, the House of Lords and the House of Commons.  If that is correct, there are a number of votes ahead, in both Chambers, that the government have to survive.  Passing an Act also raises with it the Sewel Convention.  That is understood to apply not only to legislating on areas that are devolved but also on changes to the devolution settlement.  On that understanding of matters, the devolved legislatures may be asked to pass legislative consent motions.  So far as Scotland is concerned at least, it seems inconceivable that the Scottish Parliament would pass such a motion.  That does not prevent the UK Parliament from legislating, but adds another dimension to the politics of the issue.

Could this lead to an early general election?  A decade ago the answer would have been “quite possibly”.  Now matters are complicated by the Fixed-Term Parliaments Act 2011, the result of which is a general election can only be called before the due date where two-third’s of the House of Commons resolve that an election be called or a motion of no confidence is passed in the government and no new government formed (and approved by the House of Commons) within 14 days.  Unless Labour support a motion (they have more than one-third of MPs) for an early election it could only be called if the government lost a no-confidence motion and with a current parliamentary majority of 12 that will not happen (unless the government were to vote against itself which would certainly run against the spirit of the 2011 Act).  So, as matters stand, a general election would be unlikely.  Of course, if one were to be called, and the government lost, and a party advocating “remain” (in the sense of staying within the single market, for example) were to win, what happens then is quite literally anyone’s guess!

But stepping back and taking a broader view, the case exposes some fundamental issues with the current constitutional settlement in the UK.  What is the status of a referendum result?  Should it bind Parliament?  Should the UK move away from a traditional and, until the last few years, purely representative form of democracy?  What are the fundamental principles of the UK constitution?  The High Court listed some (parliamentary sovereignty; the rule of law; the principle of legality featured heavily; representative parliamentary democracy).  Is that list comprehensive?  Is it accepted?  The reaction to the judgment makes it clear that there is not a common consensus on these issues.  A hitherto largely political constitution continues to become more “legal” with the consequence that the courts are increasingly being asked rule on topics of acute political controversy.  When the UK will have the time and breathing space to pause, take stock, and have a sensible and informed discussion about exactly what kind of constitutional settlement it wishes to have is not clear.  But once the initial fallout from the judgment has passed, and the narrow yet extremely important issue before the court has been resolved, what this case tells us about the state of our constitution and the state of our country ought to be a source of significant concern that requires to be addressed sooner rather than later.

And finally…
Lastly, a comment on the role of the court.  Unsurprisingly, the High Court has been criticised for wading into a battle that, its critics say, was nothing to do with the court.  That argument is an entirely unfair characterisation of what the court has done (not least because all parties agreed the case raised a question of law for the court to resolve: para.5).  Far from threatening democracy, the judgment (not the result, the judgment) is a vindication of democracy: a small group of private citizens went to the High Court to complain that what the government proposed to do was unlawful; the court heard their case; they heard the government explain why they believed it to be lawful; and the court decided that those individuals were correct.  That does not threaten democracy; it secures it.  Complaints about the outcome are understandable (and that there are complaints is why there is the Supreme Court).  But complaints that the process is somehow undemocratic are not only unfounded; they are the true threat to a democracy governed by the rule of law.  What the High Court has made clear is that no matter how high an office you hold, you are always below the law.  That is not a result to be decried; it is a result to be celebrated.

The full text of the judgment is available at: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

A summary is available at: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf


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