The High Court judgment: keep calm and carry on…

untitledThe High Court judgment in the Miller case, that notification under Article 50 of the TEU of the UK’s intention to leave the EU cannot be given under the royal prerogative, has attracted intense comment, some of it vituperative and directed at those who gave the judgment rather than the judgment itself.  As I have already tweeted, if you believe (as I do) that the judgment is flawed, you should identify the flaws – not attack the judges.  We are fortunate in the quality of our judiciary and the judges who gave the judgment are rightly among the most eminent.

I am not sure I shall add much to existing commentaries on the case, but here – for what they are worth – are my observations:

This situation could have been avoided.  The fact that the case has arisen is in many respects the consequence of the rush to hold a referendum and not giving adequate thought to possible consequences.  Debate on the EU Referendum Bill focused on issues such as the franchise and the period of official purdah.  I have made the point before that in my Second Reading speech in the Lords, I raised the issue of thresholds.  I also raised the point that it was an advisory referendum.  The minister replying seemed to think that referendums were necessarily advisory, even though I made mention of the fact that Parliament had provided that the 2011 referendum on AV was binding.  Ministers made clear that the Government was committed to implementing the outcome of the EU referendum, whatever it was – there was a manifesto commitment – but made no move to provide in the Bill that if there was a ‘leave’ vote, then notification under Article 50 would be given.  Had such a provision been included, there would have been no court case.

Many speeches in the debate on the Bill, not least in the Lords, focused more on the merits of staying in or leaving the EU rather than on the provisions of the Bill.  As I have pointed out before, institutions and processes are not neutral in their effect, and the Miller case was the consequence of the particular process stipulated by Parliament.  The Bill was as important for its silences as for its particular provisions.

It is about means and not ends.  To go by some media coverage, one would think the High Court had ruled on the merits of EU membership or said that Brexit cannot go ahead.  As it made clear, it was purely concerned with a matter of law.  The issue was not about the merits of leaving the EU, but the means by which that was to be achieved.  The court held that notification could not be given under prerogative powers.  The referendum provided a majority for leaving the EU and Parliament is unlikely to go against that outcome.  (That’s my observation, not the court’s.)  The court quoted Dicey on parliamentary sovereignty, but as Dicey observed, ‘we may assert that the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country’.  (Adding, ‘But this a political, not a legal fact.’)  Furthermore, the case is to be appealed to the Supreme Court.  We need therefore to await the outcome of that appeal.  In short, the media response is totally over the top, as hysterical as it is ill-informed.

The judgment is flawed.  I believe the reasoning of the court is mistaken and is in several respects.  The court proceeded on the basis – accepted by the parties to the case – that notification under Article 50 is irrevocable.  There is nothing in Article 50 to this effect and Paul Craig has argued that the natural textual meaning of Article 50(3) is that a state could decide to change its mind and withdraw from the exit negotiation.  The judgment also accepts the argument that rights created for citizens cannot be taken away by prerogative powers.  As the European Communities Act 1972 created rights, these cannot be removed other than by Parliament.  As Adam Tomkins has noted, this is a judge-based doctrine that did not exist at the time of the 1972 Act.  Furthermore, and this is the core point, the rights, as John Finnis has argued, are treaty-based UK rights and not ‘statutory rights enacted by Parliament’.  Rights created under EU law as it stands ‘from time to time’ can be modified or even removed by the EU, entailing no restraint or authorisation by Parliament.

Even if one disagrees with Professor Finnis’ argument, it is one that needs to be addressed.  The court does not really engage with the Finnis argument, but rather proceeds by accepting that EU law rights are rights enacted Parliament.  (Read in the light of Finnis’ argument, much of the discussion of rights in the judgment loses its force, and as Carl Gardner has argued, the body of rights involved is not as extensive as the court argues.)  The court instead proceeds on the basis of a judicially identified category of statute – ‘a constitutional statute’ – and, having drawn on this concept then concludes that Parliament in 1972 intended that the European Communities Act should be such a statute.  It then goes on, at paragraph 82, to assert: ‘Statutory interpretation, particularly of a constitutional statute which the ECA is for the reasons given at paragraph 43-44, must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislation by legislating in the terms that it did’.  In effect, perceived intent is being built on perceived intent.  We thus have a constitutional statute, background constitutional principles, with those principles to inform the inferences to be de drawn as to what Parliament intended.

The High Court in ex p. Rees-Mogg in 1994 held that ‘When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the [Parliamentary Elections] Act of 1978.’  The court in Miller argues that this did not provide guidance in the present case as in that case the court did not have to consider whether the Crown’s prerogative powers had been unaffected by the ECA and the present case deals with withdrawal from the relevant EU treaties.  Having decided that the case was not relevant, in then goes on to say that ‘we consider that it is clear’ that Parliament in 1972 intended to legislate so as to introduce EU law into domestic law in such a way that could not be undone by the exercise of Crown prerogative power (para. 92).  It is clear to the court because of the reasoning it has adopted.  That reasoning, though, is in my view, as I have indicated, built on contestable foundations and rather stretched reasoning.  There is solid ground for stating that Parliament intended to legislate so as to give effect to EU law, created under the treaties from time to time, into domestic law, but it does not follow that it intended to do so in such a way that could not be undone by the exercise of the Crown prerogative.

The court was unanimous and robust in expressing its judgment.  However, the judgment is, in my view, for the reasons summarised above, open to challenge.  In saying that, I am not going beyond what some distinguished legal scholars have said (not least in the collection of comments in the Policy  Exchange’s Judicial Power Project collection), but simply adding my voice in support of their arguments.

About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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36 Responses to The High Court judgment: keep calm and carry on…

  1. Andrew Turvey says:

    If an Article 50 notice may be revocable, and this question is found to be central to the ruling of the Supreme Court, do you think they would refer it to the ECJ?

    Politically this would be, ahem, “interesting”, but the argument seems logical.

    • Croft says:

      I believe the government suspects it is reversible (the ECJ is a political court which will tends to find the law means whatever the European project needs it to be found so.) The government probably had a good chance of winning the case at that point alone – since Art 50 wouldn’t certainly affect any rights – partly the NI court case was dismissed upon that assumption.

      However the government making that argument would help remainers at home and probably see the matter sent to the ECj which would take months – something they were clearly desperate to avoid.

  2. Lord Norton,
    I must say that I think the court’s opinion is rather well reasoned.
    In the appeal the government could assert ( if convention allows):
    1.The court is influenced properly by the arc of Anglo-Britsh jurisprudence toward unity and consolidated sovereignty. That’s reasonable but all such arcs may be fatal to the society in which they occur if never subject to check. Perhaps even the arc from 1066 to the current date ought not be beyond question.
    2 Sovereignty has migrated over time between constituent nations and the Union, between Crown, Parliament and Government in ways sometimes disguised by language upon which the court relies.
    3.Those injuries sustained in an action which restores powers Parliament could not lawfully alienate or asserted as rights in equity but do not affect the legality of reasserted sovereignty.
    4. The secession of the the Anglican Communion was never dealt with as such but nonetheless was a secession from the Roman Communion and it gives pervasive precedent to the right of Crown and Parliament to secede from deeply embedded institutional Union.
    5. Real wrong in equity and offense in international law are burdens the reclaimed sovereignty of the Crown and Parliament rush forward to assume liability for and that liability confirms rather than diminishes the validity of their will.

    Or not of course….

  3. Croft says:

    LN, As before I agree with almost everything you/Tomkins say.

    I slightly disagree on the argument on parliament and a binding referendum. Yes it would have avoided this, but I do think parliament was entitled to believe the long-standing constitutional position with regard to prerogative and treaties would not but interfered with. I’m believe the same court hearing this case a generation back would have seen things a parliament intended. I think we agree that in recent years the court has used a series of its own decisions to move the law. Its hard not to see an irony in the court finding against the government for not following the ‘intent’ of parliament and demanding parliament makes the decision when the court has moved the goalposts without parliament legislating to clearly change Prerogative powers!

    I agree reading the transcript of the hearing its difficult to accept their reasoning – they clearly seem to be applying recent judge made ‘law’ then backfilling that that must have been the intent of parliament – when clearly it can’t. (Was I the only person who thought we could almost have done with an amicus curiae brief for the court from past or present clerks of the parliaments explaining some of the mechanics of Acts as the case really seemed not to engage with that.)

    I tend to think the appeal will fail now though. The direction of the travel of the courts in recent years seems hostile to the prerogative. Its would take the SC accepting considerable reversal of their direction of travel to reverse the decision.

  4. Croft says:

    Just a few other thoughts:

    The government would have done better to hire a top QC(s) who specialise in this area of law – the maxim about cases being decided by who has the better lawyer stands.

    I bridle every time I hear something to the effect that the courts are ‘just applying the law’. The courts version of the law is as the particular judges and their beliefs see it. Which is not the same thing at all.

    Yes the press coverage is a bit silly but so are the attacks on the press.

  5. maude elwes says:

    From the point of view of the citizen, Parliament passed its sovereignty to the electorate to judge and decide. It cannot now retract that commitment. Which is what it is, underhandedly, trying to do.

    The Judiciary has no right or power to overturn the direct voice of the people as directed by a referendum. A Referendum supersedes the Judiciary, Parliamentary Parties and Members of Parliament. It is not advisory unless it was stated on the ballot paper at the time of election. Although Judges may very well be eminent and learned in their adjudication, in this matter they are biased against the will and decision of the electorate. Which has to be taken into account, no matter they deny this bias. Their collective decision proves it goes counter to the human condition to ignore such beliefs. It is nonsense to suggest otherwise. And it is nonsense to suggest the question suggested anything other than what it asked. In or Out.

    http://www.thecommentator.com/article/6425/analysis_why_high_court_got_brexit_decision_wrong

    Invoking Article 50 was inordinately delayed in order to reverse the peoples vote. Had it been instigated, as David Cameron swore it would be, the next morning, none of this invasion into our civil rights would have been challenged.

    • maude elwes says:

      Here is another confirmation on the voice of the people being paramount.

      Unless all those in Parliament under false pretences want to find themselves deselected and facing another general election.

      http://www.lawyersforbritain.org/referendum-binding.shtml

      • Hugo Miller says:

        I didn’t say anything about taking our noses out of the ‘directives on the law’, whatever they may be. We have had Dicey quoted at us, we have debated whether ‘constituional statutes’ are real or imagined, we have heard of ‘background’ something-or other. There is much considered legal debate about this ruling by people far more learned in the law than I, which I have found most informative.
        All this is very British, and highlights the discrepancy between our way of doing things (according to the law) and the EU’s way of doing things (ignoring the law when politically inconvenient). This has been the source of much friction between Britain and the EU from day one. We keep to the rules, while our European ‘partners’ ignore them at their pleasure.
        The European Court of Justice, as somebody has pointed out, is an overtly political court charged with furthering the cause of European integration. That is why they call it a court of ‘justice’. That’s how the EU works.
        We, being British, are determing this issue according to the law, and the law creating the Referendum clearly does not compel the government to do anything at all within a specified time frame.
        And yes, I am indeed saying that the government ‘deliberately misled the nation’ when they called the referendum. Mr Cameron was bounced into the referendum by Nigel Farage. It wasn’t supposed to end like this.
        I have been involved in this game for twenty five years, and right from the outset it was apparent to me that we will never be permitted to leave the EU. Not unless we are prepared to fight our way out.

    • Hugo Miller says:

      “A Referendum supersedes the Judiciary, Parliamentary Parties and Members of Parliament. It is not advisory unless it was stated on the ballot paper at the time of election.”
      That is a political observation, not a legal one. I was pointing out a long time before the referendum that it was meaningless as it did not commit the government to do anything at all. It should have included a mandate that the government invoke Article 50 (or repeal the 1972 ECA, or nuke Brussels, whatever was its fancy) within a specified time frame.
      As things stand, the government can simply say “We respect the referendum result, and we’re working on it”, and leave it at that. They can drag that on for years – certainly until the next election.
      In fact that is pretty much where we are now.
      Just taking our noses out of the law books for a moment and looking at the ‘big picture’, it is curious that every one of the numerous court cases challenging various aspects of our EU membership has failed, yet the first one challenging withdrawal from the EU succeeds. If a Martian landed here and studied the history of these things, he might find that odd.
      There is also the issue that every single referendum held on EU matters has resulted in a reversal for the EU, and every single one has been re-run in order to get the correct result (Denmark with Maastricht, Ireland with Nice, France and the Netherlands with the Constitution – which was ignored, not re-run – Ireland again with Lisbon).
      If our referendum is to be implemented, it will be the first time in the history of the EU that such a thing has happened.
      Finally, thank you Lord Norton for expressing your arguments in such clear language.

      • maude elwes says:

        @ Hugo Miller

        If, as you suggest, we take our noses out of the directives on the law, what you are saying is, the government deliberately misled the nation when it offered a referendum on this matter. That in fact, they felt Government had taken no vow to do what the public felt was in their interests when they duped them. In other words, as under T. Blair, they lied to ‘we the people’ in order to play political games with tax payers money. How much did that Referendum cost the people? How many food banks would that have stocked?

        That does not sit right in the circumstances. Government knew when it gave out its information on the matter that what they were offering was a straight forward In/Out option. Lord Norton put it in a blog thread on here prior to the event. And we all know it. What they misjudged was the size of the vote against staying part of the EU. They miscalculated the will of the people and now have to pretend it is a matter of legality. When it is not. It was and is a matter for Government.

        The people do not elect their judges in this country. And the reason for that is, they are not and should not be, able to interfere with government process. Not unless or before they have stood for election by the people to do so.

        If such a vote took place, the Supreme Court today would find it did not have a ‘Tony Blair’ backed stance on matters, as, the political parties would all be represented on that bench. As they are in the States.

  6. Croft says:

    Off topic but I ran across this:

    http://fivethirtyeight.com/features/trust-us-politicians-keep-most-of-their-promises/

    The data its sourced from is paywalled but i’ve not seem multiple countries compared before..

  7. Croft says:

    LN, Any chance you might comment on what an Article 50 bill might look like. Much talk of an unamendable bill. I’ve had a few tries – i think i have a reasonable understanding of bill formats – but I can’t construct any language that’s unamendible. Can you?

  8. maude elwes says:

    News has it that Supreme Court Judge Hale has made a speech, off shore, telling her expectant audience the decision against Brexit has already been taken behind closed doors. And that, we are told, denies the voters their decision to leave the EU.

    Trust an old crone who has too much power for our good health to blow the whistle so that she can preen in old age. Something really has to be done about big mouths in high places thinking that they have more sway than those who vote. Unelected simpletons have to be removed.

    This news article only tells half the story. The rest will out soon.

    http://www.dailymail.co.uk/news/article-3938760/Top-judge-warns-ministers-forced-spend-MONTHS-overhauling-EU-laws-trigger-Brexit-talks-not-just-pass-simple-bill-handing-PM-power-timing.html

  9. maude elwes says:

    This is as I understand it, from various sources of historical view, on our Parliament and our constitution. No court is needed as the rights of ‘we the people’ stand fast.

    The answer to this is really quite simple. In accordance with the British Constitution (defined by Oliver Cromwell) Parliament exists to serve the people of this country. The same applies to the House of Lords. The British legal system exists purely to serve the British Constitution and the legal system prides themselves on stating that this democratic country has a legal and policing system which only exists by ‘consent’ of the people. These key issues prevent us from becoming a police state with a dictatorship. (Although in recent years, as we know, these authorities have been much abused). In this case, MPs have no choice on any proposed vote on article 50. They must follow the ‘democratic’ and ‘stated’ will of the people, as declared in the referendum result. If they do not, they are identical to the politicians that Cromwell threw out of parliament for putting self interest before the will of the nation. MPs have no say, they are overruled by the will of the people.

  10. Sean Gabb says:

    Reblogged this on The Libertarian Alliance Blog and commented:
    About Lord Norton
    Professor of Government at Hull University, and Member of the House of Lords

    • maude elwes says:

      @ Sean Gabb

      This link is the actual wording of the Government leaflet sent to each and every home in the UK. If you scroll down you will see it clearly states, unequivocally, ‘This is your decision. The government will implement what you decide.’

      ‘A once in a generation decision’

      The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union.

      The government believes it is in the best interests of the UK to remain in the EU.

      This is the way to protect jobs, provide security, and strengthen the UK’s economy for every family in this country – a clear path into the future, in contrast to the uncertainty of leaving.

      ””This is your decision. The government will implement what you decide.”’

      If you’re aged 18 or over by 23 June and are entitled to vote, this is your chance to decide. Registration ends on 7 June. Find out how to register at aboutmyvote.co.uk and register online at gov.uk/register-to-vote.

      If you would like to know more about any of the information in this leaflet, go to: EUreferendum.gov.uk.

      The full text is here.

      http://webarchive.nationalarchives.gov.uk/20160815143715/https://www.gov.uk/government/publications/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk

      Any other slant put to the public in this matter is blatant obfuscation. A cloaking of the truth. And for any court to back up such a lie leaves them open to not only thorough disrepute but a loss of faith by ‘we the people’ as to the rightful power of justice. A very serious mistake by State.

      • Sean Gabb says:

        It’s a political mistake to fob us off with less than we voted for. But the duty of the courts is to follow the law. A government leaflet is not admissible in cases of this sort.

      • Croft says:

        “But the duty of the courts is to follow the law.”

        All perfectly true. But to stretch Stalin’s analogy on voting – The people who pass the laws decide nothing. The people who interpret the laws decide everything.

      • “This is your decision. The government will implement what you decide.”

        I think you’ve missed the point. The government here was making a _political_ commitment. This is not the same as a legal commitment and did not purport to make any statement about the legal or constitutional process.

        They can fulfill the political commitment by introducing an act of parliament to authorise article 50, just as well as by using their powers of royal prerogative.

  11. maude elwes says:

    @ Sean Gabb

    What you are suggesting and seemingly supporting is, ‘judicial overreach.’

    In a matter such as this the judiciary would be exceeding the limits of its power.

    • Croft says:

      “In a matter such as this the judiciary would be exceeding the limits of its power.”

      Any challenge to the limits of the power of the judiciary would be decided by the judiciary. Quis custodiet ipsos custodes. Nemo judex in causa sua.

      Square that circle……

      • Hugo Miller says:

        How would that actually work? If I wanted to make a complaint of judicial over-reach, to whom would I complain, and how would it be resolved?

      • maude elwes says:

        @ Croft

        In such a situation as important as this, surely these Supreme Court Judges must exclude themselves from adjudication in this matter. For, they are taking a position of ‘judge in their own cause.’

        I took this paragraph from a Lord Denning article.

        ”That conference of very senior national and international judges was in reality a nest of activists ruthlessly determined not merely to disregard but openly to flout the two principles of natural justice recognized in the laws of England and Wales: that none should be the judge in his own cause (nemo sit iudex in causa sua), and that both sides should be fairly heard (audiatur et altera pars).”

      • Croft says:

        Hugo: that was of course my point. There is no appeal but to other judges

      • Hugo Miller says:

        yes but who would I go to in order to lodge a complaint? Lord chancellor?

      • “There is no appeal but to other judges”

        That is simply untrue. Judges only ever interpret the law that is laid down. If you think the interpretation is wrong, then one easy way to respond is to change the law – ie pass an act of parliament.

        This is entirely why we are having this discussion. The European Union Referendum Act 2015 could have explicitly stated that following a Leave vote the government was empowered to submit an Article 50 notification. Parliamentarians chose not to include this wording.

      • Hugo Miller says:

        “The European Union Referendum Act 2015 could have explicitly stated that following a Leave vote the government was empowered to submit an Article 50 notification. Parliamentarians chose not to include this wording.”
        I don’t think they ‘chose’ not to include it – it just never entered their pretty little heads that the occasion might arise!

      • Croft says:

        (sighs) ‘Changing’ the law is not a form of appeal as ought to have been self-evident. Nor is as much of this whole argument premised upon clear that the judiciary haven’t been the ones changing the law without parliament wishing such a change.

  12. maude elwes says:

    @ Hugo Miller:

    This link may answer your question.

    https://www.supremecourt.uk/about/judicial-conduct-and-complaints.html

    • maude elwes says:

      I came across this today. It may be of interest to those who seriously want out of the EU.

      http://www.theway.co.uk/news-10386-we-dont-need-to-trigger-article-50—we-can-just-leave-the-eu

      • Hugo Miller says:

        I wholeheartedly agree with every word in this article. I have always said that we should leave on our terms, not accept the supremacy of the EU to dictate the terms of our departure. There are two problems, however; – one is that everybody who will be involved in the negotiations, either on ‘our’ side or ‘theirs’, wants to keep us in the EU. Maybe one or two are ‘Brexiteers’, but the entire political establishment is Pro. The second is that such a course of action will put us on a collision course with the ECJ. I have said many times before that, whichever way you cut it, we will end up in a collision with the ECJ – they will say “That is illegal – you can’t do that”, and we will say “Sorry, but we no longer recognise your authority over us”.
        It should be borne in mind that if we do declare UDI without following the EU’s prescribed procedure, we shall be putting ourselves in breach of our Treaty obligations. The EU will be legally in the right if it were to send tanks through the Tunnel in order to bring us back into line. Not that I think they will resort to such un-subtle means, of course. But the fact remains that our actions could well have a lot less legality than did those of South Carolina in 1861. In fact, S. Carolina was acting perfectly lawfully, but it didn’t work out too well for them. General Washington, on the other hand, was committing Treason and he knew it, but he prevailed because he was prepared to support his actions with military force.
        That really is the bottom line.

  13. Pingback: Why wasn’t the referendum binding? | The Norton View

  14. Pingback: 'The final decision': or was it? - A Door to FreedomA Door to Freedom

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