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  1. Wealth
January 24, 2017

Court in the act

By William Cash

Theresa May’s government will be secretly pleased by the Supreme Court’s ruling on Article 50, writes William Cash

Although the Attorney General Jeremy Wright said he was ‘disappointed’ by the Government losing the Article 50 ruling (by 8-3) in the Supreme Court, the truth is that Theresa May and most Leave MPs will be secretly relieved by the result.

It could have been a lot worse.

Importantly, the Supreme Court has not taken a view on the type of legislation (for instance, a short bill) that will now be drafted in order to trigger Article 50 by Act of Parliament.

The critical cliff-hanger – which would have resulted in a devolutionary constitutional crisis – was saved until the very end of Lord Neuberger’s brief summary when he dismissed the representations of the Scottish, Welsh and Northern Irish devolved parliaments, who claimed that they should be consulted. This idea was dismissed universally by all judges who abided by what is known as the Sewell Convention, which essentially means that the UK government is supreme over matters relating to the UK (including Scotland, Northern Ireland and Wales).

The government knew it would lose. Tory and Labour MPs will not regard the ruling as a reason for constitutional despair. Far from it. Privately, they admit that it is much better to have legal clarity now than when the government is mid-negotiation. This conformation of ‘clarity’ is indeed exactly what Mishcon de Reya’s Jeremy Libson, lawyer for Gina Miller (a member of the Spear’s 500) said outside the Supreme Court. ‘Part of doing a good job with Brexit is providing constitutional certainty,’ said Libson.

Spear’s contributor and honorary QC Joshua Rozenberg said afterwards that the critical paragraph of the ruling (121) is that no special type of legislation is required. In many ways, the ruling is just another embarrassment for the Cameron government as it shows how poor the drafting was of both the 2015 Referendum Bill and the Article 50 clause itself.

Labour has already confirmed that they will try to hold up the short bill with amendments. It will be hoped that the government’s constitutional lawyers do some better drafting this time. It is expected that the Article 50 Bill will be one clause only and will be barnacled with amendments from all parties – SNP have already said they will table 50 amendments.

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The real relief within Downing Street is that the ruling has avoided the worst case scenario as suggested by Supreme Court justice Baroness Hale when she spoke out about Article 50 when travelling in the Far East after the high court ruling in October. This would have been a ruling that a full and detailed Act of Parliament, which would repeal all EU law since 1972 before Article 50 was triggered. Only this, she suggested, may protect the human rights of the British people.

This suggestion caused outcry from right leaning commentators, as not only would it turn the democratic vote of Parliament to pass the European Referendum Act of 2015 (passed by both houses) on its head but such a notion was not even presented in the original High Court ruling. In other words, and as some Tory MPs have angrily noted, Lady Hale has offered interpretations that were not even asked for.

Baroness Hale said: ‘The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the
government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.’

Had such a ruling been made serious questions would have ben raised about the independence and political impartiality of the Supreme Court. Judge Neuberger made it clear that the ruling had nothing to do with politics or the decision of the people to vote for Brexit.

There were meant to be twelve judges sitting but there is currently a vacancy following retirements. In the US Supreme Court (where there is also a vacancy) appointments are heavily politicised as opposed to the UK where they are theoretically made on a politically neutral basis to ensure the non-partiality of the judiciary.

Should the Supreme Court have been perceived as wildly over-stepping the mark politically, the executive may have considered ways of curbing certain Supreme Court powers; or at least re-examining the appointments process which is meant to be entirely independent and non-partial.

This now seems unlikely as the Supreme Court has made a ruling that Downing Street and many Brexiteer MPs may not like – refusing to acknowledge the power of the Royal Prerogative – but will at least be able to respect.

The Lord Chancellor Elizabeth Truss (criticised for not supporting the judges after the high court ruling) has quickly said that she respects the decision and the independence of the judiciary and the Supreme Court decision. So on that front, the Supreme Court has emerged intact as the guardian of the constitution. Now it is over to parliament and MPs to get on with Brexit.

What the judiciary cannot change is the principle – as set out in 1885 by AV Dicey in his Law of the Constitution (which all eleven Supreme Court judges will have read before qualifying) that,  ‘In theory Parliament has total power.  It is sovereign’. The sovereignty of Parliament – and the will of the people – will be proven when the brief Bill authorising Article 50 sails through Parliament, albeit over some choppy waters. Any attempt by Labour or Lib Dems in the Lords to disrupt this Bill would be an act of political suicide. Expect Article 50 to be triggered by the end of March.

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