The Article 50 Battle Royale is just a legal red herring, writes lawyer Richard Charteris.
When all eleven judges of the Supreme Court meet on December 5th to hear the government’s case that the High Court ruling on Article 50 should be overturned, it will be making one of the most important closely watched constitutional rulings of modern times.
Which way will the judges go? With the Royal Prerogative (i.e Theresa May’s Tory government, representing the will of the people) or Gina Miller – backed by legal expertise from Mishcon de Reya and represented by one of the top human rights and public policy barristers in the land ? Namely David Pannick QC, a cross-bencher in the Lords, fellow of All Souls since 1979 and the co-author with Lord Lester of Herne Hill QC of Human Rights Law and Practice. The latter QC is no stranger to ‘disruption’ politics. A former special adviser to Roy Jenkins at the Home Office in the 1970s, he defected with Jenkins from the Labour Party to be a founding member of the SDP in 1981.
So the Supreme Court ruling will not only be a constitutional showdown. It will be a political and ideological Battle Royale with far reaching legal and political fall-out. When Gina Miller and others took the government to the High Court over the process for sending a notification under Article 50 of the Treaty on European Union (as amended by the Treaty of Lisbon), their motivation was to sabotage the UK’s exit from the EU.
Yet their Article 50 action may (according to some senior MPs) in fact help safeguard it. As Miller said to Nigel Farage on the Andrew Marr Show on 6th November: ‘You should actually be my biggest fan, because I have just created legal certainty.’
Indeed, many government ministers and senior Brexiteers will privately admit that whatever the outcome, legal certainty – in early January when the ruling is expected – is much better to have now, rather than to have had the Miller Article 50 action brought when the government had begun negotiations with the EU.
Had this case been brought after the invocation of Article 50, things would have gotten even more complicated. The Lord Chief Justice, the Master of the Rolls and Lord Justice Sales interpreted the Law in the only way they thought it could be interpreted when they ruled that the Crown (Government) could not use its prerogative powers to invoke Article 50. Parliamentary sovereignty - according to A. V Dicey in 1885 - is the bedrock of our constitution, and the referendum was only advisory. It could be argued that given the majority vote of the people, the judgment was questionable, but to many more progressive legal minds the question appeared clear-cut.
Thus do not expect any surprises when the Supreme Court deliver their verdict. I do not expect the Supreme Court to overturn the High Court ruling. The reason, however, that this is not a cause for constitutional despair is set out in what Dicey said about sovereignty in his seminal 1885 work, Introduction to the Study of the Law of the Constitution, which all eleven Supreme Court judges will have read closely (if my own legal training is anything to go by). According to Dicey, 'In theory Parliament has total power. It is sovereign'. Dicey's well regarded established principles of parliamentary sovereignty can be summarised by four factors according to legal books: Parliament is competent to pass laws on any subject; Parliament's laws can regulate the activities of anyone, anywhere; Parliament cannot bind its successors as to the content, manner and form of subsequent legislation; and laws passed by Parliament cannot be challenged by the courts.
Since we joined the EU, however, following the European Communities Act of 1972 legislated - later entrenched via various treaties - for the 'supremacy' of EU law over UK law.
As a result, 'directly applicable EU law' now has primacy in the UK over national law. An often quoted example is the Factortame Case (1990) where the European Court of Justice held that English courts could not apply the Merchant Shipping Act 1988, designed to protect British fishermen, because it contravened the Treaty of Rome 1957.
Yet this Supreme Court legal row over Article 50 is really just a red herring. All Parliament needs to do is simply repeal this 1972 ECA Act, which is exactly what Theresa May is planning to do with the Great Repeal Act. This is indeed is the foundation stone of the government's Brexit policy.
The Attorney General Jeremy Wright has been criticised by some papers for not seeing the action coming and seemingly presenting together a hastily thought out and poorly argued case that suggests the government were resigned to losing the case. Indeed many MPs – led by Oliver Letwin - say the government should not even bother to seek to take the High Court ruling to the Supreme Court and should just introduce a short Act to legitimise Article 50 (i.e create legal certainty) which will surely be rubber stamped by Parliament. Any attempt to try and vote it down in the Lords can only be described as an Upper House suicide note.
In my view, however, as a lawyer with particular interest in constitutional 'affairs' I don't have a problem with the Supreme Court making a ruling. It’s important to get our constitutional legal washing done and aired in public. I think it’s right that the highest tribunal in the land decides this question once and for all - now rather than later.
In the end, having Article 50 rubber-stamped by Parliament will be helpful to the Government's Brexit mandate. Of course the Guardian and left-wing headlines when the ruling is made may look like Brexit has crashed on the judicial rocks. Don't be fooled. The government will not lose in the Commons; for them to do so would be an almost inconceivable act of democratic terrorism against the people; and then Article 50 will be heading through the Scylla and Charybdis (Remain-heavy) of both the Commons and Lords. Backed by the good legal winds of Mother Parliament (which already mandated the triggering of Article 50 when both houses passed The Referendum Act of 2015).
Let us just hope that, if the government loses, the attorney general is not foolish enough to appeal to the Court of Justice of the European Union. Parliament will legislate for the invocation of Article 50: few MPs are unwise enough to directly defy the will of their constituents, and the House of Lords only has the power to delay the passing of legislation by one year: it will be purged if it does so on this occasion.