Tomorrow's Supreme Court ruling is about more than just triggering Article 50, writes William Cash. A legal and constitutional crisis might be on the way
With the UK judiciary due to be under intense scrutiny tomorrow, when the Supreme Court is expected to rule that Parliament must give its assent to triggering Article 50, it was interesting to see who the Sunday Telegraph promoted yesterday as being 'the most influential' twenty members of the of the UK legal profession.
Compiled by Debrett's, seemingly on the basis of the lawyers and legal eagles who have secured the most publicity (Hello! included) over the last year or so, what stood out was the imbalance of those selected on the basis of being enthusiastic, career EU and international law human rights lawyers - with Amal Clooney topping the list.
The list also includes the human rights lawyers Geoffrey Robertson QC, Helena Kennedy QC and human rights super lawyer David (Lord) Pannick QC. And of course Lord Neuberger, president of the Supreme Court, and his deputy Baroness Hale who we are expected to be hearing from tomorrow when the eleven judges deliver their decision.
This leaning towards EU human rights lawyers is relevant because David Pannick is almost certain to walk out of the Supreme Court tomorrow following the eleven judge ruling on Article 50 with an even wider smile on his face than when he flanked Spear's 500 wealth manager Gina Miller outside the High Court last year following her victory (along with her Spanish hairdresser co-plaintiff).
Yet even before Brexit, UK law is not all about human rights. Indeed, considering that Brexit will ensure that the 1972 European Communities Act will repeal all EU law and make UK law primary - including the rulings of the European Court of Justice - it is a strange 'influentials' list looking forward to 2017 that still believes that EU human rights lawyers are still the kings of the UK legal system.
Debrett's, fortunately, is not Spear's, Chambers, or the Legal 500, and is not known for its legal acumen. Bizarrely, the Secretary of State for Justice and Lord Chancellor, the Rt Hon Liz Truss is not included in the list, although she is the first female appointment as Lord Chancellor in the thousand-year history of the job.
Another glaring omission is legal commentator Joshua Rozenberg, whose career as a legal correspondent and analyst (after fifteen years as the BBC's legal expert expect to see him widely on the airwaves tomorrow) is so distinguished that he is the only journalist in the UK to have been awarded an 'honorary' QC. The only other honoris causa silks since the late 19th century have been practising lawyers or academics.
Although nobody probably cares much about the Tatler-style Debrett top 20 legal list, the make-up of the Supreme Court does matter. Created in only 2009 by Tony Blair, the Supreme Court is not only the most important court in the land but is going to become even more important once the UK exits from the EU. With several senior Supreme Court judges retiring shortly due to age, it is even more important that the make-up of the Supreme Court is indeed not in any way compromised by any political prejudice.
What legal commentators have failed to grasp is the extent to which - under the 1972 European Communities Act - not just the judiciary but our UK legal services industry has been itself been throttled by the EU statute book. As William Dartmouth MEP has noted, the EU wants to create EU commercial laws and an EU Commercial Court. This is in the name of ‘harmonisation’.
It is intended that EU laws and the EU Commercial court will be established, not in competition with national jurisdictions, but as ‘compulsory’ replacements. This is known as the Stockholm Programme. Before Brexit, it was becoming clear that the EU is as much of a threat to the UK's position in international legal services as it is to the UK's equivalent position in financial services.
The Law Society and the Bar Council, as well as leading London firms of solicitors, seem to see no threat from the EU to their position. It is high time they woke up, Dartmouth told me.
The reason, of course, that most UK law firms - especially a firm like Freshfields (or Freshfields Bruckhaus Deringer to use its full name after merging after Big Bang with two powerful German and Austrian firms) have clear vested commercial interests in Europe, the EU and promoting a creed which is 'no nation', pro-globalisation, free movement of people and low corporate tax. Freshfields, for example, have been advising the Volkswagen Group on the settlement reached with the U.S. government relating to diesel emission criminal charges).
To be a mere law firm today is not a grand enough global ambition. What many top tier UK law firms aspire to today is an ‘international’ law firm with offices around the world. You are unlikely to have built up an ‘international’ reputation unless you have close ties to the EU legal machine.
Law firms are now becoming like management consultancies - hybrids, lobby firms and intelligence networks as much as lawyers. The top law firms are now increasingly an internationally focused global matrix of ‘super law-firms’ who do much more than mere law. At Schillings, for example, as I pointed out in my editor's letter of the last issue, only around half the most senior employees are actually lawyers.
What sutures this new matrix of legal and financial power and influence together is not class, education, schools, but rather a global outlook that is broadly in favour of the corporate global and legal status quo. This also includes being at the heart of international legal and financial community, which means, if you are a British lawyer or have judicial ambitions, being at the heart of Europe. This means access and influence with lobbyists, fellow lawyers in Brussels and Strasbourg and a respect for the corpus juri of the EU statute.
Politicians are being marginalised as law firms become more globally powerful. The EU, like the global corporate elite, has little respect for national boundaries. Hence elected politicians are being marginalised. Normally the Lord Chancellor is the editor of Halsbury's statutes of England but since Liz Truss is not even a lawyer, the august legal authority might be looking for a new editor. Not the least as the editor is likely to be very busy with his red pen. Before Brexit, lawyers were told it will contain' improved integration of European law'.
Whilst such bodies as the Judicial Appointments Commission make every effort to be politically impartial, few would deny that there is a progressive flavour to the judicial classes. What binds many together is what lawyers call consensus ad idem - a meeting of minds - when it comes to seeing European law as being generally a force for the better, especially in the field of human rights law.
This is not in any way unsurprising. Nor is it a criticism. If I had decided to become a corporate lawyer in 1989 on leaving Cambridge, I might very well - post Big Bang - have set my sights on becoming a QC and making a financial jackpot from the explosion of EU law. It is no more remarkable that discovering that senior members of the National Union of Farmers executive are pro-EU. Anybody wanting to rise up to the top ranks of the legal profession would find it hard not to have engaged with the EU over the last 25 years.
Certainly since the 1972 European Communities Act - which made EU law supreme over UK law - few lawyers know anything different. Most (you would need to have started practising 44 years ago) don't even know a legal system where UK law is supreme over the EU.
A common mistake it to think that there is any real difference between high-flying Oxbridge corporate lawyers and their banker contemporaries. Both feed of each other. Both are often as wealthy as each other (lawyers probably more so as they don't tend to play musical job chairs with their careers ) and both embrace a similar global corporate order.
The more versed they are with the more arcane and technical aspects of the EU finance or legal system, the more career promotion follows. Being 'embedded' within the system as an EU judge doesn't harm. Indeed, the judicial classes relish the labyrinth-like complexities of the EU statute books with their competing jurisdictions and legal hierarchies.
One thing is certain. The Supreme Court tomorrow will not only be a decision on the Gina Miller action. The relationship between judiciary and executive (i.e Parliament) itself will also be on trial. The judgement will affect the way that the Constitution is read in the future.
I admire and respect all of the Supreme Court judges as the best in the land. Let's hope it is not a white wash and that our most senior judges - brilliant lawyers all of them - really show they have wrestled with the constitutional issues presented to them.
Never has it been suggested that any of the previous UK referendums (eleven in total including regional referendums) should not be enacted - all have been adopted and accepted as the will of the people who are the source of Parliamentary sovereignty (not the judiciary). No lawyer or judge has ever suggested the other referendums were merely 'advisory'. To do so would be to subvert the very notion of the Royal Prerogative and play with constitutional fire.
I know this argument is unlikely to win over the eleven judges. But let's also hope that the country's legal and executive arms do not clash in way that forces a constitutional crisis. Lets hope their eleven faces are not splashed on the cover of the Daily Mail on Wednesday with some anti-populist epithet that will make 'Enemies of the People' look tame.