The remainers  are intent on murdering Brexit through the political equivalent of death by a thousand cuts. Delay is their great ally and there are plenty of individuals – politicians, mediafolk, academics, lobbyists, pressure groups, businessmen and much of the rest of the amorphous mass of the Great and the Good – who are willing to play the role of Quislings in the service of the EU.

The decision by the High Court that the government cannot activate Article 50 to begin the process of the UK leaving the EU without first getting Parliament’s approval is as shameless a piece of politically motivated judicial activism as you could find. It has potentially created  the type of constitutional clash which civil wars are fought over.

The Government has decided to appeal against the judgement. Permission has been given to bypass the Court of appeal and go straight to the Supreme Court. The case should be heard on 5th December, but the judgement will probably not be given until the New Year. The Supreme Court has also given Scotland and Wales the right to intervene at the appeal hearing. This will broaden the matter to include the role, if any, of the devolved assemblies. A case brought in Northern Ireland at their High Court over Article 50 has already been dismissed as non-justiciable.

Are senior English judges pushing their own political agenda? Consider this: The three judges involved were Lord Thomas of Cwmgiedd (Lord Chief Justice), Sir Terence Etherton (Master of the Rolls) and Lord Justice Sales. There is nothing in Etherton’s past to say what his stance on the EU would be, but the other two definitely have question marks over their impartiality.

Thomas was a founding member of the European Law Institute, whose mission statement is the ‘enhancement of European legal integration’. He has also served as  President of the European Network of Councils for the Judiciary. It is reasonable to conclude that he is in favour of the UK’s membership of the EU.

Sales worked in the chambers headed by the erstwhile Lord Chancellor Lord Irvine of Lairg and is a friend of Tony Blair for whose government he worked as First Treasury Counsel. As Blair and his government were firmly in the EU camp and Blair has recently been vociferous in denouncing the vote for Brexit it is reasonable to suppose Sales’  sympathies probably also lay with the remain side.

But even without relying on pro-EU evidence it is a fair bet that any senior member of the judiciary is likely to be a Europhile and emotionally opposed to Brexit because they come from a set of people for whom Europhilia is the norm. Moreover, is it really possible for anyone to be truly impartial when adjudicating on such a nakedly political matter?

After the High Court Judgement it was widely thought that the passing of a  Bill permitting the activating of Article 50 would be sufficient to meet the Court’s judgment that Parliament must agree to the triggering of Article 50.  That would have been difficult enough bearing in mind the preponderance of remainers in both Houses of Parliament. But the position has become more fraught. Astonishingly, one of the judges scheduled to hear the Supreme Court appeal, Lady Justice Hale, has publicly pronounced that  “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 of the 1972 act…” If the Supreme Court agrees with her the delay could be interminable. Whether what Hales has said would technically rule her out from hearing the Supreme Court appeal is not clear because she could argue she is merely putting forward a legal point to be considered, but it is an extraordinary thing for any judge, let alone one of the most senior in England, to comment on a case which is to come before them. It certainly adds to the suspicion that the higher judiciary is deliberately trying to block Brexit or at least prepare the ground for remainer politicians to manoeuvre for  conditions which will tie the government’s hands, the majority of whom are also natural remainers.   

Not a simple matter of law

The  London High Court judgement stressed that the decision had been made simply as a matter of law and the court took no position on the desirability of otherwise of the UK leaving the EU. But what did the judgement achieve in practical terms? It said that Article 50 could not be activated without Parliament voting on the matter, possibly by a motion, but most probably by voting on a Bill. But if it was simply a matter of voting on the Article 50 activation, what would be the purpose of such a procedure after the question of leaving or remaining had already been decided by the voters? It would be an empty act.

The answer is all too obvious. The judgement meant it would not simply be a question of Article 50 being given Parliamentary sanction. MPs and the Lords potentially would be able to delay the Bill for a considerable period of time and by placing amendments to the Bill. If it was a motion the Commons could simply vote it down.

The Government has a small Commons majority, and could probably count on a handful of MPs from other parties to vote with them on this issue, but the House has a substantial majority of those who wish the UK to remain in the EU. There are 650 MPs in the House of Commons. Of those probably two thirds, including many Tory MPs, are remainers. Hence, numerically, in theory it would be very easy to defeat any Bill the government puts forward to activate Article 50. However, it is dubious whether many remainer MPs would want to be in such naked and direct conflict with the voters who voted to leave, by simply rejecting a Bill or a motion which did nothing more than authorise the activation of Article 50. Instead they will try to engineer a situation whereby they will authorise the activation of Article 50 but only if the government accepts that they will  negotiate within limits set by Parliament. The most probable limitation would be that any agreement with the EU must include the UK’s continuing membership of the single market. It is wildly improbable that the EU would agree to that without insisting on free movement of labour, the UK continuing to pay their annual “fee”, the UK being bound by the regulations which attach themselves to the single market and subject to the European Court of Justice or a surrogate  such as that which performs the same function for EFTA countries. In short, this would require the UK to sign up to all that the voters rejected in the Referendum and the country would remain within the EU in all but name.

All of this means that the High Court verdict was not a simple procedural matter but a legal direction which very obviously had effects which challenged the viability of the vote to leave. The issue which the High Court should have addressed is: what would Parliament have to examine before Article 50 was activated? The question on the ballot paper was this:

‘Should the United Kingdom remain a member of the European Union or leave the European Union?’

The question was suggested by the Electoral Commission (EC) and accepted by the Government after the EC had judged the government’s question biased in favour of remain.

What was asked of the voter was beautifully simple: do you want to remain part of the EU or do you want to leave the EU? To leave an organisation means precisely that, you cease to have either the benefits or duties which membership brings. There is no ‘I’ve left  the club and won’t be paying my subscription any more, but I still expect to be able to come into the members bar and use the squash courts.’ Hence, there is no point in Parliament having a vote on Article 50 because the referendum has already decided that the UK will leave. There is no hard or soft Brexit, just Brexit!

By coming down in favour of Parliament voting on the activation of Article 50 the judges went against both the wishes of the voters and what was necessary. Whether they did so out of bias is a matter for their consciences, but it is a fact that by acting as they did they opened a door for the remainers to cause delay and confusion in the hope of either getting  something that is called Brexit in name but not in fact, or of the UK eventually remaining in the EU after a second referendum.

The Royal Prerogative

The  High Court found that the 1972 European Communities Act meant that the prerogative could not be used to activate Article 50. But as so often with legal judgements, legal minds disagree. Here is David Feldman, Rouse Ball Professor of English Law, University of Cambridge, giving a contrary opinion to that of the High Court:

“The question in Miller was therefore, at root, whether the terms of the European Communities Act 1972 by necessary implication excluded the use of the Royal Prerogative to initiate a process which might, or in the view of the parties would, lead to the removal of EU rights from the domestic legal systems. The Court thought that the relevant constitutional principles meant that the onus was on the Secretary of State to show statutory authority for initiating the Article 50 process. I have argued that this was mistaken, and that there is no constitutional or interpretative principle which requires the 1972 Act to be read as excluding this prerogative power. The implications to be drawn from the Act are, at best, equivocal. In my submission, the foreign affairs prerogative is not excluded by statute, and requires no special statutory support for its use.  Initially I thought that my view was self-evidently correct. The judgment of the Divisional Court shows that it is a matter on which informed opinions can differ….”

It also seems that the government made remarkably little effort to argue the case against justiciability of the High Court action (something which was successfully done in the Northern Irish High Court case) – the BBC reported that “It was quickly established on both sides that the issue was justiciable” and failed completely to base their defence of the action on the basis of popular sovereignty. The government also shot themselves in the foot by admitting that the activation of Article 50 would result in the loss of  some individual rights. This moved the triggering of Article 50 from being a simple procedure to something with the potential to trespass on statutes and hence beyond the power of the prerogative. The attorney-general Jeremy Wright faced strong criticism from some Tory MPs for what they saw as ineptitude in the presentation of the government’s defence.


[Ed: Part II of this article will be published on Sunday, 20th November 2016.]