Ian Merrilees, a former teacher in European law, digs into the detail of the latest development in the Brexit wrangle
IN spite of all the froth surrounding the High Court ruling on Brexit, the legal analysis contained nothing that would surprise an undergraduate law student.
The only unexpected twist in the judgement was the contemptuous language used to dismiss part of the government's argument ("a submission divorced from reality").
The case was essentially a simple one, resting on some very fundamental points of constitutional law, the kind of thing students learn in the first few weeks of a law degree.
The Brexit crowd have shown an astonishing ignorance of the basic principles on which their revered parliament stands.
Some politics students learn about it at school. The Brexit crowd, however, have shown an astonishing ignorance of the basic principles on which their revered parliament stands.
Parliament and government are different institutions with different roles. Only parliament can change the law. Government can put forward proposals for legislative change – in the form of bills – but they only become law if a majority in parliament approves.
Parliament can pass legislation authorising a referendum, but the result is advisory only. In the constitutional law of the UK, a referendum has the same legal standing as an opinion poll.
Theresa May's government is trying to usurp the role of the Westminster parliament. By confusing people with talk of the royal prerogative and the right of government to negotiate treaties, she and her main Brexit man, David Davies, hope that no one will notice.
A deception, like this one, will only stand a chance of success if it contains some elements of truth. The Westminster government can, indeed, negotiate and even ratify a treaty without the need for parliamentary approval.
Parliament and government are different institutions with different roles. Only parliament can change the law.
However, it is important to understand that treaties don't have any effect on domestic law. They are binding only on the state, not on its people. To become part of UK law, the Westminster parliament would have to pass a statute repeating the contents of the treaty, which takes us back to our basic point that only parliaments can change domestic law.
And because EU and international relations are reserved matters, only the Westminster Parliament can pass the necessary legislation.
Ever since she arrived in Downing Street, Theresa May has been talking like an antique monarch, claiming she can ignore parliament and dispatch the letter that begins the UK's departure from the European Union whenever it suits her.
The Article 50 letter, she says, simply begins a treaty negotiation, and treaty negotiation is a task of government, not parliament.
As one would hope from three of the highest ranking judges in England and Wales, none of them were taken in by the government's spurious reasoning. The Article 50 letter, they explained, does not simply begin a period of treaty negotiation.
It is, on its own, enough to deprive everyone in the UK of the rights they have gained under EU law. Article 50 of the Treaty on European Union is clear: two years after submitting formal notification to withdraw, EU law will no longer apply in the UK. Our rights will be diminished. The letter will bring about a change in the law.
Ever since she arrived in Downing Street, Theresa May has been talking like an antique monarch, claiming she can ignore parliament and dispatch the letter that begins the UK's departure from the European Union whenever it suits her.
(To be strictly accurate, departure could be sooner if all parties can agree an exit deal, or it could be later if all 27 continuing member states agree to extend negotiations. But the ability of May's government to reach an early agreement is unlikely considering that it is still clueless about the EU, and you wouldn't bet on the leaders from eastern Europe doing the UK any favours, not after all the abuse directed at them by Boris Johnson and his kind).
After the judgement was released, various government voices recited the usual platitudes about respecting the will of the people and pressing on with Brexit undeterred. Theresa May said she still intends to start withdrawal negotiations in March next year.
However, this case could run for a lot longer than that. It all depends on how much confidence the Supreme Court judges have in their understanding of Article 50. It's possible they might feel compelled to turn to the Court of Justice of the European Union for advice.
If that happens, Theresa May would be lucky to get her letter in the post before the next Westminster election in 2020.
The High Court judgement was silent on this point, but some commentators are alert to the fact that this case might have to pass from the Supreme Court in London to the CJEU in Luxemburg, which would take about 15 months to work through its in-tray and turn its attention to Brexit.
After some very careful deliberation its opinion would be passed back to London where the Supreme Court would take over again. According to that schedule we might get a final ruling around the middle of 2018.
After the judgement was released, various government voices recited the usual platitudes about respecting the will of the people and pressing on with Brexit undeterred. Theresa May said she still intends to start withdrawal negotiations in March next year.
If the High Court judgement is not overruled, then both houses of parliament could still be debating a Brexit bill in 2019. As David Cameron's Fixed-term Parliaments Act forces a Westminster election to be held on 7 May 2020, the two-year negotiating period envisaged in Article 50 would be interrupted by the dissolution of parliament and a general election campaign.
In those circumstances, would it not make more sense to delay the Article 50 letter until after the 2020 election?
The Supreme Court thus finds itself in a politically awkward situation. The kind of abuse heaped on the High Court judges will be nothing compared to the incendiary wrath and bigotry that would follow a decision to call in help from the court in Luxemburg.
The Court's potential problem stems from the fact that lawyers and academics cannot agree on the answer to this simple question: If the UK sends the letter that begins the exit procedure, can it later change its mind and decide to remain in the EU?
There is nothing in the wording of Article 50 that covers that possibility. A quick survey of some respected legal thinkers shows there is ample room for disagreement.
However, this case could run for a lot longer than that. It all depends on how much confidence the Supreme Court judges have in their understanding of Article 50.
Those who think the decision to leave can be revoked before the deadline expires include Professor Sir David Edward (former judge in the Court of Justice), Professor Derek Wyatt QC, Professor Phil Syrpis and George Peretz QC.
The lawyers acting for both sides in the High Court, on the other hand, were united in their view that the Article 50 letter is irrevocable.
The mere existence of the question will weigh on the minds of the Supreme Court judges. The difficulty for them does not lie in having to work out the answer. The problem is that they are not allowed to attempt an answer.
Instead they must, if they think the question important to the proceedings, halt the case and ask the Court of Justice for advice. The legality of Brexit is moving from Article 50 to Article 267 of the Treaty on the Functioning of the European Union.
The provision in Article 267 is unchanged since it first appeared in the Treaty of Rome in 1957. Known as the preliminary reference procedure, it was designed to assist judges in the national courts interpret EU law and ensure they all apply it consistently across the member states.
It's possible they might feel compelled to turn to the Court of Justice of the European Union for advice.
The High Court had the option of keeping the case to itself rather than sharing it with the CJEU, but different rules apply to the Supreme Court. It is a court of last resort – there is no higher court in the UK for the case to go to on appeal.
Under the rules of the preliminary reference procedure, a court of last resort has no option but to refer a case to Luxemburg if it feels there is a question of EU law that needs to be resolved.
There is no doubt we have a question worthy of an answer. The only point to argue is whether an answer is necessary for the Supreme Court to reach a decision on the one issue raised so far: must the government obtain the consent of the Westminster Parliament before sending notice to leave the EU?
The High Court was able to answer in the affirmative relying solely on principles of English constitutional law (and we should remember the words of Lord Cooper in the Court of Session in 1953 that the doctrine of parliamentary sovereignty, at the heart of the case, is "a distinctively English principle that has no counterpart in Scottish constitutional law").
There was nothing in the judgment likely to be overruled. The Supreme Court could simply affirm that ruling and tell parliament to get on with debating a Brexit bill. But that would be a debate about starting a difficult journey to an unknown destination with no idea whether the option exists of turning around and going back to the security of home.
If that happens, Theresa May would be lucky to get her letter in the post before the next Westminster election in 2020.
As Brexit negotiations could span two parliamentary terms, it is conceivable that a different government might want to cancel Brexit. The question about revoking the Article 50 letter is not merely a hypothetical one. It has important consequences for the UK and the EU. That makes it more difficult for the Supreme Court to deny that it requires an answer from the CJEU.
On Tuesday the Scottish Government announced it would apply to intervene and make its own submission to the Supreme Court. A few hours later the Court confirmed it had received notice of the UK Government's intention to appeal and set aside four days for the hearing, beginning on 5 December.
Having lost in the High Court, Theresa May presumably thinks she has nothing to lose by asking for a second judicial opinion. But her appeal to the Supreme Court gives all the participants opposed to Brexit the opportunity to shift the argument from English constitutional law to the correct interpretation of Article 50.
If the court were to decide it needs to refer that question to the CJEU, then Theresa May will find she has to wait much later than March 2017 to start Brexit negotiations.
Picture courtesy of Blogtrepreneur
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