A Very Few Words on the Supreme Court Decision

I don’t know whether today’s decision of the Supreme Court has been greeted with the same outrage as followed the Divisional Court’s decision (“Enemies of the People” etc.). I hope it has not. Of course, because I would rather the House of Lords didn’t have a chance to block the service of a notice under Article 50, I would have preferred, for political reasons, the court to have allowed the government’s appeal. But the decision comes as no surprise. What is more, the judgments, including the majority one, are a fascinating read for anyone interested in the British constitution.

Fortunately, and we should be grateful to them, Lady Hale’s colleagues must have persuaded her not to pursue her rather strange contention, in an extra-judicial speech delivered before the hearing, that a much more complicated Act of Parliament would be required to enable Article 50 to be triggered than the simple one which the government proposes to introduce. All proceeded on the basis that, if an Act was required, all it had to say was that the government is permitted to serve a notice under Article 50.

Neither did the court give any credence to the suggestion that the European Communities Act 1972 was such a special constitutional Act that it could not be repealed in the way any other Act could be repealed. The majority expressly held that repeal could be effected in the normal way. We should also be grateful that the court rejected the bizarre arguments of various Scottish, Welsh and Northern Irish parties to the effect that the UK cannot leave the EU without their consent.

In the end, all turned on two points. First did the 1972 Act, as a matter of statutory construction, remove the Crown’s right to withdraw from the European treaties without statutory authority to do so? Secondly, would the triggering of Article 50 by an exercise of royal prerogative amount to a removal, without statutory authority, of rights and duties from domestic law in such a way as to render the exercise to be unlawful?

The majority answered both questions “yes”. The three dissenting judgments answered them “no”.

As Lord Hughes said, in his dissenting judgment on the statutory construction issue, either of the two competing readings of the Act is clearly possible. He said the majority’s reasoning for favouring Ms Miller’s interpretation was “cogent”, but he, like Lords Reed and Carnwath, preferred the government’s interpretation (as explained in Lord Reed’s judgment). For their part, the majority described Lord’s Reed’s analysis as being “powerful”, but preferred their own interpretation.

All four judgments were, I thought, compelling and persuasive. My own view was that the dissenters’ arguments were marginally stronger than those of the majority, but that could just be because of my political prejudices. The academics will no doubt be rushing into print on both sides of the argument. But the law, whether it has been correctly declared or not, is as the majority has ruled it to be. Parliament must now take over. We are in for a few interesting weeks.

Charles