The Supreme Court is in dangerous constitutional territory with its Article 50 ruling

The Supreme Court is in dangerous constitutional territory with its Article 50 ruling

So the Supreme Court finally published its judgment on whether the Government could trigger Article 50 using prerogative (executive) powers.

It was absolutely right for the Prime Minister to appeal to the Supreme Court, contrary to some who have said that the Government wasted money in doing so. After all, the ruling divided into two distinct and important parts. The PM’s critics miss an important point, which is that the court had been asked to rule on the outcome of two of the UK’s High Courts, those of Northern Ireland and separately of England and Wales. The Government needed to establish a clear position on both. In the end, like the curate’s egg it was good in some parts but bad in others.

Perhaps the most vital of the issues before the court was whether the UK government had an overriding legal obligation to consult the devolved administrations prior to triggering Article 50. In essence this would have handed enormous power to the devolved administrations. For the Government, this was perhaps the most difficult area for, if upheld by the Supreme Court, then it would have led to long delay and intense and complicated arguments between the devolved administrations and Westminster.

In fact, many believe that the purpose of this demand was to block the triggering of Article 50 completely. Certainly, had the Court ruled in their favour then the process would have ground to a halt, and Article 50 would have likely as not become bogged down in tortuous legal and political debates. To the Government’s relief, that now will not happen.

However, in the second part of the judgment, the Court, in a split decision, ruled against the Government’s appeal. It found that the Government had to legislate before invoking Article 50. This means putting a Bill through the Commons and the Lords which is capable of being amended.

This ruling was disappointing but perhaps not unexpected, as it is always more difficult to get the Supreme Court to overturn a High Court decision than uphold it, particularly one on which, unusually, the Lord Chief Justice sat.

There are two elements to this that cause problems. The first is that you can already hear those who want to remain in the EU gleefully putting together a raft of amendments to try to impede the passage of the bill and possibly stop it. That in itself shows the clear intent of those who still can’t come to terms with the result of the referendum. After all, the entire question before us at this stage is simply whether the Government should invoke Article 50 by 31st March. For without invoking Article 50, we cannot even begin the process of negotiating with the EU.

The decision was taken even though the Government made it crystal clear that after they have invoked Article 50 they will put the repeal of the 1972 European Communities Act before Parliament. That will more than meet the demand for full legislation which can be amended as it covers every element of our binding relationship in law with the EU.

Lord Carnwarth, one of the Supreme Court judges, made this point in his dissenting judgment that he couldn’t see why the government should have to enact legislation just to then enact further legislation when he wrote: “…but that does not mean that legislation is required simply to initiate it. Legislation will undoubtedly be required to implement withdrawal, but the process, including the form and timing of any legislation, can and should be determined by Parliament not by the courts.

As if that wasn’t enough debate, the Prime Minister has agreed to go further and come back to Parliament after the Government has finished the negotiations and have a full debate on the terms with a vote to follow.

Whilst I am sure the Government will now table a short bill, drafted carefully so that it is not capable of being amended to any great degree and which will probably get through both houses of Parliament in reasonable time, in a sense, that’s not the important point. For in the judgment, the Court dismissed the overwhelming vote in the Commons in December to trigger article 50 by the end of March.

Even more astonishing was the way in which the Court swept away the referendum as having no legal significance, dismissing the clear direction by all parties as the Referendum bill was passed that the referendum was final. The Court did this, notwithstanding the fact that the public were clearly asked to make the decision.

I don’t believe that those many millions who voted on 23rd June last year thought for one moment that they were simply advising the government. They believed, as did the whole of government and all other parties, that the British people were going to decide the question, not Parliament. The Court downgraded the referendum to a status not much more than that of an opinion poll.

My last and most important concern is not about the issue of Brexit at all and goes to the heart of the judgment and its impact on the constitutional relationship between the Supreme Court, the legislature and the government. In this it is well worth reading the opinions of those dissenting judges who also sat in the Court. The most important issue which has been little discussed is the degree to which this judgment takes the Court into a constitutionally fraught area. For in it the Court, in effect, says that it is able to decide whether it – rather than Parliament – can define the limits of government power.

This is a enormous step, for after all it has always been for Parliament to call the executive to account and to define the limits of the exercise of their executive responsibilities, not the courts. This is done on the constitutional basis that Parliament is supreme and not the courts.

Lord Reed summed these important concerns up succinctly when referring to the constitutional importance of ministerial accountability to Parliament, saying: “Ministerial decisions… of greater importance than leaving the EU have been taken without the possibility of judicial control… For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”

We are justifiably proud of the independence of our courts and of those who sit in them, for they are rightly the envy of many other nations. It is also the responsibility of politicians to defend the courts as they go about their duty. However, that should not blind us to legitimate concern that in ruling on such a controversial and complex issue they are beyond legitimate criticism if the result leads to wider consequences.

In essence, the problem here is that the court has created a constitutional problem between Parliament and the judiciary which, beyond the issue of Article 50 and our leaving of the EU, must be resolved or the long held belief in the supremacy of Parliament will be called into question.