These are extraordinary times.
We are jettisoning much of our constitutional superstructure from the last half a century. We are losing the Charter of Fundamental Rights. The Prime Minister has signalled her intention to ditch the European Convention on Human Rights. The government’s EU Withdrawal Bill places broad law making powers directly into the hands of the executive. The devolution settlements are under explicit threat. Cabinet ministers are contemplating the reintroduction of a hard border in Northern Ireland. Government routinely ignores in part or in whole motions in parliament. It acts in breach of constitutional conventions. “Senior Brexit Tory MPs,” it is reported, are taking legal advice on whether the executive can ignore the supremacy of parliament. And the Prime Minister has appointed as her official spokesman a man, James Slack, whose ‘Enemies of the People’ front page incited threats against judges.
The impact can already be seen in how the rule of law is operating in practice.
When Gina Miller took her Article 50 case to court her lawyers contended that it breached our constitution for the Government to trigger Article 50 without the consent of Parliament. Giving notice of leaving the EU would inevitably remove individual rights and so required the consent of parliament.
By triggering Article 50 the government would, as Lord Pannick QC put it, be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. It would, the argument ran, by executive decision inevitably change the law to remove EU rights of UK citizens but without legislation.
To understand whether that contention was right, you obviously needed to consider whether pulling the “trigger” would lead, inevitably, to the removal of legal rights. Whether, in other words, a notice under Article 50 could be revoked.
The only court that could answer that question was the Court of Justice in Luxembourg, which has ultimate jurisdiction over EU law.
But the Supreme Court did not send the question to Luxembourg. Instead it said it was happy to proceed on the assumption, convenient to both sides, that Article 50 was irrevocable. Miller wanted to win; she was happy to assert the notice was irrevocable. And the secretary of state could not contend that the notice was revocable because that would suggest, contrary to government’s policy, that the notice might actually be revoked. And so the Supreme Court just assumed that the notice was irrevocable “without expressing any view of our own.”
And, as we know, it went on to decide that the government could not give the notice without the permission of parliament.
This might sound practical but it raises a fundamental problem. The Supreme Court decided parliament must have a say on Article 50, but it did so on the basis of an assumption about the law which it hadn’t tested. And in doing so it acted impermissibly. It is no part of our legal system to act on the basis of assumptions of law. You can see why this is impermissible as soon as you ask “what would happen to the decision in the Miller case if the Court of Justice later decided that Article 50 was irrevocable?” What happens to the legislation enacted – and which might have been enacted – on the basis of Miller?
So why did the Supreme Court take this course? Did it just forget the impermissibility and dangers of proceeding on the basis of assumptions of law? Of course not.
Here we delve into the realm of speculation, but my theory is this: it was intimidated by the ferocious headlines in the Mail and elsewhere. It was spooked by the failure of the then Lord Chancellor to perform her constitutional duty to defend the judiciary. It felt threatened by Sajid Javid’s warning: “This is an attempt to frustrate the will of the British people and it is unacceptable.” It feared what would happen if it referred the question in circumstances where a referral would delay the Prime Minister’s stated intention to notify Article 50 by the end of March.
Let me put it bluntly. There is, I think, good reason to believe the Supreme Court was intimidated into acting contrary to the rule of law.
So let me return to the point with which I started – the discarding of our constitutional superstructure.
It is not sufficient to say, as many (including the Prime Minister’s former Chief of Staff) do, that “we” – whoever the “we” is in his sentence – can be trusted.
And there we have it. The reason many (but not all) remainers hold their view: we cannot be trusted to govern ourselves. https://t.co/nbfmjyqJiW
— Nick Timothy (@NickJTimothy) February 25, 2018
And it is not enough to assume that, because things were fine 50 years ago, they will be fine now.
In which a top barrister confuses values and specific legal obligations. I think we’ll probably still be into freedom and democracy even when we’re not signatories to the treaties, Jolyon. We kind of were before. https://t.co/NoA9tLc1dv
— Nick Timothy (@NickJTimothy) February 25, 2018
We have no domestic written constitution. Our extra-national constitutional structures are under explicit threat. And there is evidence that the operation of the common law – that very British solution –has been weakened by the climate created by Brexit.
And that should concern everyone – wherever they stand on Brexit.
A longer version of this post has been published on www.waitingfortax.com.