The attacks on the judges in the papers over the Brexit judgment have shocked many lawyers. We have an independent judiciary and the rule of law for good reasons, and we forget them at our peril. As the President of the Law Society put it, “Attacks on the judges simply because they were doing their jobs, does our country no credit … It is part of the role of lawyers to defend unpopular causes and there has been an increasing narrative in recent months that seeks to conflate the jobs solicitors and barristers do with the causes they represent as part of our system of justice. The extension of this to disparaging and criticising judges is dangerous and damaging.” Trying to put political pressure on judges, or even to intimidate them, should be totally unacceptable in a civilised society.
But what did the court actually decide? Contrary to what the tabloids say, it has nothing to do with the referendum and whether it is binding – the Government did not even attempt to argue that the referendum provided legal authority for giving the Article 50 notice. The case turns on whether giving the Article 50 notice effectively changes the law enacted by Parliament.
The Government accepted that the notice automatically brings about the end of UK membership and cannot be withdrawn. The court found that this changes the legal rights of UK citizens, and any Brexit agreement with the EU would also have legal effects inside the UK. The power of Government to make (and unmake) treaties is under the Royal Prerogative.
It is clear – and very important – that ministers do not have power to change or override the law as enacted by Parliament. A commentator criticised the judges’ reliance on “a 17th century statute” – but that is the Bill of Rights, as close as we get to a written protection of freedoms in English law! It says, “the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall … the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie … is illegall.”
Everyone knows that untangling UK laws from the EU will need an act of Parliament. What the judges have decided – and the point on which an appeal to the Supreme Court could succeed – is that the mere giving of the Article 50 notice has a legal effect that amounts to repealing or suspending the European Communities Act 1972, wholly or partially. That needs an act of Parliament. The central point is whether the Article 50 notice has that effect. Does it, of itself, change domestic laws; or does it, like many treaties, change international obligations in ways that need UK legislation to implement them, which comes later? Can ministers create a legal mess at international level, which then has to be sorted out later by Parliament?
Wait for the next thrilling instalment of R (Miller) -v- S of S for Exiting the European Union.