EU Referendum

Brexit: Judicial Review - round one


If you really think about it – and I concede that I hadn't so far given it any great thought – the Article 50 judicial review had to go before the Supreme Court for the judgement to be final, paving the way for Brexit to continue without further interruption.

Since a judicial review must initially be heard by the High Court – and the plaintiffs might not have appealed if they had been struck down - the best way of ensuring that the case went beyond the first round was to ensure that the initial decision went against the Government.

And if anyone really thinks that the Courts are objective seekers after the truth, and will find according to the fact, they are away with the fayries. At this level, "justice" is about making sure the establishment view prevails, and this is decided long before any lawyer starts addressing a judge.

Thus, before one takes note of the torrent of comment attendant on the outcome of the first round of a court case that will now move to a different venue on 7 December, one should note that this is just the first round. Those of a mind to celebrate should remember that it ain't over until it's over.

As to the judgement, I have now read it several times and then looked at some of the legacy media commentary and some of the blogs, such as Semi-Partisan Politics and Pete North, but would prefer to reserve my own detailed comments until I've seen the final judgement – the real judgement.

One thing I find puzzling about this interim judgement though is why their Lordships seems to have misinformed themselves about the nature of Article 50(2), having regard to the first paragraph of the Article.

The first paragraph, as readers will recall, is a statement of fact – reliant on customary law and the Vienna Convention on the Law of Treaties (VCLT). It says: "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".

And clearly, this Member State, represented by the Government led by Mrs May, has decided to withdraw from the Union. The decision has already been made. Mrs May has reminded us of that many times since her very first pronouncement on becoming Prime Minister, when she declared "Brexit means Brexit". There would be no rowing back.

Whether or not there was a formal Cabinet decision to that effect, we do not know, but there can be no possible doubt that this Government means the United Kingdom to leave the EU.

On this, Parliament was consulted. There are many mechanisms by which Parliament could have raised a debate in either or both Houses, and voted on the same proposition that was put to the people – whether to remain in or leave the European Union. It did not do so and, by approving the Referendum Bill explicitly passed the decision to the people to make.

Even for our sad collection of intellectually challenged MPs, there cannot have been much difficulty in working out that, if a referendum posed two questions, then the most likely outcome would be that one or other might prevail (assuming a dead heat was hardly possible).

Then, the dimmest of our representatives could have drawn the conclusion that, should the majority vote to leave the EU, then the Government would be committed to take action to make that happen. Implicitly, a necessary consequence of the referendum vote going against the EU was that the Government would decide to leave the EU.

Then, in terms of a step-by-step sequence, having decided that we should leave, the Government is duty bound under Treaty law (viz Article 50) to notify the European Council of its decision. The notification itself is not the decision to leave. It is exactly as stated on the label – a notification of a decision already made.

Yet, we find in the High Court judgement the rather remarkable assertion (para 19) that the court is called upon to apply the constitutional law of the United Kingdom to determine whether the Crown has prerogative powers to give notice under Article 50 to trigger the process of withdrawal from the European Union.

It is the case of the plaintiff that the Government should not be permitted to make that notification, and should require Parliamentary assent before so doing.

We thus have a situation where the decision of the Government to leave the EU is not being challenged. Simply, it is argued that Parliamentary approval should be required before it (the Government) obeys treaty law and puts its decision into effect.

This seems illogical. The sequence here is that Parliament has chosen to refer to the people the question of whether to remain in or leave the EU, that the people have chosen to leave and the Government, as a direct result of that vote, has decided that the UK should leave the EU.

Now it is argued that, before the Government can comply with treaty law, which it is obliged to do by virtue of the ECA – a fully-fledged Act of Parliament – it must get the permission of Parliament. Effectively, it is being asked to get permission from Parliament to obey an Act of Parliament.

In this scenario, it is theoretically possible that Parliament could refuse permission. The practical effects of that need not concern us yet. But, the Government is still obligated to execute the will of the people – a "political" rather than a legal commitment.

Having been blocked from invoking the treaty provision, however, the Government might have little option but to fall back on Article 62 of the VCLT and unilaterally abrogate the EU treaties – relying on Crown prerogative for its authority.

It would then be open for some other activist to emerge and launch another Judicial Review – and one assumes that would be necessary as this case only covers the use of Article 50. But the point would have been made. The Government is responding to the will of the people. Those invoking Parliamentary sovereignty are seeking to block it.

This is why I thought that the Courts should reject the invitation to get involved in what amounts to a dispute between the executive and parliament. And in due course, I hope the Supreme Court will reject this presumptive and illogical case.

Precisely what the judges will do – and I note that, for the first time in history the full panel is to sit – is anyone's guess. But my strongest suspicion is that the outcome has already been decided. Mrs May will get her way.