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Brexit: eleven judges getting it wrong

2016-12-11 07:06:01

You can virtually guarantee that when you question the actions of the great and the good, there will be someone who will discount your argument simply on the basis that mere plebs are not qualified to challenge high persons- the classic "appeal to authority".

Such was the case in my Tuesday's piece on the Supreme Court completely missing the point on the meaning of Article 50(2) of the Treaty of the European Union. Nevertheless, Booker has picked up the point in this week's column, where he asks: "Why are the Brexit lawyers ignoring a crucial point of law?"

Quite the oddest feature of the "Brexit case", he writes, is that, despite those scores of highly-paid lawyers cramming the courtroom to argue whether or not the Government could invoke Article 50 without an Act of Parliament, not one of them touched on the crucial fact that we have such an Act of Parliament already.

Article 50(2) of the Lisbon Treaty obliges any government which has decided to leave the EU to notify the European Council of its intention. No one is disputing that, following the referendum, the British Government has decided to leave and that it is therefore its legal obligation under the treaty to inform the European Council so that negotiations can begin.

But we must then turn to section 2(1) of the European Communities Act, by which Parliament in 1972 voted for Britain to join what is now the EU.

This quite explicitly places on the Government the duty to give "legal effect" to any "obligation" created under the treaties, "without any further enactment". Those words could not be clearer.

Therefore, Booker says, the Government has no need to rely on the Royal Prerogative, as was argued for it last week. The requirement to invoke Article 50 is an obligation created by an EU treaty, and Parliament has already ruled in 1972 that the Government must legally meet all such obligations "without any further enactment".

So this, rather than the Royal Prerogative, is the legal point on which Theresa May should be relying for her right to proceed in invoking Article 50.

Despite the fact that not a single lawyer last week raised this point, it would indeed be bizarre if the judgment of the Supreme Court was not only to overlook the terms of the Lisbon Treaty itself but was also to fly in the face of the European Communities Act, one of the most important statutes ever enacted by Parliament.

Still, Booker concludes, wasn't it telling how, when stripped of the majesty of their wigs, those eleven judges in suits came across as no more than ordinary, potentially fallible mortals?

One commentator on my blog, however, argued that even if we were to accept this analysis, the constitutional position is essentially unchanged: "the point at which the Executive acts to remove rights bestowed by Parliament is simply the point of decision rather than notification".

But that is precisely the point. The plaintiffs in front of the High Court were arguing that Article 50(2) put into effect the decision to leave the EU, and it was therefore the exercise of the "power" to notify the European Council of the decision to leave which had the effect of depriving UK citizens of rights. And it is that which forms the substance of the case.

Yet those eleven judges in suits (including the one of a female variety) were no better versed in the history and the background of Article 50 than they were the law.

The essential issue here is the right of the UK to leave the EU is a sovereign right which stands above the EU treaties and is not dependent on them. Article 50(1) is not permissive in stating the a Member State may leave the EU, it is simply reiterating a fact.

What then devolves from this is that, but for Article 50, the decision to leave would have immediate effect. In adopting Article 50 in its entirely, the UK Government agrees to suspend the effects of any decision to leave, until such time as it has negotiated an exit settlement or, in the absence of a settlement, a period of two years.

When we leave at the completion of the Article 50 procedure, the UK then is finally able to execute the decision it took in the first place, when the effects kick-in. But for Article 50, though, they would have kicked in earlier.

Thus, it really cannot be sensibly argued that Article 50(2) gives effect to Article 50(1). The decision to leave stands on its own and the effects that arise from our departure stem from that decision.

Yet, in neither the High Court nor the Supreme Court has the decision to leave been challenged. Arguably, if there is an exercise of Royal prerogative, it is in the Government deciding to leave, except that the Government could also argue that it is simply implementing a promise it gave to the peoples of the UK.

Either way, it is not our problem that the plaintiffs chose to challenge Article 50(2). They could have chosen to challenge the decision to leave, but did not. And, for that, their challenge deserves to fail.

Should anyone then argue that that the serried ranks of the great and the good could not possibly be wrong, one can only point to the many occasions in history when the consensus support favoured one viewpoint which, latterly, proved to be disastrously wrong.

The fact that a room full of lawyers and eleven judges may think something is right does not necessarily make it so. And in this case, I prefer my own reading of plain English words. Article 50(2) does not give any power to the UK Government it imposes an obligation. The challengers have got it wrong.