Legal News

On 3rd November 2016 the High Court ruled in the case of Miller that the UK Government does not have the power to trigger Article 50 of the EU Treaty without parliamentary approval. Quoting the Fire Brigades Union, the court held that ‘the executive cannot exercise the prerogative power in a way which would derogate from the fulfilment of a statutory duty’. The Daily Mail labelled the judges involved ‘Enemies of the People’.

The court reasoned that the triggering of Article 50 would inevitably render the European Communities Act 1972 (‘ECA’), which brought us into (the then) European Economic Community, meaningless, and would result in a loss of fundamental rights. Simply put: what Parliament has done, Government cannot undo, because Parliament is sovereign. The Government has appealed this ruling and it is due to be heard in the Supreme Court on 5th December.

A similarly violent reaction followed a recent speech made by Lady Hale, the only female Supreme Court judge, in Kuala Lumpur earlier this month. Lady Hale observed that the EU Referendum was not legally binding on Parliament and questioned whether a short bill would suffice as parliamentary consent to trigger Article 50, or whether a more comprehensive bill would be required.

Predictably, the Great British Bulldogs in the Conservative Party - Ian Duncan Smith, Dominic Raab, Bill Cash along with the UKIP MP Douglas Carswell - rounded on Lady Hale, issuing threats and warnings from froth-flecked muzzles, rabidly accusing her of trespassing onto political territory and of reaching a premature verdict.

The lack of balance in these responses is lamentable. Lady Hale’s comments were made in the context of an academic lecture addressed to lawyers and students and were clearly intended to be seen as musings on possible scenarios. Lady Hale acknowledged that what needs to be done is ‘not so clear’ and concluded humbly that while it is accepted that the Supreme Court judges are ‘guardians of the Constitution’, she wished they ‘knew what it meant’. The bulldogs seem not to have read Hale’s speech.

Lady Hale simply opened up debate by discussing the emerging principle of statutory construction, first introduced by Judge Laws in the famous ‘Metric Martyrs’ case of 2002. Here, Laws held that ‘express words’ are needed to repeal a ‘constitutional statute’. Such a significant statute cannot be subject to the doctrine of implied repeal. Laws clarified that a statute is ‘constitutional’ if it (a) ‘conditions the legal relationship between citizen and State in some general overarching manner’ or (b) ‘enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights’. In the High Court ruling of Miller, the ECA was held, rightly, to be one such constitutional statute, and thus immune from implied repeal. Hale appears to draw on this principle of statutory construction to tentatively wonder whether, if the High Court ruling is upheld by the Supreme Court, a ‘comprehensive replacement’ (more express words) would be required to repeal the ECA before Article 50 is triggered, rather than a ‘simple Act of Parliament’. Hale’s comments come in the light of rumours that the Government have prepared a three line bill.

The Brexiteers have reacted to the High Court judgment in Miller and Lady Hale’s speech with wrath because they fear that increased parliamentary involvement will challenge their hijacking of the exit process, and will obstruct their desired ‘hard Brexit’. The hypocrisy stinks. The Secretary of State for Exiting the EU, David Davis, proclaimed in September that leaving the EU ‘will put the sovereignty and supremacy of this Parliament beyond doubt’. In Miller, Davis is fighting to prevent Parliament from exercising its sovereign power.
Patrick Page is a Caseworker in the Public Law department at Duncan Lewis' Harrow office. He specialises in immigration and asylum law.

Patrick Page is a Caseworker in the Public Law department at Duncan Lewis' Harrow office. He specialises in immigration and asylum law.

Duncan Lewis’ Public Law department, recommended by Legal 500 2016 for its depth of experience in immigration and civil liberties challenges, is now well established and known by the Legal Aid Agency, the Courts, and the Treasury Solicitor. This enables us to quickly and effectively obtain funding, manage cases with the Court (get quick listings, direct access to Court lawyers) and communicate effectively with team leaders at Treasury Solicitors.