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Joshua Rozenberg: Supreme Court judges won’t be swayed by the media — but don’t expect them all to agree

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By Joshua Rozenberg on

What to look out for in this week’s Brexit showdown

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Can we expect a hard Brexit? A soft Brexit? Perhaps even a ‘grey’ Brexit?

Speculation in the Sunday papers about the type of exit deal the government wants to strike with the other 27 EU states will be of no concern to the 11 justices when they take their seats in the Supreme Court at 11 o’clock today. But I don’t think they will be impressed when they see this morning that someone has briefed out the speech they’ll hear from the Attorney General. Not that this changes anything. The only thing they must decide is whether the government can launch the Brexit process without an Act of Parliament.

Ministers would much prefer to use their inherent or executive powers — prerogative powers as they are formally called — to give notice under Article 50 of the Treaty on European Union. These powers were described by the High Court in its Brexit judgment last month as “the residue of legal authority left in the hands of the Crown”. But Gina Miller, the fund manager who took the government to court, argued that prerogative powers could not be used to undermine rights granted by Act of Parliament — in this case, the European Communities Act 1972.

Surely that’s obvious? If Parliament is sovereign, how could ministers possibly frustrate laws passed by Parliament?

The government’s argument is a clever one. First, remember that ministers have the right to “make and unmake” treaties using their prerogative powers. Then look at the 1972 Act and you’ll see it gives legal effect to the rights created by the EU treaties that are in force “from time to time”. The legislation is described as “ambulatory”, which means it walks around a bit and even marches into the future.

So, the argument goes, if the government ratifies a new treaty then the 1972 Act will immediately give effect to it under domestic law (in other words, under the UK’s own legal systems). Similarly, if an old treaty is superseded or withdrawn, it will no longer have effect in the UK. There’s no need for a separate Act of Parliament each time.

Fine, says the government. We don’t need Parliament’s permission to withdraw a treaty that’s no longer needed. As soon as we make or unmake a treaty, the laws of the United Kingdom will automatically change to give effect to the new structure. So what’s to stop us withdrawing from all the EU treaties? We’re only using our prerogative powers. And we are not interfering with parliamentary sovereignty because the 1972 Act will remain untouched. That Act will still give effect to whatever EU treaties are in force from time to time. True, it will do nothing if there are no longer any treaties in force. The Act would be what the lawyers describe as an “empty vessel”. But, as a law, it will still be there on the statute book.

This is such a ridiculous argument that it could only have come from an academic. Professor John Finnis FBA says the 1972 Act is no different from the legislation dealing with double-taxation agreements, under which you can avoid paying tax only for as long as you have to pay an equivalent tax in another country. So, says James Eadie QC in paragraph 50 of his written arguments, the government can simply withdraw from the treaty in question and people will lose their rights under domestic law.

Responding for Miller, Lord Pannick QC, in paragraph 29(5) of his written arguments, accepts that Parliament could have done something similar with the 1972 Act if it had said so clearly. But “the context and content of the 1972 Act [and later legislation] are very different to those relating to double-taxation treaties”.

Pannick rejects the government’s assertion that the 1972 Act was merely a “conduit” by which the government implemented its international obligations. “Prerogative powers cannot lawfully be used on the international plane to destroy the rights recognised by Parliament as part of domestic law,” he says.

“By the enactment of the 1972 Act, Parliament intended to introduce profound legal changes of constitutional significance,” Pannick continues. “It is especially unlikely in such context that Parliament intended to leave it in the hands of the Executive to defeat or frustrate — by the use of prerogative powers — the statutory rights this created.”

Pannick’s arguments strike me as much more grounded in the real world. So too are the arguments put by Dominic Chambers QC for the second respondent, Deir Dos Santos.

Take the European Union Referendum Act 2015, under which the referendum was held. That said nothing about the consequences of a “leave” vote, according to the government, because there was no need to. So it left the scope of the prerogative powers unaffected.

But if prerogative powers are all the government needs, says Chambers, then the UK could have withdrawn from the EU at any time — without a referendum, without scrutiny from Parliament and without anything else. “That is a startling result,” he adds, “and it cannot be right.” Chambers points out that Parliament chose not to say that the Brexit referendum would be legally binding — unlike, for example, the alternative vote referendum in 2001.

Like Eadie, Pannick and Chambers also refer to academic blogs — though they don’t rely on them in the way that the government seems to. Less than a decade ago, the views of university professors and other leading academics would not have been known until they were published in learned journals several months after the courts had delivered judgment. A century before that, writers’ views would not have been cited in court until they became “authorities” — which used to mean the author had to be dead.

Fortunately, that changed (see paragraph 113 of this judgment). But the Miller case is among the first to have been argued not only by the two leading counsel (Eadie and Pannick, both from Blackstone Chambers) but also by their proxies in the blogosphere. And it’s the first I know of to include extensive extracts from academic blogs as part of leading counsel’s written submissions.

In all, 13 silks are scheduled to speak during the four-day hearing. One has been allocated just 15 minutes — before the lunch-break — though that would be regarded as quite generous by the US Supreme Court and it’s more than some of the other interveners, who get to make written submissions only.

It’s the government’s appeal, of course, and so its counsel will speak first. Jeremy Wright QC will introduce the Brexit Secretary’s arguments, before handing over to Eadie who’ll handle the bulk of the government’s submissions. He’ll be supported by Lord Keen of Elie QC (also from Blackstone), who’s the Advocate General for Scotland — the UK government’s senior Scottish law officer — as well as being Lords spokesperson for the Ministry of Justice. Keen is expected to deal with the devolution issues.

Wright, Eadie and Keen will share the first one-and-a-half days of the hearing. Eadie also has one-and-a-half hours to reply on Thursday afternoon.

Tuesday afternoon begins with submissions by John Larkin QC, who’s Attorney General for Northern Ireland. He supports the UK government in arguing that notice can be given under Article 50 without the need for legislation. Pannick’s appearance runs from Tuesday afternoon until noon on Wednesday (although he often takes less time than allocated). He is followed by Chambers, representing the second respondent.

Then we get to the Northern Ireland applicants. Northern Ireland voted to remain in the EU by 56% to 44% (in contrast to UK as a whole which voted leave by 52% to 48%).

The first case is brought by Stephen Agnew, heading a group of Northern Ireland politicians and others. They sought judicial review of the UK government’s plans, arguing not only that an Act of the Westminster Parliament was required but also that a legislative consent motion was needed from the Northern Ireland Assembly. By convention, the UK government does not legislate for Northern Ireland, Scotland, or Wales without first seeking the consent of their legislatures.

In October, the High Court in Northern Ireland dismissed Agnew’s application for judicial review. However, the Northern Ireland Attorney General referred four questions — referred to as “devolution issues” — to the Supreme Court. Agnew is represented by David Scoffield QC.

The second Northern Ireland case is brought by Raymond McCord, represented by Ronan Lavery QC. His argument is that triggering Article 50 impedes the operation of section 1 of the Northern Ireland Act 1998, which says that Northern Ireland will remain part of the United Kingdom unless a majority of its people vote for it to become part of a united Ireland.

McCord’s argument is that triggering Brexit, either through the prerogative or by legislation, will amount to a fundamental change in the constitutional status of Northern Ireland. That requires the consent of the people under section 1, read with the Good Friday Agreement of 1998. Such consent has not been granted and any notice given under Article 50 would not be in accordance with the UK’s constitutional requirements, as Article 50 requires.

The High Court in Northern Ireland refused McCord permission to bring an application for judicial review but the issue was referred to the Supreme Court by the Northern Ireland Court of Appeal.

Larkin will already have responded to these arguments. His position is that nothing in the relevant Northern Ireland law requires an Act of the UK Parliament before the government can give notice under Article 50. Even if it did, the consent of the Northern Ireland Assembly would not be required. Nor, he adds, do the relevant laws and agreements prevent the government from using its prerogative powers.

Up next is the Lord Advocate, James Wolffe QC. Scotland backed the remain side in the referendum by 62% to 38% and the SNP-led government seeks to oppose the UK government’s appeal.

Article 50 permits a state to withdraw from the EU “in accordance with its own constitutional requirements”. Under the UK’s uncodified constitution, the Lord Advocate says these requirements include conventions as well as law. Conventions are rules of behaviour that are accepted as binding by all concerned.

One such convention, the Sewel convention, is acknowledged in the Scotland Act 1998. The Act says that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. When required, that consent is obtained by asking the Scottish Parliament to pass a legislative consent motion.

The Lord Advocate argues that a bill authorising the UK to give notice under Article 50 would change the lawmaking powers of the Scottish Parliament and therefore a legislative consent motion would be needed.

Using the prerogative to trigger Article 50 would, the Lord Advocate concludes, “circumvent the requirement for the UK and Scottish Parliaments to address whether, under established constitutional convention, the consent of the Scottish Parliament should be sought for such changes”.

Keen, the Advocate General for Scotland, will already have argued that no legislative consent motion is needed.

Wolffe will be followed by Richard Gordon QC, representing Mick Antoniw, Counsel General for Wales. He agrees that prerogative powers cannot be used to affect statutes with constitutional status. He also argues that triggering Brexit would engage the Sewel convention.

This applies to Wales and Northern Ireland as it does to Scotland. It is not yet included in legislation covering Wales, but the Wales Bill, currently before the UK Parliament, would add it to the Wales Act 2006 in similar terms to the Scotland Act.

Like the Lord Advocate, the Counsel General is not arguing that a devolved assembly has a veto on legislation passed by the UK Parliament. “He is therefore not asking the court to enforce the convention,” his counsel says. “Rather, he submits that there can be no prerogative power to short-circuit the Sewel convention which in giving proper respect to, and grounding a process of dialogue with, the devolved legislatures is a fundamental part of the United Kingdom’s devolution framework.”

That takes us to Thursday lunchtime and interventions by three groups of interested parties. The group headed by Graham Pigney (represented by Helen Mountfield QC) are concerned that their status as EU citizens may be removed without parliamentary authority and oversight. The anonymous “AB parties” (represented by Manjit Gill QC) are nationals of other European countries living in the UK. Finally, George Birnie heads a group of “expat interveners” (represented by Patrick Green QC) who have interests in other EU states. All of them broadly support Pannick’s arguments and argue that the government’s appeal should be dismissed.

A ruling is expected in January. The three judges who sat in the High Court managed to produce a single, unanimous judgment. It seems too much to hope that all 11 justices of the Supreme Court will agree on all points. But it would be very helpful to have at least a majority judgment covering the points on which as many members of the court as possible can agree.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa.