As a result of that reading I expect the Supreme Court's judgement to block Brexit, effectively for ever.
Of course, the Court's judgement won't be expressed in such direct terms.
One of the unanticipated effects of the Referendum vote on 23rd June 2016 will be that the UK constitution will be changed for ever.
Expressed more precisely I expect that the Supreme Court's judgement on the Government's Brexit appeal will show that the UK constitution has already changed radically and that the UK consitution is not what it has traditionally been thought to be.
The UK constitution will be shown to be radically different from what Theresa May and Nigel Farage assume it to be.
The so-called Royal Prerogative which Theresa May and David Davis seek to rely on will be shown to be an anti-democratic, unconstitutional, outmoded anachronism, although I'm sure that the Supreme Court won't use that terminology.
And the High Court won't come out of it too well either.
I expect the attribution by the High Court of supposed absolute sovereignty to the Westminster Parliament will be shown to be suspect and overly simplistic. The World has changed radically since the time of Dicey.
The historical notion of absolute sovereignty resting with "the Queen in Parliament" will, I suggest, be shown to be dead.
Of course, that notion was itself a political fudge which has lasted largely unchallenged for centuries.
The sovereignty of the Westminster Parliament is more limited that many have traditionally thought.
Sovereignty in the new United Kingdom is shared.
The devolved Scottish Parliament, Northern Ireland Assembly and Welsh Assembly now have a share in sovereignty.
I expect the Supreme Court to indicate that we won't be leaving the European Union without the consent of the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly.
The Lord Advocate argues in his Written Submission that a Legislative Consent Motion by the Scottish Parliament is required before Parliament passes any Act which claims to make an Article 50 decision.
If the Scottish Parliament votes against a Legislative Consent Motion we enter uncharted constitutional territory.
The situation in Northern Ireland is even more interesting .
In Northern Ireland sovereignty rests with the people.
In my submission to the Court which formed part of my application to intervene I briefly mentioned Section 1 of the Northern Ireland Act 1998.
1 Status of Northern Ireland.(1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.
In his written submission to the Supreme Court Raymond McCord beautifully argues that sovereignty in Northern Ireland effectively rests with the people.
Of course the elegance of McCord's argument goes far beyond the simple summary statement that I have just put forward.
I expect the Supreme Court to rule that that United Kingdom cannot leave the European Union without the consent of the people of Northern Ireland.
The effect of the expected recognition of the quasi-federal constitution of the United Kingdom is potentially very annoying for the Brexit Bullies.
If the Supreme Court rules as I expect it to then an English majority will not lawfully be able to take the United Kingdom out of the European Union against the wishes of Scotland and Northern Ireland.
The Brexiteers won't be able to do so because the United Kingdom already has a quasi-federal constitution.
Viewed from the perspective of a Scot who favours Scottish Independence, the likely judgement from the Supreme Court is a welcome step away from an English monopoly (or quasi-monopoly) on power which, for at least much of the time, undemocratically imposes English views on the other nations in the United Kingdom.
Will the anticipated Supreme Court ruling really block Brexit for ever?
In theory, No.
It's theoretically possible that Scotland could, one day, have a Parliament which is willing to countenance Brexit. I don't expect that in my lifetime.
In Northern Ireland, will the people choose to re-impose a hard border between Northern Ireland and the Republic? I can't see it happening. Not in my lifetime. Not ever.
But, all this begs the question, "Will the Supreme Court rule as I expect it to?".
As someone once said, "Predictions are difficult, particularly with respect to the future".
So I could be wrong about what the Supreme Court is going to decide.
However, if the Supreme Court decides other than I expect it to then I think that appeals to the Court of Justice of the European Union (methodologically less than easy) and the European Court of Human Rights seem to me to be inevitable.
But if I'm right about what the Supreme Court judgement is going to be then, as the Chinese curse indicates we will be living in very interesting times indeed.
Will Theresa May resign? She can't go on endlessly repeating the fatuous "Brexit means Brexit", can she? If she doesn't resign, every time she attends the European Council she'll be laughed out of court. And surely even Jeremy Corbyn could have endless fun at Prime Minister's Questions about Theresa May's stunning ineptitude regarding Brexit.
Will Nigel Farage have a temper tantrum to top all temper tantrums? I think that is very likely.
It's a little like a divorce. You might want just to walk away because the relationship isn't perfect but the Law says it's more complicated than that.
The same applies to Brexit.
The United Kingdom can't just walk away on the basis of an arguably unlawful Referendum vote on 23rd June 2016.
Theresa May's leadership bid will be shown to be a sordid act of self-advancing political opportunism which puts the country and the rule of Law at risk.
When will the Supreme Court rule?
Will it be January 2017 as many commentators expect?
Or will it be much later?
I've already asked the Supreme Court to refer the case to the Court of Justice of the European Union for a preliminary opinion of the CJEU.
See Article 267 requires the Supreme Court to refer the Brexit case to the Court of Justice of the European Union
It remains my view that the Supreme Court, if it is to act properly, must seek a preliminary opinion from the CJEU.
If that's the case then it could be late 2017 or even into 2018 before the Supreme Court issues its final judgement on David Davis's appeal to the Supreme Court.
So, will January 2017 bring us a Supreme Court judgement like the one I expect and the door will be slammed shut on Brexit, at least in the short term?
Or will the door be opened to triggering Brexit by the end of March 2017?
Or will the Supreme Court decline to rule definitively until such time as it has received the preliminary opinion of the Court of Justice of the European Union?
A very thorough consideration of the possible outcomes, Sir. I have one slight quibble in that I had to copy and paste to Open Office before I could read it!
ReplyDeleteReally interesting read. I am not an expert and cannot comment on the quasi-federalist constitution of the UK, but the fact that one Nation should not be able to bully the others in the Union seems common sense to me.
ReplyDeleteOr will the Government withdraw their Appeal and try to rush the 3 line Bill through Parliament quickly over Christmas, while we are not looking? But still the Lords could sabotage.
ReplyDeleteThe NI stuff is a red herring. The quoted passages refer to NI leaving the UK, not the UK leaving the EU. The UK as a whole voted in the referendum.
ReplyDeletePlease sort out the background colours on this page... It is almost impossible to read with this background, which is a great shame!
ReplyDeleteAnyhow...
Fascinating article, fascinating debate. All heading in the right direction. However, just for a moment, consider the implications of what is being discussed as constitutional rights for Scotland, or N.Ireland were discussed as constitutional rights for local communities and individuals.
I understand that there are many people who would say that there are no such rights for individuals.
However the fact is that there are many thousands of individuals who claim such rights for themselves regardless. They will NEVER consent to a mere national government who attempts to meddle with either their human rights or their citizenship because they see that as theirs, outside of government jurisdiction, because that is the nature of and point behind human rights in the first place.
Keep the debate rolling folks, however rest assured that it is not just Scotland and Ireland that will throw these spanners in the works of totalitarian manipulation. There are thousands of free individuals who take more or less the same stand point, individually, as these regional assemblies are taking for their regions. There will not even be an England to govern outside of the EU. Governments cannot govern without the consent of the people they purport to represent. Attempting to destroy peoples rights to self determination is not a good recipe for success when your actual role is to protect those same rights.
Exactly how do you predict England will become ungovernable? I'm asking because the protests so far (lobbying MPs, the Lords etc) are too easy to ignore. No marches have been organised. I'm willing to come back from the other end of Europe if necessary.
DeleteJust to clarify... I'm not actually condoning or condemning the above. I simply wanted to bring it to the debate that such a factor and point of view does exist and will have to be reckoned with.
DeleteI would imagine through millions of small and not so small acts of civil disobedience and probably through a campaign of non recognition of any group claiming to represent part, or all, of present day britain outside of the constitutional umbrella of the EU and the charter of human rights.
A well argued case, with appropriate disclaimers. What I do think it misses, and obviously so as it is so difficult and tortuous, is how the writer considers that May and Brexiters will react when the Supreme Court rules.
ReplyDeleteAs far as Brexiters,I cannot see less then the disgusting hatred poured out at the persons of the Judges and the High court at the decision, by the Express, Mail, Telegraph that should then have been taken to task by the government. I also see the rabid right waving their pitchforks.
What is less clear is what recourse or actions the government will take, opinions please?
If the Supreme Court should rule as indicated above, all the Government would have to do is to adopt an Act which adds the formula: "The provisions of this Act shall apply regardless of any provision to the contrary in the Acts devolving powers to Scotland, Wales and Northern Ireland". Because of the principle of Parliamentary sovereignty, the courts would have to observe this. There is a parallel with the position of EU legislation in this country. The European Court of Justice, the House of Lords and Court of Appeal have all stipulated (a) that EU law takes precedence over UK law, and (b) that the principle of "implied repeal" (i.e. that a later Act of Parliament that collides with the provisions of an earlier Act automatically and impliedly takes precedence) does not apply in this case; however, the principle of express repeal continues to apply, as was made clear by the 2011 European Union Act, which clearly stated that EU law only applies in the country with Parliamentary approval, and that such approval can always be withdrawn by Parliament. That brings me to the other point raised by the author - if the European Court of Justice were to declare the position of the British Parliament to be illegal, all the latter would have to do is to invalidate the jurisdiction of the ECJ - once again, the courts would have to fall in line because of the principle of express repeal. That is, even if the ECJ were to hear the case at all, as it is difficult to see what legal basis there would be in the EU Treaties for such an action, particularly in view of the terseness with which Article 50 is worded. I am therefore rather sceptical about the author's findings.
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