The Brexit High Court challenge: why the Lord Chief Justice has opened Pandora’s box

Welcome to the constitutional aftershocks of the leave vote

When Pandora opened the box she had been told never to open, she released all the evils inside upon the world. By his decision in the High Court on 3rd November, Lord Thomas of Cwmgiedd may well have done the same regarding what could be the British constitution’s impending implosion.

This is not the fault of Lord Thomas, or his two colleagues, who ruled on the legal challenge brought by claimant Gina Miller against the government’s intention to invoke Article 50 — which starts the formal process of leaving the European Union — without holding a vote in parliament.

Lord Thomas made the only decision he could. Article 50 describes the process of withdrawal as taking place by the normal constitutional arrangements of the member state in question. Ordinarily, since Article 50 is part of a treaty, the government could use powers of royal prerogative. As the treaty in question, the Treaty of Lisbon, is an EU treaty that means a vote in parliament, even if parliament would have got its vote anyway when it came to repealing the European Communities Act 1972 — the act that means EU law is incorporated into, and supreme over, domestic law. A quick look at the European Union Act of 2011 will confirm this, with repeated mentions of how a vote in parliament must take place, even if no one at the time ever thought the UK would vote to leave the EU, something made clear by the fact that act deals with treaties concerning further integration.

The purpose of that act was to cover all changes to EU treaties, and as acts of parliament can only be undone by acts of parliament, parliament was going to get a vote anyway. You could argue that once Article 50 had been invoked parliament would only have been able to decide whether it was a soft Brexit or a hard Brexit. That is now immaterial, for not only will parliament get a say much sooner but Lord Thomas’s ruling will serve to expose the constitutional fault lines in a way they may not be able to withstand.

Central to this is the question of just how supreme parliament actually is. By passing the European Communities Act, parliament effectively fettered itself, subject to a kind of curious mirage coming into play. In theory all EU law was being enacted into UK law by acts of parliament, so parliament could still appear sovereign. As the Factortame case proved in the early 1990s though, the EU could, through the European Court of Justice, strike down UK laws whenever they weren’t compatible with European rulings. This happened when the Merchant Shipping Act infringed the rights of Spanish fishermen to form a shell company to fish in UK waters and beat quotas.


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So parliament is still supreme, except before the European courts. This issue justifiably agitated Leave campaigners who wanted to make parliament truly sovereign again. That parliament may now be in the position to reaffirm the fetters that come from Europe by exercising its sovereignty to do so is an irony that already has die hard Remainers foaming at the mouth. Unfortunately for them there remains the fact that parliament is also bound by the will of the people who elected it, to follow their decisions.

This is why judicial review allows the courts to challenge the executive but not parliament. Because judges are not elected and aren’t accountable to the people in the same way that MPs are, their power to challenge decisions is limited to reviewing the processes used to reach those decisions rather than the decision itself. So the government’s intention not to hold a vote in parliament before invoking Article 50 was a flawed process rather than a flawed decision. Should the Supreme Court affirm Lord Thomas’s decision — and given the correct nature of his decision in a strictly legal sense, it’s hard to see how they won’t — then the extent to which parliament truly is supreme will be tested.

There are two reasons for this, the first legal, the second political, both of them constitutional.

On the first issue, any decision by the Supreme Court to uphold the need for parliament to have a vote will lead to further judicial challenge if parliament votes against invoking Article 50, even if only at the present time. As those who voted to leave will see it — and I should declare here that I voted leave and still very much believe in that decision — there was a legitimate expectation that the outcome of the vote in the referendum would be honoured. The government of David Cameron said so, and he duly fell on his sword when he lost. Theresa May’s succeeding administration has since said ‘Brexit means Brexit’ — a statement of clear meaning, if not particularly detailed.

The second issue is far more extensive. If, or rather when, parliament gets its vote, it will be a de facto vote of confidence in or against the government; if the government loses there will be almost irresistible pressure to hold a general election next year rather than in 2020. This would then bring the Fixed-term Parliaments Act 2011 into play, as to dissolve parliament and call an early election there needs to be either an explicit vote of no confidence in the government and no replacement government formed within two weeks, or else the government would need a hundred more or so MPs than it has to vote to dissolve parliament and hold an early election.

Neither is particularly desirable. On the first, who would form a credible replacement government? Labour wouldn’t be able to form a majority administration even with the SNP and the Liberal Democrats backing it, a development that wouldn’t inspire confidence from either the country or the markets. If there was an early election, the Tories would win, and Theresa May would have an actual mandate for Brexit.

On the second, May’s government will not get those hundred or so opposition MPs, since none of the opposition parties have anything to gain but humiliation from an early election (Ruth Davidson’s Scottish Tories might win some seats from the SNP, while Labour would simply be skewered on its own divisions). That would leave a millstone hanging around the government’s neck as the Fixed-term Parliaments Act comes to look like a piece of short term political expediency. More to the point, the evolutionary nature of the British constitution would be revealed for being as much its weakness as its strength. Evolution doesn’t always produce the strongest of the fittest, and the constitution is too vulnerable to opportunism on the part of governments more concerned with advantage in the present than considering what the repercussions might be in the future.

The result is that the country risks heading into a vicious constitutional loop where the executive and the legislature come to be at permanent loggerheads, resolved only when the 2020 election finally comes around. The courts will be powerless to do anything but rule on technicalities and all the while the people, who should not be required to accept legal technicalities given their expectation that ‘Brexit means Brexit’, will lose faith in both their elected representatives and in democracy itself.

With any luck of course this won’t happen. Parliament will respect the will of the electorate — who voted by a clear majority to leave the EU — by voting in favour of triggering Article 50, with parliament free to thrash out the issue of repealing the European Communities Act at a later date. The fault lines in the constitution though have already been exposed for all to see, and constitutional experts will have much to debate in the coming years, especially on the issue of parliamentary supremacy.

For in truth parliament is not supreme. It has abrogated certain responsibilities and authorities, first to Europe, then to the devolved administrations around the UK.

More to the point, it has always been subject to the will of the people. That’s where it draws its legitimacy from, and in that it understands that when the people express their will, they expect it to be acted upon. So parties that lose elections don’t form governments. Prime Ministers who lose referendums of constitutional importance resign, and parliament acknowledges that the people have a legitimate expectation that their desire to leave the EU will be acknowledged and acted upon.

Gareth Wood is a Lancaster University graduate. He is now a GDL student at the University of Law.

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46 Comments

Bumblebee

Indeed. ‘Brexit means Brexit’.

Am I the only one who, when hearing this, is reminded of unthinking, vapid feminists reciting ‘no means no’.

(4)(15)
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Just Anonymous

Actually, that’s not correct. It does have a clear meaning, which is simply this:

‘The UK is leaving the European Union.’

True, it doesn’t tell us what the terms of exit will be, but then the Government obviously can’t tell us that, because that depends on what we can negotiate with the EU.

However, May’s point was plainly this: there will be no second referendum. There will be no undermining the result of the ‘first’ referendum. The country voted to leave. The country is going to leave. Remaining is no longer an option.

You may not like that message. But you can’t deny that it was the message.

(6)(3)
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Anonymous

I think I can deny it has a clear meaning. Your interpretation may well be what she intended to say but the words themselves are completely meaningless.

“Pie means pie.” See… utterly pointless, tautological twaddle.

“I’m cooking pie so we’ll have pie for dinner.” That has meaning. Or “pie, in this case, means steak and ale pie”. That also has meaning.

“Brexit means Brexit.” It’s a load of shite and everyone knows it. If she means that, following the referendum, we are leaving the EU regardless of the terms on which we can negotiate such exit then say that. She should state (no matter how moronic it is to completely commit yourself to something regardless of any change in future circumstances or the way in which it has to be done) that no matter what, we are leaving the EU. That has meaning.

“Brexit means Brexit” is a way of using redundant words to say nothing, whilst appearing to say something.

(8)(2)
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Anonymous

This is a useful look at the subject. It’s happily not confined to pure law. The political and electoral implications of the litigation are more significant – and more interesting.

FWIW, I expect this to turn into a damp squib even if the Supreme Court does uphold the Divisional Court judgment. The Commons will just vote through the necessary measure as an emergency (to oppose it would destroy either major party in a General Election) and the Lords will follow suit under threat of abolition or wholesale reform. And quite right too.

(2)(2)
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Anonymous

It’s not only “not confined” to law – it’s also not acquainted with the relevant law. Pretty sure, for example, the author is operating on the mistaken belief that giving notice pursuant to art. 50 is a change to the treaties.

(9)(1)
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Anonymous

Can’t say I see that assumption in the article. In any event, any article on here will be open to attack on the basis of how correctly or thoroughly it discusses the law. These are short pieces, not dissertations.

This isn’t the best guest article published on Legal Cheek, but it’s a long, long way from being the worst.

(0)(0)
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Anonymous

In an attempt at constructive criticism, rather than anything too harsh, I merely suggest the author reads any of the primary sources he has referenced, or attends a constitutional law lecture, or otherwise attempts in some way to obtain some knowledge about this subject. It is sadly lacking in this dire, dire piece.

(13)(2)
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Trumpenyawn

Nice to see you still enjoying pretending to be someone else, trolling a low level legal website. Makes everyone else realise how lucky they are not to be you.

(1)(1)
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Interloper

No, no, no. You are not anything of the sort. You are a delusional fkwit of the first order I’m afraid. The very fact that you used the term “low-T” amply demonstrates this.

Now downtick this !

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(2)(0)
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Anonymous

‘will of the people’ ? Where are the £350 million a week for the NHS then?
Shame that this page provides a platform for the author to manifest his wet nationalistic dreams and aspirations, with a little bit legal jargon mixed into it. The only Pandora’s Box opened by the judgment of Lord Thomas in the High Court Challenge, was one of yet more bigoted attacks against the independence of our judiciary, the claimants and anyone who doesn’t agree that we should revert back to the ‘good old days’ of nationalism and hating the other.

(8)(1)
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Anonymous

We haven’t left the EU yet. The EU payments still have to be made.

The rest of your rant isn’t worth bothering with.

ps I am unshakeably a Remainer. I just can’t bear idiocy from either side.

(1)(3)
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Anonymous

Yes indeed the we have not yet left the EU, but the the claim that the EU payments would be redirected to the NHS once we leave, was repudiated the morning the results were announced.

So in your opinion, expressing concern over and pointing out the deplorable attacks on the Judges and claimants that followed the High Court ruling, amounts to idiocy? makes me question how much of an unshakable Remainer you really are.

(2)(1)
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Anonymous

The amount of grammatical errors in that comment are very amusing for the people of higher intellect. You are definitely a high street solicitor.

(0)(1)
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Anonymous

Nah, s/he’s a self-important student. To people like that shouting and ranting is the only mode of discussion. It’s an attempt to compensate for the sad truth that no one gives a toss about what they have to say.

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Anonymous

If you think the High Court’s ruling was in any way controversial, you lack a basic understanding of constitutional law.

Parliament is supreme. Isn’t that what Brexiteers wanted?

(16)(0)
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Ciaran Goggins

Breathes in deeply, best Royal Artillery parade ground roar “THERE IS NO CONSTITUTION” you live in a de facto police state, wake up and smell the cawfee.

(2)(9)
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Gladiatrix

The problem is that Lord Thomas didn’t make the only decision that he could. There was a perfectly tenable argument to be made that Gina Miller and Deir Dos Santos were out of time because all the information they needed in order to bring a claim was in the public domain on the day that the Referendum Bill received Royal Assent. Any claim for JR could and should have been brought within 30 days of the grant.
If he had been paying attention to the High Court’s own rules as set out in the White Book, he would have invited the Attorney-General to make an application to strike out the application and that would have solved the problem neatly.
It should also be pointed out that this is the same LCJ who didn’t stop to think that his membership of the European Legal Institute might legitimately give rise to a perception of bias issue – something a first year law student could have spotted, and who also sat like a bump on a log while large numbers of the judiciary 1) breached their duty to be politically impartial by making clear their pro-Europe views and 2) publicly insulted the then Lord Chancellor at a dinner in the City. Not only did he do nothing at the time, he has done nothing since either which as he is the Lord Chief Justice one might have thought to be his duty. None of the judges present have been reprimanded and instructed to apologise; the judiciary as a whole has not been reminded of its obligations, and Michael Gove has still not received even the offer of an apology from Lord Thomas.
A cannier Lord Chief Justice would have seen the train thundering towards him in the shape of the Miller/Dos Santos writ and accompanying media interest and got out of its way.

(4)(4)
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Not Amused

One of the main problems with what is happening now is the refusal of the ‘elites’ to admit they actually haven’t been doing very well.

I agree that Thomas has proved a completely useless LCJ – failed to reform the judiciary, failed to improve court standards, failed to get a grip on costs etc. etc.. But it has been like this for quite a while. But we have also had successively weak LCJs and other members of the senior judiciary.

It is no different from the EU which now seems to be in a race with Britain to see whether it can kill itself before we get to actually put them out of their misery.

Broadly speaking the current crop of elites just don’t seem terribly competent. A bit of humility might help. But the more they all go in to full on Marie Antoinette mode the less likely this is to end well.

(0)(6)
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Just Anonymous

“On the first issue, any decision by the Supreme Court to uphold the need for parliament to have a vote will lead to further judicial challenge if parliament votes against invoking Article 50, even if only at the present time. As those who voted to leave will see it … there was a legitimate expectation that the outcome of the vote in the referendum would be honoured.”

A most courageous argument. I think most lawyers would find the suggestion that a ‘legitimate expectation’ could bind the primary legislation Parliament is allowed to pass, rather novel!

(7)(1)
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Interloper

Its’ not just “courageous” is it but actually wrong ?

The party bringing the JR may challenge the decision on the basis of legitimate expectation and various other grounds but…. the respondent asserting his own LE when they are in the position of being challenged ? Yes, a novel perspective to say the very least… 😐

The Executive asserting their rights in JR ? Well, it’s a strange and f’ed up world we are currently living in so nothing would surprise me*

* – I am joking obviously. WTAF ??

(4)(1)
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Anonymous

That depends on whether you think “legitimate expectation” has only a legal meaning and legal application. In this context I took it to mean just that the public expected politicians to carry out the majority decision. That seems unexceptionable for any national referendum, binding in law or not.

(0)(1)
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Interloper

OK fair enough but I think that needed to be stated quite emphatically with the term being a recognised basis of challenge in proceedings etc.

Extending that though, it comes back to Parliament being elected by the people for the people to act on their behalf and to exercise their position as THEY best see possible. Obviously that can be countered by an argument of legitimate government but when people always throw this “will of the people” stuff as far as the referendum concerns – that’s 16m people apparently which is not 52% or anything like. Not only that but these votes were cast on the back of what many of them then did not realise – but are steadily coming to – was a pack of whoppers.. That includes all the various reassurances given by Johnson, Stuart, Gove, Hooey et al.

Obviously you’re going to vehemently disagree with this – as is Not Amused – but there you go.

(1)(0)
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Anonymous

I don’t vehemently disagree at all. I voted ‘in’ and I’m generally against referendums in any case. But it’s hard to see how the usual political mechanism could have allowed any more consensual or commanding outcome.

If a party had stood on a withdrawal policy at a General Election and won it would never have got more than about 40% of the vote. Its manifesto would have included all sorts of other issues too, so untangling the ‘out’ vote would be impossible. Any governmental move to leave the EU would then be just as contested and divisive. At least this way the single question was asked and answered.

As for lies, yes, plenty of those. But that is how politics is conducted and why we don’t trust, and have never trusted, politicians. Any of them.

(1)(0)
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Anonymous

I am particularly looking forward to the courts reviewing the content of legislation that Parliament must pass. I didn’t know the doctrine of legitimate expectations had gone quite so far.

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Anonymous

Part of the issue here is surely the legitimacy of referendums in the UK. The Author has no conception of this issue apparently. If they are a legitimate means of expression of the “voice of the people” then a 2nd referendum has exactly the same weight as the first and so arguements against it are as undemocratic as arguments against the first. If they do not actually have any status in the UK then, as he says, then parliament remains supreme and MPs need to represent their constituents (not only the 52%). Brexiteers would then need to fight a general election on that clear manifesto to provide Brexit (which should have happened in the first place). This is the problem with the introduction of these concepts to the UKs constitution, we have no clear rules around their use which inevitably leads to conflict.

(7)(0)
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Pandora the Explorer

“…the public expected politicians to carry out the majority decision.”

A decision made following a campaign of subterfuge and hypothetical scaremongering (on both sides).

I wonder what legitimate expectation could be gleaned from it? The people voted leave on various premises that will not materialise as promised.

For example, do the people have a legitimate expectation to the £350 million that was supposed to be invested into the NHS (thereby reducing waiting times as was shown in one of the leave campaign videos)?

Seems that all that remains of Brexit are the secret notes saying ‘we don’t know what’s going on’ and the various adjectives describing the sort of Brexit politicians want today: hard, soft, rough, smooth, rigid, flexible…

The one thing the people can rely on is that (most) politicians will conduct themselves capriciously, especially when it comes to their position on societal issues.

(2)(0)
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Anonymous

I don’t get why everyone is so focused on Millers appeal when parliament looks set to wave it through anyway.

Surely the NI appeal as to whether leaving impacts on the Good Friday agreement is more significant. The high court in Belfast merely said that the executive could invoke Art 50 but never commented on the implications.

(1)(0)
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