The Supreme Court’s Brexit ruling is not the victory Gina Miller thinks it is

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By Gareth Wood on

It just shows the constitution needs an overhaul, badly


Thanks to a decision by eight of the eleven Supreme Court justices, the government had to consult parliament on triggering Article 50 and beginning the formal process of leaving the European Union.

Not that, given how torrid a time the government’s lawyers had at the hands of Lord Pannick QC and his associates, there was ever any doubt as to the outcome. Even Theresa May accepted that, having already held a vote in which parliament overwhelmingly ratified the vote to leave the EU in the weeks before Christmas, as well as happily declaring that parliament would be given a vote on the final terms.

The real point of this case then was for no greater purpose than affirming it would be constitutional business as usual, with the supremacy of the Westminster parliament over not just the executive, but also the devolved administrations in Scotland, Wales and Northern Ireland being reaffirmed. The judgment will be most of interest to law students and their teachers (though God help any law student expected to wade through the near century of pages that make up this judgment), but at a cost that may be of interest to taxpayers.

That said, there will still be plenty for constitutional scholars to get their teeth into. With a judgment that covers everything from the Case of Proclamations to Alternative Voting Provisions by way of De Keyser’s Royal Hotel, the judgment is a whirlwind tour through British constitutional history — but it is hardly the great victory for the constitution that Gina Miller made it out to be.

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For one thing the case had already been superseded by, first, the vote effectively ratifying Brexit, and second, by May’s promise to give parliament a vote on the final terms of negotiations between the UK and the EU. This not to mention that the second paragraph of the brevity-inspired Withdrawal from the European Union Bill states that none of the provisions in the European Communities Act 1972 (ECA) are applicable in any way shape or form.

So far from being a great victory for the constitution, this case has demonstrated that if the government can’t leap over a constitutional hurdle, it can just pass legislation to remove it from existence. Additionally, it is the government, and not the opposition, that is reaping a political dividend from the aftermath of this case, given that Labour’s shadow cabinet looks set to return to its favourite game of who can resign first.

Indeed, apart from the argument I made in my original article on this case (that there was no point in this case being brought since parliament was always going to get a vote on leaving the EU), in form of repealing the ECA, there are only two other aspects of this case that are worthy of note.

One is that the main irony here is that Lord Reed, Lord Carnwath and Lord Hughes, who dissented from the majority judgment, were also the ones holding the door of hope open to those who want the UK to stay in the EU.

Lord Hughes in particular discussed an interesting possibility. According to his judgment, the ECA did not need to be repealed, merely suspended, since its operation depended on the UK’s accession to the various EU treaties. Since the UK would be entering into formal negotiations to leave the EU, it would no longer accede to those treaties, and the ECA would be reduced to a state of de facto obsolescence. It would however, still be on the statute books. So if the UK ever decided to rejoin the EU, the legal framework would already be in place for it to do so, making a reversal of the decision to leave that much simpler.

By requiring a vote in parliament however, the ECA is now much more likely to be repealed, and so the efforts of claimants Mrs Miller and Mr Dos Santos will be to ensure a more complete divorce from the EU now takes place.

Two, and again this is going back to an argument I made in my original article on this case, the constitution of this country is long overdue a reckoning.

When Supreme Court justices are calling upon cases that are well over four hundred years old for arguments over whether or not monarchs can simply create new powers for themselves (even though Her Majesty has wisely steered clear of the philosophical and political morass that constituted the debates over Brexit), intermingled with questions over whether or not the Bill of Rights can be of any clarity, then what is really being said is that the constitution needs an overhaul. Badly.

In any event, the legalistic farce that this case started is set to continue.

Jolyon Maugham QC, a tax barrister from London, is set to move the stage from the Supreme Court to the Irish High Court in Dublin, where he plans to bring a case against the Irish state over the fact that the UK has been illegally excluded from various EU meetings since shortly after the Brexit vote. Mr Maugham hopes that this case will be referred by the Irish courts to the European Court of Justice (ECJ), given it is really a case against the whole of the EU rather than the Irish. Since it can take up to two years for the ECJ to give a ruling on matters referred to it by the national courts don’t be surprised if the UK has left the EU by then, rendering any judgment of the ECJ rather moot.

Gareth Wood is a graduate in European Politics Society and Culture from Lancaster University. He is now studying the GDL at the University of Law.

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