Update - Statement from Supreme Court 16th November
Update 19th November - other views
We have come along way from the "Kilmuir rules" that prevented serving members of the judiciary talking publicly about their work - Post of 2nd December 2011.
Lady Hale, Deputy President of the Supreme Court of the UK, has delivered the Sultan Azlan Shah Lecure 2016 entitled The Supreme Court: Guardian of the Constitution?
There is a considerable amount that is of general interest in the speech. Lady Hale claims
that the court acts as guardian of the constitution in three ways: (1) ruling on the validity of laws enacted by the devolved legislatures of Scotland, Wales and Northern Ireland; (2) keeping government within the powers given to it by Parliament and (3) protecting fundamental rights of the individual against encroachment by the State. The speech notes that the court is not empowered to "strike down" any Act of Parliament and that is not a power Lady Hale wishes it to have.
The speech continues to look at how statutory interpretation might protect fundamental rights and the rule of law by means of applying the principle of legality (requiring clear words in legislation to override fundamental rights) and the development of the rule that "constitutional statutes" are not amenable to implied repeal. The European Communities Act 1972 is such a "constitutional" statute according to Lady Hale. (I think that very few would argue with that).
It is where Her Ladyship moves on to look at the Brexit case that problems may begin since Lady Hale will be one of the justices to sit on the government's appeal in the Miller (Brexit) case. It is unusual (and generally inadvisable) for a sitting judge to talk about a pending case. In the speech, Lady Hale said that the European Union Referendum Act 2015 did not produce a result that was legally binding on Parliament. It has been argued by some in the political arena that the referendum result combined with things said in Parliament during the debates leading to the Referendum Act do amount to a binding decision to leave the EU.
In the High Court this point was not argued. If it were to be argued, it would be necessary to establish how precisely a legally binding outcome was achieved given that Article 50 requires a "decision in accordance with constitutional requirements" which is then notified to the European Council. There is certainly nothing expressly in the 2015 Act to require anyone to do anything at all about the outcome of the referendum and this is a major contrast to the legislation for the Alternative Vote referendum held in 2011 - Parliamentary Voting System and Constituencies Act 2011. It is a pity that Parliament did not address what was to actually happen when it enacted the 2015 Act since the expense and turmoil of the present litigation might well have been avoided.
Lady Hale went on to note that the case is about the constitutional division of responsibility and power between the Government and Parliament. Article 50 of the Treaty on European Union (TEU) is then described in uncontroversial terms. For example, the speech avoids entirely the question of revocability of an Article 50 notice.
Near the end of the lecture, Lady Hale said:
"The issue is whether giving that notification falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament. Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown ..... . The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more.
The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State? We do not have a written Constitution to tell us the answer ...."
and a little later, Lady Hale notes:
"Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts."
A justiciability argument was not advanced in the High Court. Also, there was no question in the High Court about HOW Parliament would approve the giving of notice. At no point did the court say that an Act of Parliament would be necessary. Furthermore, there was no issue raised as to the precise form that any legislation, should it be requred, would have to take. In short, the HOW was a matter for Parliament. However one looks at this, it is hard to believe that a comprehensive replacement for the 1972 Act would be required at this stage though eventually it would be.
A most interesting lecture and there is little doubt that in some quarters it will be thought that Her Ladyship went too far in discussing a case on which she is to sit. It sails somewhat close to the wind particularly when Lady Hale referred to the form that legislation might have to take but, as far as I can see, the lecture gave nothing away that is not already in the public domain. Let's see how it goes!
Referendums and Parliamentary Democracy
Statement 16th November:
The Supreme Court has issued a statement
"Lady Hale was simply presenting the arguments from both sides of the
Article 50 appeal in an impartial way for an audience of law students,
as part of a wider lecture on constitutional law. It is entirely proper
for serving judges to set out the arguments in high profile cases to
help public understanding of the legal issues, as long as it is done in
an even-handed way.
One of the questions raised in these proceedings is what form of
legislation would be necessary for Parliament to be able to lawfully
trigger Article 50, if the government loses its appeal. A number of
politicians have raised the same question. Though it was not dealt with
explicitly in the High Court judgment, it is not a new issue. In no way
was Lady Hale offering a view on what the likely outcome might be."
The last paragraph is interesting. Even if the Supreme Court upholds the High Court's decision, it is not at all clear why the "form" any legislation is a matter for the court as opposed to Parliament.
The Daily Telegraph - Charles Moore - Time to say farewell to judges who hand down opinion on Europe - some emphasis in this article that there may be an appearance of bias because Lady Hale mentioned the form that legislation may have to take.
Barrister blogger - Lady Hale is a great judge but she made a mistake in Malaysia - this blog expresses the view that, if requested to do so by the Attorney-General, Lady Hale should stand aside.