Brexit: supreme logic required

Much has been written about the Government’s appeal to the Supreme Court in the Brexit case. Political commentators tell us that the appeal is very likely to fail. Many lawyers think otherwise.

Decisions are often reversed on appeal. But this is no ordinary case … The logic is deceptive.

The nub of the High Court’s decision was that triggering Article 50 would remove rights granted under the European Communities Act 1972 (“the ECA”). Since it is well-established that rights given to UK citizens by an act of parliament cannot be withdrawn without parliament giving its assent, it followed that Article 50 cannot lawfully be triggered by the Executive – ie Government – acting on its own authority (under “royal prerogative”), contrary to the position taken by the Brexitary of State.

Seems simple enough. But the logic, I suggest, is deceptive. Apply this simple analysis:

  • either the ECA was sufficient on its own to give UK citizens certain rights – in which case, neither the triggering of Article 50 nor leaving the EU would take away those rights;
  • or it was the ECA in conjunction with membership of the EU which gave UK citizens those rights – in which case the ECA gave rights which were conditional on the UK becoming a member of the EU (or the EEC as it was at the time). Article 50 would restore the underlying condition to the state it was in at the time the Act was passed (several months prior to the UK’s accession to the EU); it would not reverse any rights granted by the Act.

Decisions are often reversed on appeal. But this is no ordinary case. It is alarming that there might be a fundamental flaw – legal or logical – in a significant constitutional judgment delivered by three judges of such seniority: the Lord Chief Justice and the Master of the Rolls, often described as the two most senior judges in England and Wales (but not the UK’s most senior; that ranking is held by the justices of the Supreme Court), siting with Lord Justice Sales who is no also-ran in the judicial stakes.

It now falls to the eleven justices of the Supreme Court to re-examine the case, including the particular logic point described above (see paragraphs 6-11 of the Government’s written case). In an unprecedented step, it has been decided that all members of the court should sit in judgment. It is fortunate that one of the 12 seats is currently vacant or there would be the possibility of a six-all draw.

The range of legal arguments in this area appears to be extensive and highly complex. If the original decision is affirmed, I hope it is articulated more, er, persuasively this time around.

[Update 24 January 2017: The Supreme Court has upheld the original decision. The reasons are available in full and in summary. The rationale seems (to me) rather clearer than the lower court’s. In essence, the Supreme Court’s focus is not on rights granted by the ECA, but on the status of EU law. In the words of the President of the Supreme Court: “The [ECA] makes EU law an independent source of UK law until Parliament decides otherwise. Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off.”

Legal academics may continue to debate the decision. Indeed, three members of the Supreme Court gave dissenting judgments (starting at paragraph 243 of the judgment).]