Brexit: what role do the courts have to play?

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Judicial review proceedings have been instituted challenging the power of the Prime Minister to activate Article 50 of the Lisbon Treaty without the prior consent and authority of Parliament. In the first of a series of personal opinion pieces looking at the spectrum of views within this contentious area, Stanley Brodie QC argues the courts have no role to play in deciding the fate of Brexit.


Parliament is sovereign; in the end that is where political power resides. Parliament decided to hold the EU Referendum and it has got the nation’s answer; as a matter of politics, it must obey the will of the British people by making Brexit successfully happen. The Prime Minister understands that, declaring ‘Brexit means Brexit’. Not everyone agrees.

After the results of the Referendum became known, there was a vigorous expression of disappointment and disbelief from the Remain campaign and its supporters. Even before the success of the Brexit campaign, there was talk in the media that, in the event of Brexit winning, the decision could be neutralised by a majority of MPs in the House of Commons. It was at that time fairly certain that there were about 350 MPs at least who would vote to remain in the EU; and so, it was said, they could be mobilised after the event to overturn an adverse referendum decision. Remain Europhiles could not believe they had lost; and ironically most Eurosceptics could not believe they had won, decisively. So the fury and grief in the Remain camp became palpable, with senior figures refusing to accept the verdict with good grace, and instead speaking of ways and means to circumvent or overturn it. Lord Heseltine, a lifelong Europhile said that the referendum verdict could be overturned by Parliament, as it was sovereign and the referendum was not.

There is no doubt that legally and constitutionally Lord Heseltine was completely right about the sovereignty of Parliament; a majority of MPs in the House of Commons could vote to overturn the Brexit verdict, and legislate instead for the United Kingdom to remain within the EU. But while Parliament may have that political and legislative power, is it likely that Parliament would exercise its powers in that way?

First, such a decision would mean that 350 MPs could overrule and neutralise the majority will of over 17 million British citizens. This would be suggesting that those voters were foolish and unwise; whereas 16 million Remain voters were sagacious. That would be viewed as an insult to the British people as a whole which serving MPs might not be willing to support, especially those representing areas of the United Kingdom where Brexit voters predominate.

Second, Parliament itself would risk looking pretty ridiculous; it would be an odd way of promoting and protecting democracy. The European Union Referendum Act 2015 had the support of 544 MPs, the majority of whom, it seems, may have supported Remain; but at the time they must have been conscious of the national support for Brexit and its real chance of success. Parliament would be perceived as being willing to uphold its own Referendum Act only as long as it got the verdict it wanted.

The EU is frequently criticised for its democratic deficit, in as much as it is not accountable to an electorate. The European politicians and civil servants in Brussels would look on in disbelief at the misuse of Parliamentary sovereignty entailed in frustrating the Brexit outcome. Parliament may be sovereign, but that does not prevent it from making a fool of itself and becoming an international laughing stock.

The latest move by disgruntled Remainers to obstruct the implementation of the Brexit success, and thwart the will of the electorate, takes the form of litigation against the Government. An investment manager, Gina Miller, has brought proceedings against the Government, presumably naming David Davis, the Chancellor for the Duchy of Lancaster, as the defendant. The case has ostensibly been provoked by statements made by the former Prime Minister to the effect that he, or his successor, could activate the Article 50 exit procedure without further reference to Parliament by the use of the Royal Prerogative. This appears to be the accepted procedure when a treaty has to be signed, altered or set aside.

The essence of the claim appears to be as follows: Parliament is sovereign; the result of the referendum is merely advisory and not legally binding; and so could be ignored by Parliament; the Royal Prerogative can be amended by Parliament so as to prevent the Prime Minister from making use of it; and Parliament needs to be consulted and give its authority to the activation of Article 50. Another claimant, Mr Dos Santos, claims that notification under Article 50 ‘can only be given with the prior authorisation of the UK Parliament’. For the Government to do otherwise, it is said, would be ultra vires.

The entire litigation appears to be futile and pointless; an attempt to involve the legal system and the judiciary in what are essentially political issues. One can test that by supposing what the outcome might be.

First, there can be no doubt that Parliament is sovereign. The court would be bound so to hold. That would mean that Parliament can control or influence the Government, to whom the latter is accountable, by various parliamentary methods; including legislation to curtail the use of the Royal Prerogative.

Second, suppose that the Prime Minister intends to operate Article 50 without the consent of Parliament; quite clearly it could vote or legislate to prevent that happening. The idea that the Prime Minister could somehow activate Article 50 in secret, and without anyone knowing anything about it, would be absurd. As the terms of Brexit and the process of negotiations are discussed and scrutinised from time to time in Parliament, the plan is bound to include the timing of Article 50 activation, and the mode of effecting it. In that context Parliament could decide whether to permit the Prime Minister to trigger Article 50 by the use of the Royal Prerogative, or prevent her from doing so. The court would have no role to play in issues of that kind.

In an article published by Paul Bowen QC in the September edition of Prospect magazine, the author provides further elucidation of the supposed nature and purpose of the claim (http://www.prospectmagazine.co.uk/opinions/when-law-runs-out-article-50-...). The author argues that there needs to be a gradual, negotiated withdrawal from the EU treaties with the United Kingdom. It is for Parliament to decide on the terms of any new treaties; if the Government goes ahead and activates Article 50 without the consent of Parliament, United Kingdom citizens will have lost their European rights without Parliament’s say so.

In his article Mr Bowen, inter alia, says this:

‘Under the 2015 Act, the Brexit referendum was merely advisory… Our constitution requires our parliamentary representatives to determine whether the UK is to leave the EU and if so, on what terms, and whether its citizens are to lose the EU rights to which they are entitled. They must give due weight to the result and the meaning of its single commandment, ‘Leave,’ but make their own judgment of what is in the UK’s best interests.’

Similar remarks were made by Tom Hickman (junior counsel for Gina Miller), Nick Barber and Jeff King in an article published in the August edition of Counsel magazine (http://www.counselmagazine.co.uk/articles/brexit-the-article-50-%E2%80%9...). The authors, inter alia, stated:

‘As a matter of constitutional law, Parliament is not bound to follow the referendum. … First, it could decide not to grant this power [to activate Art 50] at all. Parliament might decide that the case for Brexit has not been made – or made under a false prospectus. …

Second, Parliament could decline to invoke Art 50 whilst it is in the dark about the key aspects of the new relationship with the EU. …

Brexit is the most important decision that has faced the UK in a generation; our constitution – Parliament – gets to make this decision, not the Prime Minister.’

In the end the proposition advanced by the claimants comes to this: that Brexit cannot proceed without the approval of Parliament; and Parliament could, if it wishes, decide not to proceed with Brexit at all. These are essentially political issues for debate in Parliament, not for decision by the court.

That brings me to what I suspect might be the underlying objective of this litigation: that is, to reopen the referendum question in Parliament with a view to overturning the result. By bringing seemingly bona fide proceedings for judicial review, the claimants may hope to gain some kind of political legitimacy for reopening the Brexit debate in Parliament and thwarting the decision of the British people. If the court grants a declaration in favour of the claimants that would amount to an opinion that Parliament alone has the power to decide the issues raised; if it refuses the application on the grounds that the issues are political for Parliament to decide, that result would equally suffice. In other words success or failure is likely to give the claimants exactly what they want; namely, that the issues identified must be left to Parliament; a proposition which no one could contest.

Lord Justice Leveson is reported as saying the issues raised are of ‘enormous constitutional importance’. I respectfully beg to disagree: the litigation should be seen as no more than a tactical manoeuvre in the ongoing campaign by the Remainers to frustrate Brexit. Such a ruse is the more disagreeable in that it arguably amounts to misusing the judiciary and the legal system for political purposes, risking a breach of the separation of powers.   

It is wholly inappropriate litigation.

Contributor Stanley Brodie QC, Blackstone Chambers

A well-established octogenarian, Stanley Brodie was educated at the Bradford Grammar School and Balliol College, Oxford. He was called to the Bar by the Inner Temple, and served as its Treasurer in 2000. He took Silk in 1975. He has practised at the commercial Bar nationally and internationally. He is familiar with constitutional issues.

                                                    

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