The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.
Before saying anything else, there are three initial observations that should be made about this.
The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.
The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.
The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.
Subject to these observations, what did the Court decide, and what does it mean?
Continue reading A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment
Edmund Burke, on being elected MP for Bristol, famously told his new constituents that ‘Your representative owes you, not his industry only, but his judgment’. This was his clever way of saying that he was going to make up his own mind about how to vote in the House of Commons, and not feel bound to do whatever the people of Bristol wanted.
The speech, made in 1774, has stood the test of time. It is the classic statement of an MP’s role in a representative democracy. And its sentiments are embodied in constitutional law – MPs have a duty to make up their own minds, even if they were given a clear message by the electorate in a referendum (see Moohan v Lord Advocate at ).
A lot of people who do not much like the idea of Brexit are placing a great deal of weight on this. They think that the EU referendum is not the end of the matter, that MPs still have to vote on whether the UK should leave the European Union, and that Parliament is in no way bound by the wishes of the majority as expressed in the referendum result.
This has led to the first piece of post-referendum litigation. But how far is it accurate?
Continue reading The Article 50 Litigation – Why the UK Parliament Still Needs to Vote for (or against) Brexit
Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.
In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.
However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.
Continue reading Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution