The Lord Chancellor (The Times 10^th November) rightly upheld the independence of the judiciary in making its decisions – including the recent judgement (November 3^rd) in the High Court which denies the Government prerogative powers to trigger Article 50 of the Lisbon Treaty. These are the very same powers which it employed to sign the same Treaty in 2007 without a squeak from the judiciary.

At the same time the Lord Chancellor upheld the right of the press, and others, to comment on, even criticise, judgements made by the Courts. The following points seem relevant:

1. Most newspaper comment has focussed on the context of the judgement, i.e. the Referendum result, rather than the reasoning which led to that judgement.  The Court clearly took the view (paragraphs 15 and 16 of the judgement) that the claimants (R Miller et al) were challenging the decision to leave the European Union (Article 50 (1)), and that notification to leave under Article 50 (2) were one and the same thing (paragraph 17) – as much of the newspaper comment basically said.
2. Much of the legal comment, as evidenced by letters to the Times and Telegraph, seemed to suggest that the comment from the public (i.e. non-lawyers) was ill-informed and (therefore) to be ignored. But non-lawyers can read and many can even analyse in ways which are at least equal to those deployed by QCs for instance.
3. Overwhelmingly the Court’s judgement rests on two factors, the “profound consequences for domestic law” if any, which in its view  would necessarily follow triggering Article 50, and the constitutional requirement that rights conferred by Acts of Parliament (chiefly through the European Communities Act 1972) cannot be taken away by the Government’s exercise of its prerogative powers.
4. But the Court could not know what the final “profound consequences for domestic law” will be of invoking Article 50. How could they? Nobody knows as the purpose of Article 50 is actually to negotiate a new UK-EU Treaty. Parliament is in fact most likely to mitigate, by new laws, any arising disadvantages for particular groups of citizens and businesses resident in the UK. Most EU law is already embodied in UK Law (e.g. the Climate Change Act 2008) and in regulations, which will again be up to Parliament to continue with or amend. In fact, there may not be any “profound consequences for domestic law” at the end of the whole process of leaving. It is not for the judiciary now or in the future to attempt to second guess a future government and parliament.
5. Much has been made of the two year time limit in Article 50 (3), but this limit refers to the end of the application of EU treaties to the UK, not to the negotiations for the UK to leave per se. It should be expected that, for particular topics, negotiations may continue for some years beyond the conclusion of a basic agreement for which two years is plenty of time.
6. Triggering Article 50 will be the start of an international Treaty-making process and the government should be allowed to get on with that.  Negotiations to set up the NATO Treaty in 1949 were initiated and conducted entirely between governments, principally those of Britain and the USA.  Despite its profound actual and potential domestic consequences, especially under Article 5^[1], no court intervened to prevent the Government negotiating, signing and ratifying the NATO Treaty or indeed later amendments to that treaty. Needless to say, there has been no juridical attempt to prevent the government using its prerogative powers to extend NATO’s membership from the original 12 to 28, with all that means for Britain’s physical safety and the exposure of its citizens to obligations they have not specifically agreed to.

End Note

[1] Article 5 is the article under which every NATO country is bound to treat a third party action against one of them, north of the tropic of Cancer, as an action against itself. It is the reason why British troops are being stationed in the Baltic countries to protect them against a possible incursion by the Russians.

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