Supreme Court Hearing on Brexit: A Personal Record (Robert Henderson)


Robert Henderson

We have had the four days of the Supreme Court hearing which is now over and the judges will not issue their written verdict until the New Year.

It has been four days of extreme tedium, full of highly-paid briefs over-egging the pudding with too many examples to prove a particular point, much irrelevant argument, a huge amount of referring to batch that and manuscript number this with frequent inability of all eleven judges being able to find the relevant document, and shameless toadying by the presenting lawyers with frequent references to cases that one or the other of the Supreme Court judges had presided over.

The quality of the lawyers varied greatly. The strongest performers were Lord Keen for the Government and Lord Pannick and Richard Gordon for the opposition. The weakest performers were James Wolffe QC, for the Scottish government who was pathetically nervous, and a Sikh advocate by the name of Manjit Gill QC appearing for EEA citizens in the UK. Gill was was so inept that the Lord President of the Court Neuberger ended up treating him like an appellant in person, constantly hurrying him along and clarifying what Gil’s rambling amounted to.

The judges for their part have made all too frequent interruptions as most of them were anxious to get their names on the scoreboard as it were and appear in the record of the official court proceedings. Having eleven people able to interrupt at will is absurd. The format of the court needs to be changed.

I have watched an hour or two on each day. Judged by the interventions by the eleven judges, I would hazard a guess that the court will toss out the devolution arguments, but could decide that an Act is required to to trigger Article 50.

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16 thoughts on “Supreme Court Hearing on Brexit: A Personal Record (Robert Henderson)

    • He’s right, but it would involve breaching the Treaty, and would therefore be unlawful. However, in this context, ‘unlawful’ is not the same as ‘can’t’. We could have done, and we still could, but there would also be constitutional complications, which are reflected in the Miller case. My initial thought is that Parliament would have to enact the necessary repealing legislation in such circumstances, which puts us back in the territory of Miller 1.

      This is why I think the Miller ruling was correct and I also expect the Supreme Court will go the same way.

      It’s worth noting that these complications only arise due to Parliament’s and the Cameron government’s ineptitude in not enacting watertight legislation in the first place. They should have planned for this, however it may be that the ineptitude accidentally works in our favour. I suspect had there been a ‘plan’, it would have framed matters favourably for the Remainers.

      • Tom – The best way to leave would be to invoke the Vienna Treaty on Treaties (this would provide a legal fig leaf) and leave in months not years and then trade under WTO rules. That would stop the remainers stitching us back into the EU in the future, end our payments to the EU and secure our borders very soon.

        Don’t be taken in by all the headlines portraying May as the victor over what will happen in Parliament before Article 50 is triggered. She has (1) not necessarily killed off the Supreme Court threat – the court could insist on something more than a motion, for example, a Bill, which would give the remainers great scope to amend and delay, and (2) she has conceded the point about subjecting the government’s negotiating postilion to Parliamentary approval before Article 50 is triggered. There is also the fact that the government is packed with remainers and cannot be trusted to behave honestly. Many of them, including May, will be privately happy to see amendments and delay.

        • It is a shame that a GE did not come along with the decision to leave, to perhaps shake many of these remainers out. IMO, the government’s timetable is less important than actually effecting hard Brexit.

        • I’m not ‘taken in’ by anything. I have formed my own view on the matter, as you surely must have divined from my comments on here. The court will probably insist on an Act of Parliament. However, I do not believe Brexit will be blocked now. The issue is over the terms and the nature of the ongoing relationship after we leave – that’s where the real controversy is. The blocks that are being put in the way are designed and intended to morally weaken the case for a hard(er) Brexit and ensure that what I call the Establishment’s ‘Plan B’ is put into operation – i.e. we stay in the Single Market as a member of EFTA, or at least a continuing member of the EEA on some basis.

          Regarding your proposal, I will not deal with your point about the Vienna Treaty for the moment, as that is a technical legal matter that depends on the application of lex specialis and I need to further research and consider – but I probably will give you my thoughts in due course. However, I should warn you that on constitutional matters (which this is), I am a strict parliamentarian in that I hold that Parliament is supreme and sovereign in all matters, and it is very unlikely that I would agree to an interpretation that in any way erodes parliamentary sovereignty in principle.

          Turning to the trade point, we already trade under WTO rules, and I would venture to suggest that to a large extent the WTO is of diminishing relevance now due to the global trend towards regulatory convergence. The issue in international trade outside the Single Market would be with non-tariff barriers, such as conformity assessments which are a barrier to trading and exporting to a highly-regulated zone like the EEA, and the need for co-operation plans and mutual recognition in various sectors. Admittedly, that problem would probably not be significant for the UK initially, as we already have a decades-long track record of gold-plated conformance, and thus we have structures and institutions in place to support a transition period of some kind prior to a bilateral agreement. So, yes, your proposal could work practically (albeit with serious risks). But I don’t see there is any political will to push for this sort of option, as it would be messy and controversial and involve having to ride-out the political consequences of the inevitable disruption to the economy and the failure of businesses here that export to the Single Market. Do you know of any Tory politicians, especially those representing the south of England in constituencies proximate to the Continent, who would be willing to risk their constituents’ small businesses?

          Notwithstanding this, I agree that, for those of us who understand the true nature of the EU, it would be better to leave as quickly as possible – whatever the costs. But that isn’t going to happen. I wish it were different, but I think the reality is that all talk of ‘hard’ Brexit is just hot air. It would only have been possible had the matter been planned-out prior to the referendum, but here we come to an infelicitous paradox: had the whole thing been planned and preparations made for an orderly exit contingent on a pro-Brexit vote, the framework would have favoured a soft exit anyway. That’s the essential Catch-22 that we face.

          • This is the section of the Vienna Convention tht might be used to provide a fig leaf of legality to our withdrawal without conditions:

            https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
            Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969

            Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) The effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) If the treaty establishes a boundary; or (b) If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty

  1. This is what I like about Robert Henderson. He just gets straight to the point. This scathing critique reminds me of a famous disbarred attorney in the United States (I forget his name for the moment) who used to write acid reviews of appellate lawyers appearing before his state’s supreme court in employment cases.

    I agree that it is likely the Supreme Court will rule for Miller on some basis. This is the correct position legally and constitutionally. Like it or not, Miller has a good case and personally, looking at this objectively, I think she was right to bring this to law. We can’t have parliamentary sovereignty undermined. If Parliament wished to be bound by the referendum in that parliament, then MPs would have enacted the necessary legislation. They emphatically failed to do so, or decided not to do so, and therefore, one way or the other, they reserved sovereignty to themselves.

    However I have no fears about Brexit. These ploys from Remainers are not designed to stop it as much as weaken it. We will leave. The real battle is over what type of Brexit it will be. I am heartened to see serious comment in the media supporting a ‘hard’ Brexit, but I if a hard Brexit is what was wanted, that should have been years in the making, even if were possible. And of course, there are some, like Dr. North of FLeXCiT/THA, who argue that a hard Brexit is not possible.

    • I am more drawn to the arguments of constitutional scholars such as Professor Mark Elliott, Professor John Finnis, Professor Adam Tomkins MSP, Professor David Feldman, and Lord Norton of Louth, who, among others, argue that the royal prerogative can be used to trigger Article 50 as part of the Government’s treaty-making powers on the international plane. The Government alters domestic law all the time in this way.

      The most comprehensive focus on the consequences of the Miller ruling is this excellent, detailed article by Mikołaj Barczentewicz. Remainers should be careful what they wish for.

  2. If the terms one uses are not universally understood then one can go around in circles. So – may we come to some agreement about what is meant by Parliamentary sovereignty, please?
    To do that we need to agree what you mean by Parliament? do we mean:
    1) the House of Commons and the Executive machine installed inside it, i.e the “elective dictatorship” (Lord Hailsham)? .i.e a lawless organisation, which disregards constitutional law since it has a “majority” as did Edward Heath and every government ever since

    2)a free House of Commons,a free House of Lords and a free Monarchy all acting as allowed by law, in which case the term is “Parliamentary supremacy” I am told. In which case it is extremely hard for one part to ignore the law and for the whole to make bad law as it requires the consent of the three institutions,as oppose dto the whipped/coerced version we have at present..

    I am sure that Parliament example 1) can claim to be be sovereign since it achieves its power by forcing the voters to accept one or other of a series a “package” deal options at election time so that the people are forced to surrender power by that vote.

    Perhaps the people ought to be sovereign not in the mass sense of “mob rule” but in the sense that their liberty to make social choices freely as individuals is not entwined with any election process at all since the government does not originate from the “will of the people” but continuously from the Crown, but with the consent of the people living under laws which they accept and only such as are enacted with the consent of a free House of Commons truly reflecting the liberty (not the “will”) of the people.
    As I quote Hailsham on my home page, http://www.camrecon.demon.co.uk ” it is the parliamentary majority which has the potential for tyranny.”
    Clear as mud?

    • Parliamentary sovereignty means Parliament is the supreme legal authority in the land. Only Parliament can make, amend, modify and repeal laws. The courts must defer to Parliament (which is also the country’s highest court in its own right). That leaves scope for some debate at the periphery of the concept over exceptions and qualifications, including to what extent laws can be entrenched, but I think the basic idea is clear enough. It does not follow that the people are not sovereign. The People (capital ‘P’) have reserve sovereignty at all times. This normally means elections, but it could in principle also mean that the People rise as a body to overthrow the entire institution, if they wish to. The system only exists with our acquiescence and presumed consent.

      Parliament means the House of Commons, the House of Lords and the Queen-in-Parliament (or the Queen in Parliament under God, to give it its formal title). Of these three legislative components, the Queen-in-Parliament has the supreme power, which is carried out by the executive. However, as the political branches – the legislature and executive – are fused, it follows that de facto power is with the bicameral legislative chambers, primarily the House of Commons as the legislative role of the Lords has been severely curtailed.

      When I say Parliament is sovereign and supreme, I mean exactly that. Parliament can, in principle and subject to certain caveats, do whatever it likes. Such a system does have the potential for elective dictatorship, that is true, but it should also be obvious that Parliament is separable from the government and Parliament can sometimes defy the government of the day – and has done so. Indeed, Parliament can bring down a government, which is ultimately answerable and accountable to Parliament, and governments have fallen following parliamentary resolution.

      On the present issue, the basic point is that the European Union Referendum Act 2015 does not make the outcome of the plebiscite, in either direction, binding on Parliament. Indeed, the legislative guidance and briefing that was published at the time in support of the then-draft Bill confirms this – see the European Union Referendum Bill, Research Briefing, Number 07212, 3rd June 2015. That being the case, the position is simple enough to understand. Whatever the government may have said about the outcome of the referendum, Parliament is not bound by it as it did not bind itself in this parliament. Any further debate or discussion on the point is superfluous – or ought to be for anybody who understands the situation. The rules are the rules. I don’t like it politically, but I can’t ignore what is plainly the case.

      • ” That being the case, the position is simple enough to understand. Whatever the government may have said about the outcome of the referendum, Parliament is not bound by it as it did not bind itself in this parliament.”

        Politics is not about dry legal points, Tom. In a democracy it should come down to what the majority want otherwise democracy means nothing,

        • Of course, and don’t think I like what is being decided, but this is still a legal case and it has to be decided that way. I am just adhering faithfully to what I think is the legal/constitutional position.

          This is partly because I think it is the right thing to do in the long run, and also because I am familiar with the old lawyer’s saw: “The law will always save you in the end”. And I think it will.

        • I don’t know if you’ve seen this but here’s a clip from the BBC of an interview with a Cambridge University Professor of Public Law. [Ignore the silly title of the video. The anchorwoman is “destroyed” by the learned professor].

          Professor Forsyth seems to agree with both of us. He agrees with me about the legal and constitutional consistency of the Miller judgment, but like you, he argues that the referendum itself was binding. I have to say, I don’t follow at all his reasoning on the latter point. The statute made no provision for the referendum to be binding and would have had to if that was the intention.

  3. Tedium, highly-paid briefs, obscure and frankly meaningless bits of paper…yes you have nailed it very accurately.

    Best thing would just be to repeal the European Communities Act of 1972 and declare free trade.

    Why are so many fixated on the Single Market and “trade deals”, that are really only a bureaucrats’ bonanza and inevitably favour vested interests at the consumer’s expense?

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