Dissenting Article 50 judges spoke for Britain and good law

The public’s belief that Tuesday’s Supreme Court verdict on Article 50 had increased the number of Enemies of the People from three to 14 (15 if you include the millionairess who used her wealth to start this anti-Brexit hare) was right in essence, but wrong in detail. Three Supreme Court justices dissented from the judgement and it is interesting to examine their grounds for doing so.

Curiously, as has already been commented on in the media, two of the three dissenters were among the most Europhile members of the Supreme Court. Such is the distrust of the judiciary today, that inevitably provokes suspicion they might have dissented to avoid criticism of their EU connections and to provide a figleaf of division to mask the stitch-up being perpetrated. On the other hand, the intellectual robustness of their declared reasons for dissent (contrasted with the feebleness of the majority opinion) suggests they acted with integrity.

The three dissenting justices were Lords Reed, Carnwath and Hughes. Lord Reed was president of the EU Forum of Judges for the Environment, an expert adviser to the European Union Initiative with Turkey on Democratisation and Human Rights, and was chairman of the Franco-British Judicial Co-operation Committee. He also served as a judge in the European Court of Human Rights. Lord Carnwath was one of the four founders of the EU Forum of Judges for the Environment and served as its secretary from 2004 to 2005.

Their judgements, however, made clear they had not allowed longstanding involvement in EU legal and judicial affairs to distort their vision of British constitutional law. Lord Carnwath said the High Court judges who claimed a parliamentary vote was needed to trigger Article 50 “took too narrow a view of the constitutional principles at stake”. He stated that the Article 50 process must involve a partnership between Parliament and the Executive: “But that does not mean that legislation is required simply to initiate it.”

Lord Carnwath added that legislation will be required to implement withdrawal, “but the process, including the form and timing of any legislation, can and should be determined by Parliament not by the courts. That involves no breach of the constitutional principles which have been entrenched in our law since the 17th century, and no threat to the fundamental principle of Parliamentary sovereignty.” Importantly, he identified the triggering of Article 50 as simply “the start of an essentially political process of negotiation and decision-making within the framework of [Article 50]”.

Precisely. The sequence of Brexit events was a decision by the Executive to hold a referendum, endorsed by Parliament then voted on by the electorate. Everyone knew the consequence of a Leave vote would be for the Executive, in compliance with the wishes of the electorate, to invoke Article 50. Why would Parliament require another vote to authorise the next stage of a process it had itself mandated?

As Lord Carnwath also stated, triggering Article 50 is “an essentially political process”. It is that process which the litigants sought to obstruct, in defiance of the wishes of 17.4 million electors via a Parliamentary plebiscite. Another dissenting judge, Lord Reed, said, in an implicit rebuke to the High Court: “It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”

So, at least one legal luminary has wakened up and smelt the coffee. What judges have been toying with these past couple of months is the Royal Prerogative, the ultimate keystone of our constitution. Lord Reed pointed out that war had been declared in 1914 and 1939 under prerogative powers. Yes, and if the Iraq War was sanctioned by Parliament (misled by false information from the Executive), that does not change the prerogative power. It is not for judges to impose arbitrary restrictions on the royal prerogative (wars have been fought over this issue), but the Queen in Parliament.

In an admirable restatement of the doctrine, Lord Reed said: “For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions.”

Lord Hughes, the third of the dissenting judges, said in his ruling that “the making and unmaking of treaties is a matter of foreign relations within the competence of Government”. Of course it is: it is well-established constitutional doctrine that treaties with foreign states are negotiated under the powers of the royal prerogative.

Those three voices of sanity were drowned out by the more advertised opinions of the eight judges forming the majority opinion. That testifies to the heavy politicisation of the judiciary, which is now even more unpopular and distrusted than it was a month ago, though that might hardly seem possible. In the Article 50 case the primary blunder was committed by the three High Court judges who should simply have ruled the application non-justiciable and refused to hear it.

The Supreme Court could hardly have refused to hear an appeal against an existing judgement, but they were well aware it was vexatious political litigation designed to obstruct the public will at the expense of politicising the courts. There will now be a widespread public demand to depoliticise the courts and curb activist judges. The old pals’ act, determining succession to judicial appointments over dinner in the Garrick (when that club voted to remain all-male, women lawyers complained it disadvantaged their careers) must be replaced by an American-style scrutiny process.

The justice system is in need of reform. PC innovations such as “aggravated offences” and protected minorities have ended the principle of equality under law, fought for over centuries. The Orwellian notion of “hate speech” has abolished free speech and created a culture of fear and self-censorship. All this must be rolled back as soon as Brexit is achieved.

The Europhile prejudices of activist judges have created the risk that Brexit negotiators will go to Brussels hobbled by wrecking amendments inserted into the Article 50 legislation by mischief-making Remainers in the Commons and Lords. EU negotiators will savagely take advantage of the weakness of Britain’s position, thanks to the Remain fifth column. Our entire justice system – along with Parliament – requires root-and-branch reform.