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Guest post: Don’t abuse the Brexit litigants – their action shows we live in a free country

The law firm Mishcon de Reya is bringing an action to force the Prime Minister, whoever she (or just conceivably he) may be, to obtain parliamentary approval before issuing that all-important article 50 notification.

The question in issue is a deceptively simple one but it has divided lawyers. Can the prime minister invoke article 50 as an act of Royal Prerogative; or will she need to persuade parliament to pass legislation before doing so?

At first sight it might appear that the point is somewhat academic. After all, should the Prime Minister issue the article 50 notice, the most vital question would be not whether this was valid in UK law, but whether it was valid in EU law. It would be no good the UK courts saying we were still in the EU if the ECJ said we were out of it. But in fact its validity in EU law depends on its validity in UK law. Article 50 (1) of the Lisbon Treaty explicitly requires that any decision to withdraw by a member state must be:

‘in accordance with its own constitutional requirements.’

If the decision to withdraw has not been made in accordance with British constitutional law then it will be ineffective under EU law.

So it is of critical importance that any such notification is legally given under British law.

The central argument of those who say that the Prime Minister cannot legally give the notification without parliamentary approval has been set out in great detail by Nick Barber, Tom Hickman and Jeff King in a widely read article for the UK Constitutional Law Association. All three are heavyweight lawyers. Barber is an Associate Professor of Law at Trinity College Oxford and author of The Constitutional State, a leading text on constitutional law; Hickman is an extremely brainy practising barrister; King is a leading member of the law faculty at University College London, and editor of the geeky lawyer’s bedside journal, Current Legal Problems.

In essence – and I deliberately over-simplify – their argument is this: parliament authorised entry into the EU by passing the European Communities Act 1972. An act of parliament cannot be over-ruled by an act of Prerogative. Issuing notice under article 50 would have the effect of over-ruling the 1972 Act, (or as they put it rendering it ‘nugatory’). The only legal, or constitutional, way of over-ruling or amending an act of parliament is to pass another act of parliament. So at root it is an argument about the balance of power between parliament and the executive.

The argument quickly gathered the support of Lord Pannick QC, Fellow of All Souls College Oxford, and by general consensus the cleverest practising barrister in the country. The highly respected Lord Lester of Herne Hill has also expressed his support through a letter to The Times.

It is doubtless not coincidental that both Pannick and Hickman have now been retained to act for the so far mainly anonymous (although they seem to include Zoopla boss Alex Chesterman) litigants who are bringing legal proceedings to force the Government to seek Parliamentary approval before triggering article 50. I imagine the remedy that they will seek is a declaration that the prime minister cannot legally invoke article 50 until the appropriate amendments have been made to the European Communities Act.

This legal analysis has not gone unchallenged.

The shrewd (sadly anonymous) legal blogger Spinning Hugo, who is very much a Remainer, has described the argument as so entirely without merit that he would not be prepared to stand up in court and make it. His argument (again somewhat over-simplified, but he himself says that it is a simple argument) is that the making and breaking of treaties has always been a matter of Royal Prerogative, exercisable by the prime minister on behalf of the Crown. Leaving the EU is a simple matter of breaking a treaty, so it is for the prime minister to decide, if he wishes without the authority of parliament.

Martin Howe QC, a leading Conservative and pro-Brexit barrister has confidently asserted that Mishcon’s argument is ‘devoid of legal merit.’ What is more, he continues:

‘As a matter of political authority, the decision of the British people not merely permits but mandates the giving of notice, without the need for any vote by parliament….

‘It is deeply objectionable but sadly not unexpected that those who suffer from a deep-rooted contempt for democracy should resort to legal antics of this kind in an attempt to frustrate the democratic decision of the British people.’

For what it’s worth (which I readily accept is virtually nothing), and despite Howe’s careless elision of ‘legal merit’ and ‘political authority,’ I am inclined to agree with him that the action is unlikely to succeed.

But Howe’s description of the litigants and their supporters as people with a ‘deep-rooted contempt for democracy’ is as absurd as it is insulting and intemperate.

He has not been alone. The often brilliant polemicist Brendan O’Neill wrote an extraordinarily silly piece for the Spectator in which he described the action as a ‘coup’ by lawyers. Warming to his theme, the former Marxist continued:

‘this is an attempt by sections of the capitalist class to use the instrument of the law to slow and possibly slay the stated will of the British people. It’s a stab by the rich and powerful to prevent the swift enactment of the majority’s democratic desires. When that kind of thing happens in Latin America, when paunchy well-off Brazilian blokes lean on the political system because it isn’t doing what they want, we balk; we complain that their democracies are immature. Yet something very similar is now happening here. It’s more polite, yes; more British; but it’s similar.’

O’Neill’s fellow Spiked columnist Jon Holbrooke was no less aerated and hyperbolic:

‘We are now witnessing the tyranny of the minority whose weapon, having lost at the ballot box, is the law.’

All this is, of course, utter nonsense. If bringing a legal action against the Government is ‘tyranny’ then the word has lost all meaning. And as for O’Neill’s argument that this is a ‘legal coup’; a coup d’etat is an attempt to overthrow the legal order by extra-judicial means. You cannot have a ‘legal coup.’ It’s a contradiction in terms like a ‘silent noise’ or a ‘dark light.’ Bringing an action for judicial review is not similar to a coup: it is in fact almost the polar opposite of a coup.

Of course parliament needs to listen to the result of the referendum, but that does not mean that a plebiscite with no legal force of any kind, permits, and still less (to use Martin Howe’s word) ‘mandates,’ the Executive to ignore the law and the constitution. Presumably Howe realises this, and his ostensible position is that he thinks the law is clear. But his denigration of people who think otherwise, such as Lord Pannick or Lord Lester, is bordering on the contemptible.

Even the Foreign Secretary, Phillip Hammond, a man who is normally a stranger to hyperbolic episodes, has joined in, sounding like a bargain-basement Bukharin. He says he deprecates

‘big law firms trying to interfere in our political system trying to overturn the will of the people.’

Far from hurling abuse at the Mishcon de Reya litigants and lawyers, every true democrat should welcome the fact that it is possible for this action to be brought despite the referendum result. Obedience to the law is necessary for democracy to function at all. Other countries have had systems in which ‘the will of the people’ trumps the rule of law but they have not been democracies. We saw the principle in action recently in Crimea, where the will of the people (expressed in a referendum) was deemed sufficient to justify the illegal annexation of part of Ukraine by Russia.

Once ‘the will of the people’ trumps the law of the land the result is not democracy: it is mob rule or tyranny. Tyrannies are not tyrannical because they are unpopular – many have been very popular – but because they are lawless.

Of course Howe and Hammond are not tyrants or even apologists for tyrants; and I am sure that O’Neill, despite occasional appearances to the contrary, has long since modified his Marxist ideology out of all recognition. It would be better though if, instead of resorting to silly hyperbole or unworthy abuse, they recognised that the ability of the courts to restrain the power of the Executive, and if necessary to do so despite ‘the will of the people,’ is one of the principal characteristics that distinguishes a free country from a tyranny.

Matthew Scott is a barrister at Pump Court Chambers. He blogs at BarristerBlogger and can be found tweeting here.