By Bill Coales and Richard Heller
The Supreme Court is wrestling with the biggest judgement of its short life. Should it uphold the high court's decision on Article 50?
It may be tempted to show professional solidarity with the high court judges, pilloried in the Daily Mail as "enemies of the people". That language was wrong and degrading. The high court judges were dedicated, learned, decent people doing their job in upholding the law as they saw it.
But just because the Daily Mail was wrong in its language, it does not mean that the judgement was right in its conclusions. It is strongly arguable the high court took a mistaken view of three key elements: the nature of the EU referendum, the role of parliament in treaty-making and the origin of the rights we enjoy under EU law - which the people who brought the case say are threatened by Brexit.
The Supreme Court must look at all these issues afresh. It must decide whether the high court had any business intervening in a political matter which could and should have been resolved within the political sphere. If it upholds the high court's decision it may open the door to all manner of claimants using the courts to seek outcomes in public policy which they were unable to obtain through the democratic process.
The spectre of Sir Edward Coke hung over the high court.
This seventeenth century lawyer, judge and politician had an extraordinary influence over the common law and our unwritten constitution and indeed several provisions of the written US constitution.
Coke's celebrated judgement of 1610 was cited by the High Court over four hundred years later:
"The king hath no prerogative but that which the law of the land allows him."
Coke's reasoning behind this judgement was highly significant. The king could not make or change law because legal judgements are not made by "natural reason" but by "the artificial reason and judgement of law", which only judges possessed. Coke in fact believed that judges could and should override Acts of parliament.
"In many cases the common law will control acts of parliament and sometimes adjudge them to be utterly void: for when an Act of parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and judge such an act to be void."
Coke's view of the power of judges over king and parliament is very much alive. In a ruling in 2004, Lord Hope, then deputy president of the Supreme Court, stated that the courts have a part to play in defining the limits of parliamentary sovereignty. In 2012 Lord Hope went further when he stated that "the rule of law requires that the judges must retain the power to insist that legislation of the extreme kind is not law which the courts will recognise."
In 2014 the Supreme Court's decision on assisted suicide went still further. Not only could the court reject extreme legislation. It could infer the existence of rights in an area where Parliament had declined to legislate.
Although these precedents were not cited in the high court, its judgement confirmed the key principle set out by Coke. Parliamentary sovereignty is not absolute. The courts can and must step into matters where parliament has failed for any reason to use its powers to uphold the rights of the citizen.
Of course the political and legal system has changed out of recognition since Coke’s time. He was conducting a struggle against unfettered royal power, against which parliament and the courts were the only possible and legitimate source of resistance. Both of these, particularly parliament, then existed to protect the rights of men of property against encroachment and confiscation. Although women and common people might sometimes enjoy the protection of law he did not dream of giving them rights to elect a parliament or influence the creation of law and public policy on an equal footing to men of property.
Royal power has long since been tamed. Although vestiges of royal prerogative remain, any use of them by ministers, including the making of international treaties, is ultimately subject to control by parliament, and can be rejected. If parliament cannot achieve this by procedural means, it can always do so by withholding supply from the government or even passing a vote of no confidence in it. These remedies were available to parliament over Article 50.
Moreover, parliamentary power has been progressively transferred to the people by extensions of suffrage. MPs (even the very, very few who are independent of a major party) are elected to carry out the desire of voters for particular outcomes from the democratic process. Even before referendums the people had become the key agents of political change. Everything done by MPs is done in the name of the people, to meet their needs and wishes and sometimes to deflect their wrath.
That is why the referendum was so important – and why the High Court judges were wrong about it.
Although referendums came into being in the UK from political expediency (to preserve Harold Wilson’s divided government in 1975) they now embody a key principle. Normal parliamentary procedures and party politics, even general elections, are not always enough to ascertain the will of the people. Parliament recognises that on some issues it requires a direct instruction from them.
The EU referendum was one such occasion. It was quite wrong for the high court to describe it as advisory only. It was understood by every MP and peer during the referendum bill that parliament would be bound by its result. As the then-foreign secretary put it when introducing the bill:
"It has one clear purpose, to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum before the end of 2017."
Of course the government and virtually all MPs expected the British people to vote for the status quo and made no provision for the 'wrong' answer. But the fact remains that they transferred their sovereignty on this issue directly to the British people.
In a referendum every vote counts equally, unlike general elections where millions of votes are wasted in safe seats and opponents of the controlling party face the choice of voting for a party they dislike in the slim hope of overthrowing one they detest. In that way, a referendum result has more democratic legitimacy than a general election.
Moreover, although the EU referendum was not counted by constituency it is clear that a great majority of Remain MPs had their advice rejected by the majority of their constituents. If the decision had been left to the House of Commons, with its Remain majority, it would not have represented the people.
Having taken the wrong view of the referendum, the High Court inevitably took the wrong view of Article 50. This was no arbitrary use of royal prerogative but simply the first necessary step in carrying out the people’s express wishes.
The government were right to argue that it was no different from any other process of making or abrogating a treaty. This has always been in two stages. First, the government signs or abrogates a treaty as an act of international policy under the royal prerogative. Then parliament ratifies the decision and enacts any legislation required to effect it. The parliamentary role rested on convention for centuries and was put into statute only in 2010, but it has always been the case that no treaty comes into effect or into disuse without the will of parliament.
For that reason, the high court was wrong to argue that the invocation of Article 50 alone extinguishes the rights of UK citizens under EU law. All it does is to start a clock ticking for two years. If parliament were to do nothing in that period then the UK would leave the EU and those rights would disappear. But there is plenty that parliament can do during that time and even before. If it has the nerve, the Remain majority in both Houses could compel the government to accept conditions on its use of Article 50 or even deny it the right to use it at all.
Now look at a key strand of the high court's decision.
It assumed that parliament brought into being the rights under EU law which the appellants stood to lose. This is true in name only. Parliament did indeed pass the European Communities Act 1972, through which all EU law has been applied in the UK ever since.
But parliament had no independent influence over that Act, nor has it had any influence on any EU legislation ever since. The 1972 Act reflected a settlement, negotiated with other nations and the authorities of the then European Communities by the Heath government under the royal prerogative. Parliament had to take that settlement or leave it. When it passed the 1972 Act, it carried into UK law a mass of existing European legislation, for which any relaxation had been negotiated by the government under the royal prerogative. Parliament also accepted that future European Community law and rulings from its courts would also apply in the UK with no power for it to intervene.
Whatever has happened to the UK as a result of EU membership – including the rights of the successful appellants in the high court – owes nothing to Parliament. It has derived from settlements negotiated by the then UK government under the royal prerogative. Parliament has had to take them or leave them – and it could not leave any of them without making the UK leave the EU.
It is remarkable that the high court judgement mentioned the European Parliament and the advent of direct elections to it in 1978 without appreciating their significance. Parliament has yielded up its right to represent UK citizens on matters of EU law and policy to another assembly, with quite different powers and responsibilities, elected at different times to itself on a different franchise.
The high court has nonetheless effectively ordered parliament not to allow the government to trigger Article 50 without paying attention to the rights of the appellants.
Now our parliament has always had the power to do this. What our parliament cannot do is provide any actual relief for the appellants – except by denying the government the right to apply the referendum result and take the UK out of the EU.
If the high court decision stands it will place the interests of one set of the British people against the will of the majority. This might be justified in an extreme case, as envisaged by Lord Hope. For example, one could just about imagine a terrified government and a supine parliament trying to create a police state and internment camps in response to a supposed terrorist threat, or a racist government and parliament introducing a crackdown on Muslims, with the encouragement of President Trump. Then the courts (or the sovereign) might be the last hope of sanity.
But leaving the EU is no such case. It is the legitimate objective of a political movement and when it wins a majority in a referendum the courts should not get in the way.
If the high court decision stands, the judiciary will be drawn into politics forever. It may be as significant as the famous Marbury vs. Madison judgement of 1803 in which the US Supreme Court set itself up as the ultimate arbiter of the US Constitution. It made the Court an actor in American politics ever since and a shaper of American society – sometimes resistant to change, more often a decisive agent of change (as over school desegregation and affirmative action).
The US court has engendered fierce partisanship and controversy even though it works from a well-written constitution whose provisions are identified as such and adopted by formal procedures.
If the British Supreme Court adopts the behaviours of its namesake it will work from an informal and inchoate constitution which still relies heavily on custom and convention. Key provisions have been adopted so to say, by stealth, in the guise of ordinary statutes.
One of these is the Human Rights Act 1998, already under threat from conservative forces. They will redouble their pressure on Theresa May’s government to repeal it if they think that a newly-politicised Supreme Court would use it as springboard.
It would be an ironic unintended consequence if, in attempting to preserve the rights of UK citizens under EU law, the Supreme Court secured the extinction of their rights under UK law.
Bill Coales is a businessman and writer, educated, like Coke, at Cambridge
Richard Heller is an author and journalist. His latest book, with Peter Oborne, is White On Green celebrating the drama of Pakistan cricket.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.