The High Court judgement on triggering Article 50 for Britain’s exit from the European Union was seriously flawed and two of the Judges had serious conflicts of interest. It goes to Appeal early December.
The Government rightly asserted that Crown Prerogative Powers used to sign the Accession Treaty under International Treaty Law in January 1972 (9 months before Parliamentary approval, and without public debate or approval) was the logical and legal tool for reversing that procedure today – after a clear referendum legislated by parliament.
But the most serious matter in this judgement was the fact that two of the three judges had very serious conflicts of interest which should have barred them from sitting in judgement.
Judges’ conflicts of interest are taken seriously by the Judiciary and cases in the past have been re-tried because of such conflicts. In 1998 Lord Hoffmann, who had sat in judgement in the Pinochet case, was barred and the proceedings re-opened because “he had failed to declare both a personal and a family involvement in an organisation that was permitted to address the bench directly from a strongly anti-Pinochet perspective”. The Independent noted that “……it is his misfortune that it will be for his political judgement (or rather the lack of it) that he will now forever be remembered.”
Given the backgrounds of two of the High Court justices in the Article 50 case their judgement should also not stand and it is surely right that the Appeal Court should also consider the case from this perspective.
JUDGE THOMAS CONFLICTED
It is extraordinary that in a case concerning the exit of the UK from the European Union, its jurisdiction and its legal system, one of the judges, Baron Thomas of Cwmgiedd – the UK’s Lord Chief Justice – was a founding member of the European Law Institute, which says it works towards the “enhancement of European legal integration”. Its self-description goes on:
“Projects carried out under the auspices of the ELI must be at the service of the European citizen by improving the law or facilitating its application; aim at results that potentially have immediate practical impact; be effectuated through collaboration between jurists from academia and from legal practice; and take a genuinely pan-European perspective”
How can a judge with that background of commitment to the legal power of the European Union be an objective arbiter of this vital controversy?
JUDGE SALES CONFLICTED
Another of the 3 judges was Lord Justice Sales, who – as First Junior Counsel (a private practitioner barrister who represents the UK government in the civil courts) was the highest-earning lawyer in Tony Blair’s New Labour government. That Government was devoted to the destruction of the sovereign democratic rights of the British people and parliament on the altar of the European Union. Sales was a Pupil, along with Blair’s wife Cherie, under Lord Irvine – Blair’s Labour Lord Chancellor who controversially appointed as special advisor, without advertising, Gary Hart – later Lord Hart of Chilton – who was godfather to Blair’s daughter.
The Times reported that the appointment had caused “consternation” and The Guardian referred to Sales’ Chambers as a “network of old boys and cronies”, and that there was “no coincidence that the appointment came from Lord Irvine’s and Tony Blair’s old chambers”.
Given Sales’ close association with the New Labour, Blairite, eurofederalist wing of the Labour Party, how was he allowed to preside, as he did as part of the UK’s Court of Appeal in August 2016 when 130,000 (certainly largely Corbyn-supporting anti Blairite) Labour members who joined the party after 12 January 2016 were barred by that court from voting in the leadership contest.
There is something very seriously wrong with the British Justice system at the highest levels. But let us now look at the judgement itself: The Judges in the Brexit judgement are wrong on three counts.
THE FLAWED JUDGEMENT
Firstly the decision to revoke our EU membership by triggering Article 50 in no way affects the “rights of the people of the UK” since all the rights in all the Acts of Parliament since we joined the EEC in 1972 remain on the statute book. What exit means is simply the restoration of the untrammelled right of our Parliament (representing the sovereignty of the British people) to confirm, amend or repeal all or any of those laws.
Secondly the triggering of Article 50 is an affirmation of the powers of parliament, not the opposite and simply reverses the process of the original entry – which imposed on the British people (through Crown Prerogative powers to sign the Accession Treaty) the power of the EU to legislate over the heads of our people and parliament.
At that time there was no legislative approval by parliament, no MP knew what the Government was negotiating and there had been no referendum of the British people set in train by an Act of parliament with the Government asserting that “the people will decide”. The exact opposite is the case today.
Crown prerogative powers, if they are illegally used today to withdraw, were certainly illegally used in 1972 to join. But when the late Ross McWhirter, prior to ratification by parliament, questioned the powers of Crown Prerogative to innovatively change our constitution and the powers of Parliament, the judges ruled in favour of Crown Prerogative.
And at a later date, when presenting legislation in Parliament to ratify the Maastricht Treaty, Douglas Hurd set out the accepted position: “Parliament cannot overturn the Maastricht Treaty” – i.e. treaty law is separate from UK law. Equally today Parliament cannot overturn our rescinding of the Accession Treaty – especially as the true sovereigns – the people, have spoken according to the legislation passed so convincingly by parliament itself.
Thirdly if these judges are appealing to the sovereignty of parliament and its law making powers then they are appealing to something that was flatly contradicted when the UK joined. One of the great principles of law making is that certain laws are of a constitutional nature and are pillars of the entire British democratic system. They typically lay down the irrevocable principles for other laws and they are a template for generating other laws.
Such constitutional legislation, it has always been laid down, must be EXPRESSLY repealed by any new law contradicting them. In a recent lecture Lady Brenda Hale, Deputy President of the Supreme Court of the United Kingdom, articulated this principle:
“The recognition of the importance of these rights is accompanied by a principle of statutory construction – the principle of legality – which requires Parliament expressly to legislate to limit fundamental rights – and thus openly to confront the political controversy entailed.”
But that did not happen when the UK entered the (then) EEC when critical constitutional acts like the Act of Settlement, Magna Carta, the Treason Acts, the Coronation Oath Act and critical case law on Parliament not binding its successors, were overturned without any express repeal – or even specific discussion (as the late Norris McWhirter and I showed in our 1993 constitutional treason charges in connection with the Maastricht Treaty).
So when the three judges in the Article 50 case said that the Government’s case
“gave no value to the usual constitutional principle that, unless parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”
the Court was in fact condemning the very act of surrendering the sovereignty of that parliament in 1972 when just those powers were used to commit by Treaty Law to the EU Accession Treaty – without Parliamentary approval.
In the light of what Lady Hale (Deputy President of the UK Supreme Court) sees as a “renewed emphasis on British constitutional principles after years of concentrating on European legislation” and as “a growing awareness of the extent to which the UK’s constitutional principles should be at the forefront of the court’s analysis” the Judges should have grasped what happened in the opposite direction in 1972.
Her colleague Lord Reed in his Lord Irvine Human Rights lecture at Durham University went further to suggest looking to the legal lessons from other Commonwealth countries in the anglo saxon tradition of the common law:
“Where the existing common law or statute falls short of what is required to meet Convention requirements, the courts should respond by developing the common law or interpreting the relevant statute in the light not only of Strasbourg judgments but also the law of other common law jurisdictions, such as Canada and Australia, so that our own law meets the necessary standards.”
This Court judgement “falls short of what is required” – as indeed did the original surrender of sovereign powers to that Supranational State from which the British sovereigns (the voters) have now demanded their return!
The UK’s constitutional principles should again, as Lady Hale notes, be “at the forefront of the Court’s analysis” but neither the people nor the Supreme Court should permit a situation whereby the first step in the original surrender of sovereignty should be opportunistically barred as the first step in restoring that sovereignty.