Introduction: why are Government ‘sources’ predicting failure?
On 4 November 2016, the day after the High Court had handed down its judgement that the Government ‘does not have power under the Crown’s prerogative to issue the Article 50 notification’, the Prime Minister’s spokesman said that ‘the focus of the government’ was on the Supreme Court appeal, and that they remained ‘confident of winning that case and proceeding with Article 50’.
On 7 November 2016, David Davis told Parliament that the Government disagreed with the High Court’s judgement, that their position remained that ‘triggering Article 50 is properly a matter for the Government using its prerogative powers’, and that they would therefore be appealing the judgement at the Supreme Court.
On 1 December 2016, John Finnis, Emeritus Professor in the Faculty of Law at Oxford University, in his Thomas More Lecture at Lincoln’s Inn Fields, four days before the Supreme Court hearings and therefore presumably on the basis of the Government’s written submission, said that ‘the principle of constitutional dualism at the intersection of international affairs with domestic law’ had ‘been presented much more clearly and fully’ than it had been to the High Court, intimating that he had not given up hope of a reversal of the decision.
I find it odd therefore that Government sources were reported by the Guardian on 11 January 2017 to be ‘convinced’ that ‘seven of the 11 judges will uphold the high court’s’ judgement. Why the defeatism?
I have been struck by the weight of academic opinion critical of the High Court judgement, and of Barber et al’s argument before it. For example, I have found a total of seven full Professors at the Universities of Oxford and Cambridge who favour the Government view that it can issue the Article 50 notification through the prerogative power. In contrast, I have found only one (Paul Craig) who prefers the claimants’ viewpoint. The Law Departments of Cambridge and Oxford rank first and second in UK rankings (Guardian, Telegraph) and second and third in an international ranking.
In this post I list full Professors in the UK who argue that no Act is required before the Government issues the Article 50 notification, and quote briefly from their articles, to give a flavour of their position. I have added one non-academic, Lord Millett to the list, because of his stature and the importance of his article in the UK Supreme Court Yearbook. I hope to compile a similar listing for those who agree with the High Court that an Act should be passed before the notification is issued.
I am not attempting to prove anything by this post. Clearly, the correctness of legal arguments is not determined by the number or stature of those who favour them. I do think nevertheless that long experience and great learning is of great value in a case like this which concerns the fundamentals of our constitution. My purpose here is simply to challenge the prevailing assumption that the Government will lose the appeal, and to awaken a renewed interest in the High Court Judgement. If these learned and distinguished men are right, then the judgement was wrong and should be overturned.
1) John Finnis FBA, Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.
‘Terminating Treaty-based UK Rights’, 26 October 2016:
‘Terminating Treaty-based UK Rights: A Supplementary Note’, 2 November 2016
‘“Intent of Parliament” Unsoundly Constructed’, 4 November 2016
‘Brexit and the Balance of Our Constitution’, Sir Thomas More Lecture, Lincoln’s Inn, 1 December 2016:
The ‘principle of legality’ would be damaged if the Supreme Court were to reject the ‘principle of constitutional dualism at the intersection of international affairs with domestic law’:
2) Mark Elliot, Professor of Public Law, University of Cambridge
‘Brexit, On why, as a matter of law, triggering Article 50 does not require Parliament to legislate’, 30 June 2016
‘Miller: Statutory Interpretation and the Contestability of Constitutional Principles’, 4 November 2016:
the Court engaged in a highly creative process of statutory interpretation
with Hayley J. Hooper: ‘Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union’, 7 November 2016:
‘in certain respects the Court simply goes astray and gets the law wrong.’
3) Kenneth Armstrong, Professor of European Law, University of Cambridge
‘Push Me, Pull You: Whose Hand on the Article 50 Trigger?’, 27 June 2016:
Their argument is an intriguing one but I don’t think the claim is compelling.
4) Christopher Forsyth, Emeritus Sir David Williams Professor of Public Law, University of Cambridge
‘The High Court’s Miller Judgement’, 8 November 2016 (my emboldening):
the court’s judgment, while powerful and orthodox, is vulnerable on appeal to the Supreme Court.
Forsyth supports Finnis:
but then asks whether it is not at least arguable in addition, or as an alternative, that:
by the 2015 Act, Parliament impliedly delegated the power to make the decision on whether the UK remained in the EU to the people voting in a referendum?
He suggests that such an analysis:
offers a logical and smoother path to Brexit that should appeal to all except those determined to frustrate the decision of the people.
5) David Feldman, Rouse Ball Professor of English Law, University of Cambridge
‘Brexit and the UK’s Constitution’, 19 July 2016:
This seems to be a misreading of the section…
‘Brexit, the Royal Prerogative, and Parliamentary Sovereignty’, 8 November 2016:
I thought that my view was self-evidently correct…
6) Leslie Green, Professor of Philosophy of Law, University of Oxford
‘Should Parliamentary Sovereignty Trump Popular Sovereignty?’, 3 November 2016:
No one supposed that a clear result might be treated as … a preliminary comment in a national seminar on the constitution. …
The breadth of the doctrine is breathtaking. … it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise.
7) Timothy Endicott, Professor of Legal Philosophy, University of Oxford
”This Ancient, Secretive Royal Prerogative”’, 11 November 2016:
home truths of constitutional law…
‘Parliament and the Prerogative: From the Case of Proclamations to Miller’, 1 December 2016:
it is a fallacy to say that, if Parliament has enacted a statute giving effect to rights arising under a treaty, the Government cannot take action that would terminate those rights.
8) Adam Tomkins, John Millar Professor of Public Law, University of Glasgow
‘Brexit, Democracy and the Rule of Law’, 5 November 2016:
I think the court’s ruling is wrong.
it would be perfectly lawful to trigger Article 50 under the prerogative…
9) Philip Norton (Lord Norton of Louth), Professor of Government, University of Hull
‘The High Court judgement: keep calm and carry on…’, 6 November 2016
The judgement is flawed. I believe the reasoning of the court is mistaken and is in several respects.
this is the core point, the rights … are treaty-based UK rights and not ‘statutory rights enacted by Parliament.’
10) Graham Gee, Professor of Public Law, University of Sheffield
‘Mixing the Old and the New in Miller’, 4 November 2016:
I regard [the judgement] as mistaken
(strained and unconvincing?) legal fictions … (twisted?)…
11) Lord Millett, Non-Permanent Justice of the Court of Final Appeal of Hong Kong; retired Lord of Appeal in Ordinary, House of Lords
‘Prerogative Power and Article 50 of the Lisbon Treaty’, The UK Supreme Court Yearbook, 25 November 2016:
It would be an odd legal system which could hang a man, but could not deprive him of the right to reside in another country without the consent of the legislature.
12) Keith Ewing, Professor of Public Law, King’s College London
Professor Ewing does not believe that the Government can trigger Article 50 through exercise of the prerogative power. Rather, he believes that the Government already has the necessary statutory authority through the incorporation of the Lisbon Treaty into UK law through the European Union (Amendment Act 2008). 1
by incorporating Article 50, Parliament has provided that authority and government power to withdraw as a matter of domestic law.
(To the best of my understanding, this view is not incompatible with John Finnis’s dualist view; it is possible I think to hold that the Government has both prerogative power and statutory authority to issue the notification.)