Learned opinion against the High Court Judgement

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?

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If an Act is required, why did apparently no-one say so prior to the referendum?

In my penultimate post I recorded several instances when the Government, with support on occasion from the Opposition, undertook to make our EU membership a matter for decision by the British people in a referendum, calling that decision ‘the final say’, or ‘the final decision’. I pointed out that if the Supreme Court were to uphold the Judgement of the High Court, then the final decision would be made by Parliament, and the referendum would become, so to speak, the penultimate decision, and no longer the final one. Thus the Government would be obliged by the Courts to breach its commitment to the British people, which is a very serious matter.

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‘The final decision’: or was it?

23 January 2013, Bloomberg: ‘this will be your decision’

David Cameron, in his Bloomberg speech of 23 January 2013 in which he announced a new Conservative Party policy to hold a referendum on the UK’s membership of the European Union, made it clear that the decision was to be made by the British people:

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