- The president of the supreme court, Lord Neuberger of Abbotsbury, delivered a summary of the decision, which has far-reaching constitutional implications.
Reading the summary, Neuberger said: “By a majority of eight to three, the supreme court rules that the government cannot trigger article 50 without an act of parliament authorising it to do so.
“Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.
“Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.”
Lords Reed, Carnwath and Hughes say insufficient weight given to tradition of ministers exercising powers in foreign affairs.
Three of the 11 supreme court justices in the article 50 ruling disagreed with the majority and produced strongly dissenting opinions in which they found in favour of the government.
Lords Reed, Carnwath and Hughes said the other judges had not given sufficient weight to the tradition of ministers exercising prerogative powers in foreign affairs and when signing treaties.
Lord Hughes summed up the basic principle of the Brexit case as being how to resolve two separate constitutional principles which, in relation to triggering article 50, “apparently point in opposite directions”.
The two principles were, he said, firstly that “the government cannot change any law made by act of parliament” and secondly that “the making and unmaking of treaties is a matter of foreign relations within the competence of the government”. Hughes said the act would simply no longer have effect once the government withdrew from the EU.
Lord Reed, who gave the longest dissenting judgment, said courts should “not overlook the constitutional importance of ministerial accountability to parliament”.
Much more important decisions, he said, such as taking the country to war in 1914 and 1939, had been carried through on the basis of ministerial exercise of prerogative powers.
His comments highlight one of several oddities in the precedent-dominated way legal argument was conducted during the supreme court hearing: no one mentioned the fact that since the 2003 Iraq invasion the power to declare war has, under political pressure, in effect been snatched out of the hands of the government and wielded by MPs.
Reed concluded: “It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”
Today’s Supreme Court decision in London should not have been necessary. How could a government be so arrogant as to attempt to engineer a nation’s exit from the European Union without consulting the elected representatives of the citizenry?
That would be anti-democratic – something more likely done by Russia’s Vladimir Putin or Turkey’s Recep Tayyip Erdogan. UK Prime Minister Theresa May did not do herself any favors with her attempt to swiftly steer the Brexit process past all political resistance.
The fight the decision by the Supreme Court has shined a light on some embarrassing blind spots in perceptions of democracy in Britain. This is especially true as regards the small clique of Brexiteers who eagerly employ any means necessary to bury political opponents. Their blatant disregard for democracy’s foundations and etiquette show that British conservatives are well on their way to becoming “Trumpified”.
The situation has deteriorated so much that the justice minister even declined to defend High Court judges after the right-wing tabloid press labeled them “Enemies of the People” when they ruled the same in November. Meanwhile, Brexit seems to have evolved into something akin to an overarching reason of state, justifying anything and everything that the government does. And that government is on a fast track to not only ending the UK’s relationship with the European Union, but also to doing serious damage to Britain’s democracy.
The most inexcusable and disgusting aspect of the entire situation has been the way in which Brexit supporters and their internet trolls have attacked co-plaintiff Gina Miller. She has done the country a great service by pushing Parliament’s responsibility in this important issue. And she is paying a high price for doing so: Since the verdict was handed down, she and her family have received death threats and been drenched with verbal sewage by critics. Miller has not only been attacked politically – she has also been the victim of sexist and racist attacks of the most vile sort.