A new reality TV show has gripped the nation: the case of Gina Miller and Deir Tozetti Dos Santos v Secretary of State for Exiting the European Union.
Streamed live from the Supreme Court, this legal drama concerns the application brought by an investment manager and a hairdresser to prevent the Government exercising the UK’s right to invoke Article 50 of the Treaty on European Union.
On November 3, the divisional court (consisting of Lord Thomas of Cwmgiedd, the Chief Justice; Sir Terence Etherton, the Master of the Rolls; and Lord Justice Sales) ruled that prior parliamentary approval was required for this. In essence, their argument ran as follows:
1. The Royal prerogative is a residue, i.e. it exists only to the extent that Parliament has not overridden the Crown’s discretion by legislation. (True.)
2. It follows that the Royal prerogative cannot be used to deprive a citizen of any legal rights which Parliament has created. (True.)
3. Under the European Communities Act 1972, which ratified UK membership of what later became the EU, British citizens have certain “enforceable EU rights” which could not be replicated in purely UK law, such as freedom of movement within the EU or the right to vote in European Parliament elections. (True.)
4. Giving notice of intention to leave the EU under Article 50 starts a process which makes it virtually certain that British citizens will no longer possess those “enforceable EU rights”. (True).
5. Therefore, giving notice under Article 50 deprives British citizens of some rights and therefore it must be a matter for Parliament alone, not the Royal prerogative. (Utterly false.)
As soon as the judges “discovered” point 4 in this list – and it is difficult not to perceive a tone of gleeful smugness creeping into the judgment – they declared the claimants to have won.
Yet this judgment is, in fact, utterly wrong. In particular, it rests on the logical fallacy lawyers used to call petitio principii, i.e. taking as a premise what you are trying to prove as a conclusion.
Consider this hypothetical scenario: in a fit of rage at the election of Donald Trump, Parliament passes a law giving every British citizen the right to vote for the US President.
As the Miller judgment tells us (in paragraph 22), once legislation has made it onto the statute books, judges have no competence to question its validity. But Americans, as you may be aware, are quite touchy about British Parliaments legislating over their domestic affairs – that is, after all, why they stopped being British in the first place. So at some point, their Ambassador would call round to ask what we think we’re playing at.
If the Miller judgment is right, the Foreign Secretary would be powerless. Preventing someone flying off to Michigan to cast their ballot would deprive them of a right conferred by Parliament.
Indeed, if you follow Lord Thomas of Cwngiedd’s logic, US independence was itself a violation of the constitution – because the Treaty of Paris of 1783, which recognised the independence of the 13 colonies, deprived people on the other side of the Atlantic of some of their rights as subjects of the British Crown.
Now consider a second hypothetical. The EU, incapable of solving either or both of the Eurozone and immigration crises, dissolves itself in a hurried summit meeting. Whom can Mrs Miller sue now?
Miller is emphatic in its astonishing insistence that by passing the 1972 European Communities Act, Parliament’s chief intention was to make EU law supreme in the UK, so that our citizens could enjoy those enforceable EU rights (paragraphs 92 and 93). And to such an extent, apparently, that the loss of the ability to take a case to the ECJ amounts to a material change in the law of the UK (paragraph 64).
The whole of point of the judgment is that only Parliament can reverse this.
But if the EU were to disband, the French wouldn’t now let Mrs Miller move to Paris whenever she felt like it, and there wouldn’t be a European Parliament with elections for her to vote in.
She would have been deprived of her rights under the European Communities Act, which would remain on the statute books. Would the Government be required by Lord Thomas to respect the free movement rights of foreigners into the UK from an EU which had ceased to exist?
You might query the likelihood of this situation arising – or argue that, depending on the facts of the dissolution, the UK might have claims on behalf of its citizens against the other ex-EU governments for breach of international law.
We don’t have to consider that. All we need to know is that Parliament could not do anything about it. Nor, even, could Lord Thomas of Cwmgiedd.
What these hypotheticals clarify for us, in other words, is that Parliament was only able to pass the 1972 Act, and Mrs Miller only ever had rights to enjoy, because a number of foreign governments agreed among themselves to grant each other rights and obligations and to enshrine them in their domestic laws. No treaty; no rights.
But surely, you cry, this is Britain. We have the rule of law. You can’t have ministers going about obliterating at the stroke of a pen the rights of free-born investment managers.
And you’re quite correct. The Royal prerogative could not be used to sign a treaty with, say, Iran in which we pledge to remove the vote from, say, hairdressers.
That is because Parliament has already created our country’s voting rights, and foreign policy cannot now be used to change domestic law to deprive people of their rights without Parliamentary approval.
Yet what is the nature of an “enforceable EU right”? It is a right enjoyed by the citizens of a country so long as that country is a member of the EU. Those rights flow from a Treaty – a Treaty which has had a mechanism added, Article 50, by which a country may leave.
But you don’t even need Article 50. The three judges in Miller expended much ink trying to reconstruct the intent of the Parliament in 1972, before arriving at their remarkable conclusion that it was all about making EU law supreme.
A more realistic suggestion is that back in 1972, our parliamentarians would have said they were enacting the rules of a club which apply to the UK while it is a member.
Parliament cannot by itself create enforceable rights effective outside the UK – whether the country is in the EU or a former colony on the other side of an ocean. All Parliament can do is register rights created under a Treaty with another country – and those rights cannot be stronger than the Treaty makes them.
So “enforceable EU rights” under the 1972 Act come with conditionality: they hold good until the completion of a specific process, one that begins when we serve notice under Article 50.
Just as Parliamentary legislation about the American colonies was nullified after 1783, so the 1972 Act will be nullified by its repeal at the end of the Brexit process. Until then Mrs Miller has been no more deprived of her rights than a tenant who has been served notice to quit under a break clause clearly written down in the lease.
In other words, by assuming that “EU rights” are identical to permanent UK rights, the judges in Miller close down any discussion of the origin of these rights, and presuppose their conclusion that the prerogative cannot be used to reverse EU membership.
But Parliament neglected, in amending the 1972 Act, to place any fetters on the prerogative in regard to Article 50 – although it has placed restrictions on the ability to agree a new Treaty which passes more powers to the EU.
Odd, that the three judges should have dismissed this as being of no significance.
You would have thought, in a case about fetters on the prerogative, this might warrant more than a casual dismissal. Instead they prefer to make the sloppy elision that there is now no difference between EU and UK law, other than the superiority of the former.
British jurisprudence on the EU has been mesmerised by the pretence that there is a seamless continuity between pre- and post-1972 UK law. You can see it in Miller itself, where Lord Thomas cites cases from 1610 and 2014 as if they referred to the same system.
Yet to keep up this pretence that nothing has changed, everything has to be rewritten.
When I was a law student in the 1980s, we were taught that there was only one type of statute law in this country.
That lasted until February 2002 and the Metric Martyrs Case – where it was confirmed, following the implications of the earlier 1989 Factortame I case, that there are special constitutional statutes (of which the 1972 Act naturally turned out to be the most important) which should be interpreted according to their own rules.
For more than 20 years, the Royal prerogative was a Good Thing if it was being used to sign a new Treaty that brought us More Europe. Now that it might mean Less Europe, it turns out to be a Bad Thing after all.
Inadvertently, therefore, Lord Thomas and his colleagues have given us a conclusive argument for Brexit. Stop arguing about the £350 million. Don’t even worry about Turkish immigrants.
Worry about the fact that three apparently intelligent, civilised and respectable men have humiliated themselves in public in the service of the supremacy of EU law by producing 32 pages of drivel.
The sooner we get this poison out of our judicial system, the better.