After the Divisional Court ruling in Miller, cyberspace was alive with (pro-Remain, surprisingly) constitutional lawyers piling in to criticise the judgment against the Government. It's too early to say if yesterday's confirmation by the Supreme Court will attract the same opprobrium (although one such lawyer tweeted that the more he looked at it the more he found it full of holes*).
I'm not going to pile in with my own analysis - in an age which has had enough of experts my status as someone who briefly practised law in another field nearly 20 years ago does not even get me into that discredited bunch - but a summary of the issues might be of interest, and there's an overarching constitutional point which transcends the technical detail.
One of the dissenting judges, Lord Hughes, boiled the case down to two conflicting principles (para.277 of the judgment).
On the one hand the Executive cannot change law made by Act of Parliament or by the common law.
On the other the making and unmaking of treaties is within the competence of the government via royal prerogative.
Thus the conflict arises. If the UK withdraws from the various EU treaties that would seem to be concern the prerogative. But because the European Communities Act 1972 has the effect of importing into UK law the substance of those treaties, UK law would be changed thereby.
Ah, said the Government, but no UK legislation would be changed by the triggering of Article 50. The ECA 1972 would remain unchanged. We would merely cease after two years to be a signatory to various treaties.
Maybe, said Mrs Miller's lawyers, but the fact is that UK laws would be changed as a result, without Parliament's say so.
Not so fast, said the Government. In the first place there'll be a Great Repeal Bill in which all current provisions of EU law will be retained, until Parliament repeals them. Moreover there'll be a two year period of negotiation during which there's plenty of opportunity for Parliament to be involved.
The one thing that's immediately obvious about the above is that, until yesterday's judgment, no-one knew what the law was.
How could it be otherwise? The UK has never done anything like this before. The one constant factor in all the earlier House of Lords cases cited to the Court was that none of them covered the same ground. They were persuasive rather than directly on the point.
Moreover if the law had been clear the litigation would never have taken place. The lawyers of one side or the other would have said, "Listen, you're wasting your time here". But none of them did.
If the law had been clear the Court would have reached a unanimous decision. But there was a majority of 8 to 3.
Of course, the Supreme Court is adept at wording its judgments so as to appear that the law has been well-known all along. It has merely clarified what should have been readily apparent.
But this is a fiction. To clarify is to choose, and to choose is to create. The judges have created law. They have decided that the ECA is not merely a conduit down which the law from Europe flows. Even though the Act is not repealed, the effect of withdrawal from the treaties is to change UK law.
I repeat, no-one knew this before Miller.
And here is the overarching consitutional point I mentioned above. The case was brought to stop HMG changing the law without parliamentary consent. But on what basis did the Court make the law to stop the Government? Why, it did so without parliamentary consent.
And here's the real problem of Miller.
If the Government can't make laws without Parliamentary approval, why should the Supreme Court? After all, the Government is made up of individual MPs each elected by tens of thousands of people, gathering together as the largest Parliamentary political unit. In what world does the secretive appointment of eleven lawyers confer greater legitimacy?
The Court has laid itself open to the charge of hypocrisy, doing itself what it says the Government cannot do.
This is what the Supreme Court should have said:
"We accept there is a fundamental clash between two constitutional principles - that of Parliamentary sovereignty and the Royal prerogative. It is impossible to tell from the ECA what was the intention of Parliament at the time the Act was passed, or to derive from the case law any relevant binding principles. This situation has never arisen before.
Both sides have argued persuasively, but the onus is on Mrs Miller to prove her case. We cannot find for Mrs Miller without creating law ourselves. This is something which the Courts should always be reluctant to do, because while they have a distant democratic mandate to adjudicate, they have no mandate whatsoever to legislate. In circumstances where the substance of the issue before us is a dispute about law-making without Parliamentary consent, it would be extremely damaging for the authority and status of the Court to make law ourselves without any such consent. The law is not clear. It is for Parliament to clarify it should it wish to do so, not the Courts. For this reason the we must find for the UK Government".
Yet both the Divisional and Supreme Courts sailed on in their self-regarding way, unaware of the intellectual, moral and political abyss yawning beneath their feet.
Or nearly. Amid many useful things said in the dissenting judgments, thank goodness for this from Lord Reed (Para 240):
"Secondly, and more fundamentally, controls over the exercise of ministerial
powers under the British constitution are not solely, or even primarily, of a legal
character, as Lord Carnwath explains in his judgment. Courts should not overlook
the constitutional importance of ministerial accountability to Parliament. Ministerial
decisions in the exercise of prerogative powers, of greater importance than leaving
the EU, have been taken without any possibility of judicial control: examples include
the declarations of war in 1914 and 1939. For a court to proceed on the basis that if
a prerogative power is capable of being exercised arbitrarily or perversely, it must
necessarily be subject to judicial control, is to base legal doctrine on an assumption
which is foreign to our constitutional traditions. 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."
UPDATE: Here's a link to an article by Mark Elliott, Professor of Public Law at Cambridge University, in Counsel Magazine. At one point Prof Elliott describes the Supreme Court's analysis as "sorely lacking". Ouch.
