The first thing to be said about the decision of the Divisional Court in R (On the Application of Gina Miller and Deir Tozetti Dos Santos) v. Secretary of State for Exiting the European Union  EWHC 2768 is that, with respect, it is wrong. For the avoidance of doubt, that observation is made after a close study of the judgment, which refers to two cases in which I was involved as counsel.
The judgment of the court (Lord Thomas CJ, Sir Thomas Etherton MR and Sales LJ) lacks intellectual rigour. It is also inconsistent. Maguire J’s decision in Northern Ireland, internally inconsistent, treats Thoburn v. Sunderland City Council (Metric Martyrs) as rightly decided when it wasn’t, and having treated Metric Martyrs as right fails to acknowledge that the court declined to follow Factortame. The government has been granted permission to appeal to the Supreme Court, which is likely to overturn the Divisional Court.
The Supreme Court will start to hear argument on 17th December. Lord Neuberger, a nice man, before whom I appeared in a company law test case some years ago, has very properly directed that the appeal will be heard by the entire court. Ms Miller’s with respect pathetic demand that the government accept the decision has been treated with the contempt it deserves. No government is obliged to accept a decision by the lower courts with which it disagrees, let alone on a matter of such importance as an attempt to prevent UK withdrawal from the EU and which is so obviously wrong.
The fundamental flaw in the Divisional Court’s reasoning, if reasoning is not too strong a word, is that it misunderstands the effect of giving notice under Article 50 and misinterprets the ECA72. It assumes that giving notice would affect domestic law when clearly it wouldn’t. Article 50 operates in the international plane only. If the ECA72 were structured in such a way that domestic effect would only be given to those EU treaties to which the UK was a party then yes, withdrawal would affect the rights of British Citizens and EU aliens in the UK including Ms Dos Santos, who is a subject of His Catholic Majesty the King of Spain.
However the EU treaties are listed in the act. In order for those treaties to cease to be law the Act would need to be repealed. The government aren’t even trying to alter domestic law by using the Royal Prerogative. It would be strange to leave the EU and still have the treaties as part of UK law, but Parliament can and does do strange things. The ECA72 was pretty strange to start with.
In fairness, the Divisional Court was led into this egregious error by a tactically disastrous concession from the government’s legal team, none of whom was a specialist constitutional lawyer. It showed, with respect, as did the court’s lack of experience, again with respect, in this area of the law. None of the judges was a specialist in statutory construction either, so they were at a double disadvantage.
The court’s lack of expertise in the areas of law they were called upon to apply showed in the extraordinary way they treated Metric Martyr and Factortame. These decisions are inconsistent – if one is right, the other has to be wrong. In Factortame, the House of Lords, acting well in excess of its constitutional authority, refused to apply an Act of Parliament on the spurious pretext that community law over-rode it. Since the Act in question was passed in 1988 it could not conceivably have been affected by anything done in 1972.
In Metric Martyrs the Divisional Court accepted that Factortame was not binding, because the constitutional principle of Implied Repeal was not argued. It held that Parliament was supreme. In Miller & Dos Santos the court accepts that principle in paragraph 20, then goes on to deny it, without acknowledging the contradiction, in paragraph 38. Paragraph 20 accurately states the law. With respect, paragraph 38 does not.
The court also fails to acknowledge that Metric Martyrs is not binding. That is because the, with respect, novel proposition that we have super-statutes was not put to counsel, indeed in argument the court accepted that we do not. I know. I was there, representing the brave and principled martyrs, one of whom, Steve Thoburn, gave his life, the poor man succumbing to the tremendous strain and stress of the proceedings.
In Miller & Dos Santos the judges treat the ECA72 throughout as a super-statute. Once they did that they were bound to fall into error. Their mistake was so fundamental, with respect, that sound legal reasoning thereafter became impossible. I spotted the dangers well in advance and warned the government’s legal team. They didn’t even summon the courtesy to reply, then blundered, with respect, by making two further fatal concessions: that Metric Martyrs was both rightly decided and binding.
It is sincerely to be hoped that the Supreme Court will be given greater assistance from counsel. Ideally a cross-party Brexit group will appear as intervenors – why should the courts hear only from those who lost the argument in the public square and a government team lacking expertise in constitutional law?
The only other positive than the grant of permission to appeal to emerge is that the decision is limited to Article 50. It does not rule out using the Vienna Convention. Nothing in this decision would stop the government, if it had the cojones, from denouncing the EU treaties tomorrow by giving one year’s notice in accordance with the right to withdraw from multilateral treaties on reasonable notice implicitly recognised by the Vienna Convention on the Law of Treaties.
Furthermore, nothing in the decision purports to limit the executive’s undoubted right under the Law of War to declare general conventional hostilities against any EU member state seeking to block Brexit. We can fight our way out if need be, but thankfully it shouldn’t come to that.