The wheels of justice may ordinarily grind slow, but they have been turning at an almost dizzying speed in the most important constitutional case in living memory.
Since the Government issued its appeal after the dramatic judgement from the Divisional Court to the Supreme Court only a few short weeks ago, it has been linked with a similar claim in the High Court of Northern Ireland (in which the Government was the successful party), and no fewer than five additional parties have been given the right to ‘intervene’ (that is – to be allowed to make submissions to the Supreme Court - even though they were not involved in the Divisional Court hearing).
In this interview, we discussed in particular the potential implications of the intervention of the Lord Advocate (the senior Scottish Law Officer) on behalf of the Scottish Government. I explained that, although not necessarily decisive, the Lord Advocate had made a powerful point in favour of the argument that an Act of Parliament is required before Article 50 can be triggered.
An important part of the background to the case in the Divisional Court was that the European Communities Act 1972 (the Act that gives rights under European law to persons in the United Kingdom) did not contain any provision for exiting the European Union. This allowed the Government to argue, albeit unsuccessfully, that it was able to sign Article 50 due to its powers to conduct foreign affairs without reference to Parliament. The Lord Advocate has now pointed out that as a part of the devolution settlement under the Scotland Act 1998 the Scottish authorities were given powers and duties in relation to EU matters in Scotland, and that these powers and duties can only be amended by an Act of the UK Parliament. As withdrawal from the EU would radically effect the powers of the Scottish authorities it is strongly arguable that an Act of Parliament is required to achieve that end.
We discussed the practical implications for the Brexit process if an Act of Parliament is required. In my view, Parliament is likely to, at minimum, require the government to report regularly on the progress of negotiations. I suggested that once the realities of the likely outcome of the negotiations become clear, resistance to a’ hard Brexit’ is likely to stiffen.
We went on to discuss the implications for the Brexit process if Parliament is involved, and the unease felt in some quarters that the legal challenge could hamper the implementation of the result of the referendum. I explained that although the governing Conservative Party had committed itself to implement the result, referendums do not have a legal effect unless that is agreed in advance by Parliament. Governments can make all sorts of promises and have all sorts of policies they wish to implement, but they must carry them out in accordance with the law of the land.
To listen to the interview in full, see below:
Author and interviewee James Packer of Duncan Lewis is described by sources as a "go-to solicitor for the most difficult public law work" and "a walking encyclopaedia." He specialises in judicial review challenges, UK and EU immigration law and human rights cases. - Chambers & Partners 2016 Guide. James is a specialist in all forms of judicial review challenge, costs litigation, immigration, European Union and human rights matters. He has a significant practice challenging unlawful immigration detention cases with high-net claims for damages and immigration removal decisions.
Duncan Lewis’ Public Law department, recommended by Legal 500 2016 for its depth of experience in immigration and civil liberties challenges, is known by the Legal Aid Agency, the Courts, and the Treasury Solicitor. This enables us to quickly and effectively obtain funding, manage cases with the Court (get quick listings, direct access to Court lawyers etc), and communicate effectively with team leaders at Treasury Solicitors.