After the lynch mob of outrage stirred up by the recent Divisional Court ruling on Article 50, it is a brave judge indeed who would say anything in public about the question of whether and how Parliament (i.e. the legislature) needs to approve the notification of the European Council under Article 50 of the UK’s intention to leave the EU.
Baroness Hale was therefore perhaps pushing the envelope of bold courage to make a speech in Malaysia on 7 November and refer to that precise issue before the Supreme Court have heard the case.
Much of what she says was fairly mainstream UK constitutional law lesson 1.1, e.g. that the UK constitution is different from most other countries in that its governing principle is that sovereign power is not distributed between the three branches of government (executive, legal and judicial), but resides solely in Parliament. “Parliament can make or unmake any law. Whether there are any limits to that is contested, as we shall see.”
She also gave an interesting insight into how she at least sees the Supreme Court to have become ‘the guardian of the constitution’ –
- It gives rulings upon the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland.
- Judicial review – “In this we see ourselves as the servants of the sovereign legislature” keeping the Government and Executive within the powers which Parliament has given them.
- It protections fundamental rights from encroachment by the State
Furthermore, there is possibly a hint that she, as the Divisional Court below her did, may seek to approach the Article 50 case as very much a question of statutory interpretation – “rules of statutory interpretation which govern the way in which we read legislation and enable us to safeguard fundamental rights and the rule law.” These rules were (1) the principle of legality and (2) that “a statute of fundamental constitutional importance, such as the European Communities Act 1972 itself, cannot be impliedly repealed or amended by a later ordinary statute. It has to be done expressly.”
The question that Baroness Hale may now regret having posed was “whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.” As has since been accepted by the Supreme Court spokesman who defended her speech, this question was not dealt with in the High Court.
In reality, Baroness Hale has done no more than air a question that has been raised publicly, and indeed a question that may well be addressed in the forthcoming Supreme Court hearing. She did not state what her own opinion was on this, or on the issue that was explicitly before the High Court, namely whether giving notification to the European Council falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. However, given the current febrile mood surrounding any judicial pronouncements on this issue, perhaps her speech on the topic of the Supreme Court as guardian of the constitution could have diplomatically left her audience without a reference to the current chapter in its development as such a guardian, rather than risk the adverse comment that has already been occasioned.