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Brexit: the uncertain boundary

2016-10-14 07:59:58

The judicial review on Article 50 got underway in the High Court in London yesterday, with the judgement expected some time in November, well before the Government is expected to invoke the Article, kicking off the formal negotiating process.

Needless to say, the media is making a meal of it, as QC David Pannick put the case that formal notification by ministers alone invoking Crown prerogative - would undermine parliament and "deprive people of their statutory rights".

With commendable speed, the transcript has already been published, alongside the Government resistance which sets out the arguments for those who care to follow them.

The thrust of the plaintiffs' argument, though, is that Article 50 should not be invoked without the direct authorisation of Parliament precisely the issue which the House of Commons debated on Wednesday.

Without it being overtly (or at all) stated, this debate illustrated precisely why the High Court should find for the Government the point being that Parliament has had plenty of opportunities to challenge the executive on the application of Crown prerogative, and has so far not stepped up to the plate.

In putting the case to judicial review, the Courts are being asked to intercede in a matter that rests between parliament and the executive, effectively arbitrating on where the balance of power lies, as between the two institutions.

This, to say the very least, puts the Courts in an invidious position, addressing what Jonathan Sumption called the "uncertain boundary" between judicial and political decision-making. His thesis itself was not without criticism but the man nevertheless points up a crucial fault-line in the system.

To my mind, the High Court is being asked to side with Parliament against the Government, abandoning its neutrality to become a party to a power struggle between the institutions.

It will be interesting to see how the Court responds to this, but I would not be at all surprised if it declined the invitation to get involved. Specifically, it could argue that since Parliament itself has the means and if it cared to exercise it the power to force the issue (not least by bringing down the Government with a vote of confidence), it is neither appropriate nor necessary for the Court to intervene.

In my own career, I have been to judicial review several times, on issues that have been highly politicised, and that is the view the Courts have taken. Regardless of the legal merits of the arguments, it has refused to become overtly politicised.

In essence, the plaintiffs will not overcome the balance of convenience test, where remedy that the plaintiff seeks can be achieved (and should rightly be sought) through political means, while the injury done to the Government, as the defendant, will be so severe as to damage its ability to govern.

Basically, if the intention is to challenge the principle of Crown prerogative, then the Courts are the wrong forum. The place for these arguments is Parliament, and if the legislature is not up to the fight, then it is not for the Courts to stand in its place.

Not only is Article 50 "on trial", therefore, but the entire constitutional system and the outcome could have ramifications which go far beyond this issue. But, bearing in mind that Parliament will have its say (and a vote) before any settlement takes effect, there is nothing at all that the Courts need do to defend people's statutory rights.

If anything certainly in my view this lacklustre Parliament has more involvement than it deserves and far more power than it is capable of exercising effectively. It would not be helpful if the Courts gave more power to this thoroughly inadequate institution.