This speech was being discussed on television last night and has made the papers this morning.
The headlines seemed to suggest that Lady Hale was commenting upon a case which had yet to reach the Supreme Court in a manner which suggested that she had already decided what her decision was going to be.
The speech [full text here] is more nuanced than the headlines suggest, yet one can’t help feeling that it might have been wiser for the topic of the Brexit case to have been avoided altogether given its great sensitivity.
The suggestions about what Parliament should or should not do following any decision are purely gratuitous (one assumes intentionally) and in the light of what the judge says about fundamental rights suggest that a Hale led Supreme Court might be shaping up for an argument in future about who has the final say- Parliament or the Supreme Court.
What follows are extracts from Lady Hale’s speech dealing with the Supreme Court and Parliament.
But the fact that we in the United Kingdom do not have a written Constitution does not mean that we do not have a constitution. We clearly do. But it is different from most other constitutions in that (at least as we have always been taught) its governing principle is that sovereign power is not distributed between the three branches of government but resides solely in Parliament (or strictly, the Queen in Parliament). Parliament can make or unmake any law. Whether there are any limits to that is contested, as we shall see.
We cannot strike down Acts of the UK Parliament. But please do not think that I – or any of my brethren – want us to be able to do that. We are, I think, very comfortable with the role that we do have. This includes the various rules of statutory interpretation which govern the way in which we read legislation and enable us to safeguard fundamental rights and the rule of law. The first is the principle of legality. This means that the UK Parliament is not taken to intend to override fundamental rights or the jurisdiction of the courts by general or ambiguous words. If Parliament wants to interfere with fundamental rights, or to subvert the rule of law, it has to be specific, so that Parliamentarians understand what they are voting for and can face up to the political consequences.
Another relevant principle of statutory construction is now emerging. Just as fundamental rights or the rule of law can only be abrogated by express statutory provision, 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.
Talk of European Union law brings me at long last to a case of such fundamental constitutional importance that, when it does come to the Supreme Court, we plan that all eleven of the current serving Justices shall sit on it. As is well known, the referendum on whether the United Kingdom should leave or remain in the European Union produced a majority of 51.9% in favour of leaving. But that referendum was not legally binding on Parliament.
There is, of course, no doubt that, just as Parliament made the law which brought European Union law into the UK legal order after the UK Government had entered into the accession treaty, Parliament can unmake that law.
The question is the process whereby we arrive at that result. This entails the constitutional division of responsibility and power between the Government and Parliament. Article 50 of the Treaty of the European Union provides that ‘any Member State may decide to withdraw from the Union in accordance with its own constitutional arrangements’ (article 50(1)).
A Member State which decides to withdraw shall notify the European Council of its intention. The Council is then expected to negotiate and agree upon the arrangements for withdrawal with the Member State. These have to be agreed by the Council, acting by a qualified majority, and by the European Parliament (article 50(2)). However, the Treaties shall cease to apply to the State in question from the date of the entry into force of that agreement or, failing that, two years after the notification, unless the Council unanimously agrees to extend the period (article 50(3)).
The issue is whether giving that notification 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. The argument is that the European Communities Act 1972 grants rights to individuals and others which will automatically be lost if the Treaties cease to apply. Such a result, it is said, can only be achieved by an Act of Parliament.
Another question is 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.
The contrary argument is that the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown (what you would call the executive power of the Federation).
The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on 13 which the referendum was undertaken was that the Government would give effect to the result. Beginning the process would not change the law.
Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union. The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear.
But the case is destined for our Court, so I must say no more. The case raises difficult and delicate issues about the constitutional relationship between Government and Parliament. What is meant by the exercise of the executive power of the State? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the State?
We do not have a written Constitution to tell us the answer. But I doubt whether many written Constitutions would tell us the answer either…
Perhaps significantly, the Government has given up the argument that the issue is not justiciable in our courts. To that extent, at least, it is accepted that we are indeed the guardians of the Constitution: if only we knew what it meant.”
[Paragraphing added for ease of reading].