So, the Government’s appeal over its power to trigger Article 50 of the Lisbon Treaty to leave the EU, has gone to the Supreme Court. It is a process of which I disapprove both in principle and on practical considerations.
I was opposed to creating the Supreme Court in the first place. It was preceded by the ‘Law Lords’, more properly called the Lords of Appeal in Ordinary: they sat as part of a parliamentary process as members of the House of Lords. I was brought up with the doctrine that the ‘High Court of Parliament’ was our highest court and that no other court could question proceedings in Parliament.
Tony Blair’s downgrading of the role of Lord Chancellor and the creation of a new supreme court separate from Parliament, struck me as an unwise decision, potentially setting Parliament and the courts against one another. I believe that it is the proper role of Parliament to hold government ministers to account, and not for the judges to do so.
On practical grounds, I think the Government might have been wiser to have simply accepted the High Court’s judgement that parliamentary approval was required to trigger article 50, and to have brought the necessary measure before Parliament, rather than seeking to appeal to the Supreme Court.
The Government however, believes that there is an important point of principle about the use by ministers of the Crown Prerogative, which needs to be properly settled. Well, then let it be settled in Parliament with legislation. One of the most important lessons I learnt at school was ‘if you are not going to like the answer, then don’t ask the question’.
There is now every possibility that the judges will settle the matter in a way that constrains ministerial use of prerogative powers that will have much wider restrictions on effective government. Even worse, the appeal has provided for the Scottish Executive to join in the legal action. What on earth will be the outcome if the court rules that the Government must first seek the consent of the Scottish Parliament before triggering Article 50?
‘Sufficient unto the day is the trouble thereof’. Perhaps it’s unwise to worry ourselves with speculations about all the things that could go wrong. It is possible, after all, that the Government might just win the appeal. In any event, hold on to your seats: we may be in for a bumpy ride; It certainly isn’t going to be dull.