MH Update Winter 2016

Thursday 8th December, 2016


Thank you for taking some time to look through our update.

Appropriately enough it seems that nobody is certain who first wrote that the only certain things in life are death and taxes. Right now, however, it would be quite welcome if a few more things in the business and political world were certain as seemingly every commentary on those topics ends with a statement to the effect that – frankly at the moment, it’s anyone’s guess.

One such uncertainty (although one which will be resolved reasonably soon) is the legal situation concerning Article 50 in respect of which the law has assumed an interestingly prominent role, first in the High Court and then in the Supreme Court with all eleven of the Supreme Court Judges sitting.

As the case examines the balance between the Crown (i.e. the Government acting on its own) and the Crown in Parliament (i.e. the Government acting through Parliament) and the extent to which the Crown can act without recourse to Parliament, it goes to the heart of what our democracy means.

That right to act without recourse to Parliament is referred to as the Crown Prerogative. The Government considers that the Crown Prerogative exists to allow it to serve notice under Article 50 on its own.  Mrs Miller’s argument is that serving notice will have the effect of terminating legislation and the rights of citizens and that the Crown Prerogative does not extend so far.

This has highlighted some stark differences between politics, public perception and the law. The Referendum Act 2015, which was the act specifically governing the EU referendum, does not make that referendum result binding as a matter of law.  It could have done so but it did not.  Had it done so then the case would almost certainly not be taking place.  On the other hand, as a matter of politics the referendum result will in effect be binding as the House of Commons would not vote against it as regards Article 50.  Public perception amongst Brexiteers certainly considers it binding – hence the vitriolic headlines after the High Court judgment.   In the court case however both sides accept that the referendum is not binding and the arguments instead focus on Crown Prerogative so the legal debate is quite different from simply whether the referendum is binding or not.

Personally I think the Government is likely to lose in the Supreme Court but that the House of Commons will vote in favour of serving notice. I suspect that the draftsman of the Referendum Act 2015 did not have the Crown Prerogative in mind, that the court case was not anticipated and that the argument from the Government has been assembled after the event to fit the desired result.   But then I thought we would vote to remain in the EU and that Hillary Clinton would beat Donald Trump, so my confidence in this prediction is tempered by that rather poor record.  I will take plaudits or brickbats in the next MH Update when the result is known.  Feel free to claim a beer from me if I turn out to be wrong.

One thing that you can say for certain about this case is that, as Mrs Miller and her friends have been crowd funded, it has been good PR for the crowd funding platforms!

Best wishes for Christmas and the New Year,

Jonathan Pearce