The notion that Parliament needs the courts’ help to manage its relationship with Government actually undermines Parliamentary Sovereignty and wrongly puts unaccountable judges in overall control of the whole constitutional system. Most dispiriting is the extent to which this notion suggests, and so further incites, the mistaken assumption that the Parliamentary system and democratic accountability, on their own, lack the capacity to control politics.
A political process was in train in which some in Parliament were seeking closer Parliamentary supervision of the art. 50 process. This process should have been left to run its Parliamentary course. The courts abuse their proper function by taking sides to choose the winner in an argument in Parliament that was otherwise likely to have ended in some form of accommodation on issues going way beyond the art. 50 notification.
It has always been impossible, in practice, to leave the EU without Parliament’s approval in the form of legislation – what is now being called “the Great Repeal Bill”. This is why, in practical terms, the Government has always had to take account of Parliamentary opinion before giving the art. 50 notification. But, it is absurd to suggest that legal precedent or principle can determine, in a constantly developing political situation, the milestones for which Parliament’s prior approval is necessary, as opposed, say, to its retrospective ratification.
My view was that the constitutionally respectable course would have been to delay an art. 50 notification until the implementing Bill had received a second reading in the Commons. It would be prudent to start the process only after a clear signal from the elected House of its willingness to see the process completed. The second reading trigger would be consistent with established constitutional convention on using existing powers in an anticipatory way, while legislation is still before Parliament, to facilitate the legislation’s speedy implementation after the legislation passes.
It is self-delusional for anyone to believe that the courts can prescribe a process for resolving a political dispute without the choice of process having an influence – possibly a decisive one – on its outcome. It is impossible to prescribe the process in a politically impartial way; and to exercise influence without assessing or caring what political outcome is made more likely by doing so is highly irresponsible.
Sir Stephen Laws KCB, QC(Hon), LLD(Hon) is a former First Parliamentary Counsel (2006-2012). He is Senior Associate Research Fellow at the Institute of Advanced Legal Studies, an Honorary Senior Research Associate at University College London and an Honorary Fellow of the University of Kent Law School.
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