The Article 50 Hearing

On the last day​ of the Article 50 hearing before the Supreme Court, Lord Kerr, one of 11 justices hearing the appeal, looked pointedly at James Eadie QC, who was responding on behalf of the Secretary of State for Exiting the European Union. Kerr accused Eadie of ‘building quite an edifice on the phrase “from time to time”’. It was a fair enough point, and it came none too soon, given that the phrase had been spoken no fewer than 46 times in four days. The justices are men (and one woman) of perhaps meagre excitability, yet a number of them evidently found ‘from time to time’ irritating, perhaps because it offers no great or obvious guidance as to exactly when the government can do what the hell it likes.

Mr Eadie is known in the Silk business as the ‘Treasury Devil’. He is the man to whom the government turns when the going gets tough, and it does get tough, from time to time, especially when language gets too heavy for the executive branch. Plain speech has perhaps never been more overworked than it is now when being handled by those who seek to make Britain great again, but Eadie wanted to elevate the tone, reasoning over the course of his submission that the royal prerogative is a thing of beauty to deploy whenever. Its loveliness increases with its capacity to expedite measures unfavourable to anxious politicians. Eadie’s waxing lyrical was enjoyable, but his stiff reliance on the meaning of ‘from time to time’ began to grate. Did the phrase just mean ‘whenever’? Or did it mean ‘as seems natural’? When is ‘from time to time’, and is it now? And how is it different from ‘now and then’?

The paragraph that started all the trouble, and all the verbal, is to be found in Section Two, Subsection 1 of the European Communities Act (1972), under the heading ‘General Implementation of Treaties’. It’s a long sentence packed with dynamite. ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.’

In other words, you wouldn’t need a new Act of Parliament every time some new treaty from Europe affected the law. That would happen, the act said, ‘from time to time’, and it did happen, all the time, in the last 44 years. But the big question for us now, and for the Supreme Court, due to deliver its judgment at the end of January, concerns when, in the realm of ‘from time to time’, one time is bigger than another, or too big a time offering too irrevocable a change to take straight legal effect. A plan to leave the European Union altogether, based on a referendum with no legal authority (a referendum is simply an opinion poll on stilts), should not perhaps be treated as in the class of things ‘from time to time’ created or arising under treaties, but as a seismic event with colossal constitutional implications, especially in a kingdom that has certain powers and relationships resting with devolved assemblies. In such an instance as this, promising a loss of rights and changes to the law of the land, is it not natural in a parliamentary democracy to turn to Parliament itself? When is it not an abuse of power to deploy the royal prerogative to supplant the authority of Parliament?

Lord Wilson at one point spoke for the Roundheads. ‘This phrase “from time to time”,’ he asked, ‘is that simply talking about changes in European law, changes from time to time in European law, or do you say that the phrase also encompasses rights being changed and remedies being no longer provided for as a result of withdrawal from the EU?’

‘My Lord,’ Mr Eadie said, ‘I respectfully submit that it is a recognition that – and I will come to develop this point – the rights that are created are inherently susceptible to change.’

‘But change where?’

‘Change at the EU level, principally by exercise of government action.’

This was a fudge, seeking to suggest that the phrase ‘from time to time’ might retroactively serve as a prenuptial agreement. On the wedding day in 1972, the wording, we are now to understand, gave the UK a mechanism for opting out of the marriage. There was a nice exchange between the justices when Mr Eadie attempted to elucidate the point. ‘It is a bit difficult,’ Baron Mance of Frognal said, ‘to say withdrawal was in [their] minds … I would have thought it was the last thing that was in your mind when you were getting married.’

‘Speak for yourself,’ said Lord Neuberger, president of the justices.

‘I am not going anywhere near that one,’ Mr Eadie replied.

By any standard, a divorce is not a change that may occur ‘from time to time’: it is at the very least a repeal, and when it comes to common law, a repeal, involving a withdrawal of rights, would normally require an Act of Parliament. Under the Bill of Rights, a royal prerogative to dispense with laws simply does not exist, a point made with biting eloquence by Richard Gordon QC, speaking on the last day for Wales. Rights cannot lapse by government edict, unless we accept that what we are doing with Brexit – in a post-referendum fever – is throwing out the Bill of Rights in order to ‘bring the country together’, as the Daily Mail and Theresa May say we must. Lord Keen, the advocate-general for Scotland, a former chairman of the Scottish Conservatives, has a lot of time for ‘from time to time’, and he feels that the 2015 act which allowed the Brexit referendum was, in itself, a kind of grant, obliging the government to carry forth the business without discussion. It is ‘poetic or romantic licence’, he said, to imagine that the devolved powers should have a say if their people voted differently.

This is fighting talk. And Helen Mountfield QC, who was crowdfunded by a large group of interested parties who wish the High Court judgment to be upheld, pulled back the curtain on the government’s Wizard of Oz-like manipulations. Their submissions, she said, are ‘in effect to say that the government can change the constitution in a radical way, because Parliament has never said that it can’t’. The Secretary of State for Exiting the European Union has reasons of his own, perhaps, for treating the 1972 act as an empty vessel, which can be filled up or emptied at will, by using the prerogative power. To Mountfield, the words ‘from time to time’ were indeed the crux of the case. ‘It is significant,’ she said, ‘that the words “from time to time” come under the rights etc which flow from the treaties … it is the rights from time to time, not the treaties from time to time. The scope of the treaties having been established … is for the rights from time to time under the treaties, but not the treaties themselves … Those have been fixed by Parliament. Given that they have been fixed by Parliament, what follows is that the directly affected rights which are created by the treaties themselves are immutable, rights of free movement and non-discrimination and so on, because they are rights under the treaties; and the treaties are the treaties that Parliament says are the treaties.’

And so to bed. From time to time, what we think is just a passing thing turns out to be immutable. Our domestic scene, touched by European laws ‘from time to time’ for 44 years, has in fact been transformed by them. It may be that government edict in partnership with popular whim can say goodbye to all that. But not without a fight. The government’s claim to a very questionable prerogative is already losing them friends where friends they scarcely had in the first place. I predict that Scotland will eventually leave as a result of this high-handedness.