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The Spectator's Notes

Lord Reed’s dissenting judgment in the Supreme Court is spot on

Also in the Spectator’s Notes: Albert Hall economics; Northern Ireland’s boiler scandal; the problem with Green policies

28 January 2017

9:00 AM

28 January 2017

9:00 AM

The English tradition of dissenting judgments in important civil cases is a good one. They are often better than the majority view, because they tend to be advanced by judges who resist the self-aggrandisement of their profession. In the Miller case on triggering Article 50, before the Supreme Court, Lords Reed, Carnwath and Hughes dissented from the other eight. This is what Lord Reed says: ‘…the argument that withdrawal from the EU would alter domestic law and destroy statutory rights, and therefore cannot be undertaken without a further Act of Parliament, has to be rejected even if one accepts that the 1972 Act creates statutory rights and that withdrawal will alter the law of the land. It has to be rejected because it ignores the conditional basis on which the 1972 Act gives effect to EU law. If Parliament grants rights on the basis, express or implied, that they will expire in certain circumstances, then no further legislation is needed if those circumstances occur. If those circumstances comprise the UK’s withdrawal from a treaty, the rights are not revoked by the Crown’s exercise of prerogative powers: they are revoked by the operation of the Act of Parliament itself.’ That’s it, in a nutshell.

Lord Reed also makes this more general pronouncement: ‘…controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character. Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’ Lord Reed is right, as the speed of change since the High Court first looked at the case in the autumn shows. As the majority in the Supreme Court sat there attempting ‘the legalisation of political issues’, events have left them high and dry.


Of all the wrongs that exist in the world, the position of seatholders in the Albert Hall surely does not rank very high. Yet the subject can be relied on to excite indignation in the media at regular intervals. We are in one of these periods just now. It is said to be disgraceful that members can sell their boxes, seats and tickets, and that the thing is ‘unregulated’. In fact, the system was established by Act of Parliament, and was a typical example of Victorian ingenuity. By buying permanent seats or boxes, the people doing so (who thus became ‘the members’) contributed the money without which the enterprise could not have been completed or sustained, gaining a benefit for themselves at the same time. Around a fifth of the seats thus ensured that the other four fifths could exist. The system of finance and governance gives the members a permanent interest in the welfare of the Albert Hall — because otherwise the value of what they own would collapse. Between them, the 330 members nowadays voluntarily transfer £5 million a year to the running of the place. In all its 150 years, the Albert Hall has never had to beg for government money for running costs, because it has an economy which is self-sustaining. It is one of the most painless examples of public benefit from private money in the whole history of the arts. Its system should be copied, not cursed. Just now, for example, Sir Simon Rattle wants a new dedicated auditorium for the London Symphony Orchestra because the acoustics of the existing ones the LSO makes do with are not good enough. But his ambition for a ‘world-class’ hall is hampered by having to fight for public funds in their various forms. The answer is to be found in Kensington Gore.

Visiting Northern Ireland last autumn, I met a very prosperous man who enthused to me about the Renewable Heat Incentive in the province. It paid him to install wood-pellet boilers and heat his rural business. After the political scandal broke, I understood why he was so happy. The RHI, as managed in Northern Ireland, had no upper limit, so there was no cheating involved in getting as many non-domestic boilers as you could manage. If you installed the boiler you got paid £1.60 for every £1 of pellets you burned, without limit. I gather there was particularly massive take-up by members of the Democratic Unionist Party, and their Free Presbyterian churches glow red day and night in consequence. The obligations already incurred amount to £500 million for the Northern Ireland Executive, more than £250 per citizen. The farce gave Sinn Fein the excuse it wanted to pull the plug on the Executive, provoking elections.

The politics of climate change will eventually turn, partly because the policies are often so un-Green in their effects. Wood-burning is not good for the environment. Nor is diesel. The government paid people to switch to diesel cars to help save the planet, thus damaging the breathing of thousands. At the Global Warming Policy Foundation last week, Fritz Varenholt, an environmentalist, scientist and SPD adviser in Germany, reported the increasing split between Greens and conservationists there. You can either have constantly functioning wind farms or healthy bird populations, but not both. The common buzzard and the red kite are now endangered in Germany. To get the amount of power generated by one typical coal-fired German power station from renewable sources, you need to annex about 500 square kilometres. By their nature, wind farms require lonely, often beautiful sites of great environmental interest. Their supporters are killing the thing they think they love.


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