The Spectator’s Notes | 26 January 2017

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.