Government deploys arguments developed by Policy Exchange in its Supreme Court appeal

December 7, 2016

Jo Maugham QC, a prominent supporter of the Article 50 litigation, remarks: ‘An awful lot – possible all? – of the secondary material the Government is citing is to be found on the website of @judicialpwr’. A welcome tribute, if a little overstated, but it is certainly true that the Government has made important use of Policy Exchange’s Judicial Power Project work.

On the opening day of the hearing, the Government placed central and early reliance on the work of Professors Timothy Endicott and John Finnis for the Judicial Power Project.

While Gina Miller, lead claimant, has described the use of the Royal Prerogative as ‘ancient’ and ‘secretive’, Professor Endicott demonstrates in his paper for the Judicial Power Project that, in fact, triggering Article 50 to leave the EU would be well within the traditional role of the executive in making and unmaking international treaties. Opening his submissions to the Supreme Court, James Eadie QC commended to the 11 judges Professor Timothy Endicott’s lecture, delivered last week at Policy Exchange, a published version of which forms part of the Government’s bundle.

In the afternoon session, Mr Eadie then deployed arguments developed by Professor John Finnis for the Judicial Power Project. First among these were Professor Finnis’s two papers  demonstrating that the domestic reception of the EU Treaties fits the legal structure of the reception of double tax agreements such that executive withdrawal on the international plane. The second was Professor Finnis’ lecture Brexit and the Balance of Our Constitution, delivered as the Sir Thomas More Lecture at Lincoln’s Inn last week and then published by Policy Exchange. The text, also included in the Government’s bundle, explains:

Treaties can have no effect in or on domestic law beyond what Parliament in the exercise of its supreme legislative power authorises. Whether that authorised effect continues – in relation to a particular treaty provision, or in relation to the whole treaty – depends (unless the treaty’s provisions have been written into a statute) on the continuance of that treaty provision or of the whole treaty. That continuance is a matter for foreign governments and entities, or for our executive Government in its conduct of our foreign affairs.

In the second day of the hearing, James Eadie QC returned to the point raised by Professor Finnis concerning the relevance of comparable constitutional provisions Parliament had earlier made for the Bahamas and Barbados. Responding to this in the afternoon session, Lord Pannick QC for the claimants addressed Professor Finnis’ lecture and sought to answer his arguments about the constitutional context of the 1972 Act.

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