Phillip Souta speaks to Jolyon Maugham QC who was centre stage of the legal battles that happened around Brexit. Was trying to stop Brexit in the courts right and what might its legacy be?
Jolyon Maugham QC spoke to me a few weeks before the UK general election. Brexit has now happened, but the legal battles that preceeded it continue to resonate. He is a campaigning barrister who has been involved in many of the most controversial Brexit-related cases of the last few years. Six days after the EU withdrawal referendum in 2016 he started crowd-funding for the first Gina Miller case on whether the government should be able to give the article 50 of the Treaty on European Union notice without reference to Parliament and was more recently involved in the second Miller case on prorogation.
There have been a lot of cases. There was an initial case in Dublin to establish whether article 50 could be revoked. There was a case against the Electoral Commission to establish whether or not the it had correctly applied the law. There was a case in the Netherlands to establish whether EU citizenship was a right that would remain with UK citizens in the EU on Brexit day. There was a case to establish whether an emergency Statutory Instrument made to deal with medicine shortages in case of ‘no deal’ was ultra vires. There was a case seeking to force the Prime Minister to comply with the terms of the EU Withdrawal (No.2) Act, known as the ‘Benn Act’. There was a case brought in his name to establish the lawfulness of the Withdrawal Agreement. There was the Wightman case, which established the unilateral revocability of article 50, and the case against the Secretary of State for Exiting the European Union to procure the release of the Whitehall cross-sector analysis of the economic impacts of Brexit. He has been involved in all of the successful so-called Brexit cases, and several of the unsuccessful ones.
The Conservative party promised to “look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts [and] the functioning of the Royal Prerogative…” and to “ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” It is difficult to conclude that those promises are not at least somewhat linked to the defeats suffered by the government in the courts, at the hands of Gina Miller, Joanna Cherry MP, Jolyon Maugham QC, David Pannick QC, and others.
Phillip Souta (PS): What links all of these cases together, apart from Brexit?
Jolyon Maugham (JM): They all raise governance type concerns. The sorts of concerns that you’d expect a lawyer to have.
PS: Were you trying to stop Brexit?
JM: In the fairly robust political debates around Brexit, I’m often said to be a “wrecker” or “using my legal skills to block Brexit”, but the truth is rather more nuanced. In 2016 when article 50 was invoked I said I would have invoked it even if I had been an MP in a heavily remain area. I have deliberately chosen not to be party to any of the cases that have sought to block Brexit, and fundamentally, I suppose I have always been guided by one of two principles. One is enabling Parliament to do its job and the other is ameliorating the impact of Brexit on UK citizens. The Netherlands case would fall into that last category.
There have been cases that have sought to stop Brexit. There was a case that contended that the article 50 notice was not validly served, there was a case that asserted that it was irrational and therefore unlawful for the PM to trigger the article 50 notice at a point in time in which she knew or ought to have known that there was unlawfulness in the conduct of the referendum. I haven’t supported any of those cases because I think there is rightly a limit as to what the law should be able to do. Ultimately the decision whether we should leave the EU is a political decision and has to be made by political actors who are parliamentarians and also in the real world the electorate in the 2016 referendum.
Fundamentally, if you ask judges to take the place of those political actors you’re asking judges to do something which, to use a fairly coarse expression, is constitutionally improper.
What makes this a difficult sphere is that you need to have a pretty acute sense of not just black letter law, but also real politics to be able to draw that line sensitively to the context of every case. The line is quite context specific, and you need to have that acute sense of what questions are questions properly for the political sphere and what questions are properly legal questions for the government sphere. What has helped me bring all the successful Brexit challenges, has been fundamentally an appreciation of where that line lies.
PS: Since you are originating some of these cases do you have to think quite carefully about what you think is normatively the right thing to do, and where those limits are in deciding what case you want to be involved in or what you yourself want to bring in your own name?
JM: Absolutely, I originated every single one of those cases, and originate is the right way to put it. I saw the point and decided whether I wanted to take it. Having decided that I did, I then instructed the legal team, found the right lawyers, and put together a coalition of petitioners or claimants who brought the case with me. So in the Cherry case, there were upwards of seventy petitioners, including me and parliamentarians. Some of those cases, two of them at any rate, the Cherry case and the first Miller case, would have happened anyway, but I do not think, for example, that Wightman would have.
PS: Let’s talk about the interests of the people, democratic legitimacy and the limits of the executive.
JM: For sure. So the way I look at this is as follows. We had an advisory referendum and both of those words are important. The word “referendum” is important because no-one should deny the political importance of that vote. The people did vote in 2016 to leave and they voted in 2016 to leave expecting that if leave won we would leave the EU. And I just don’t think it’s legitimate to attempt to deny the real political force of that vote. But that it was “advisory” also cannot be ignored. So the most meaningful consequence of it being advisory is that unlike, for example, with the Alternative Vote referendum, Parliament, in enacting the European Union Referendum Act 2015, left a number of tasks for it still to do. It left itself with a considerable discretion as to what to do in consequence of that vote.
I think it’s fair to say, speaking not just as a lawyer but as an observer, that Parliament did in 2015 contemplate the possibility that Brexit might not happen, because it did not enact legislation that following a leave vote we would [automatically] leave. It just enacted an advisory referendum. And so absolutely following that vote it should have done what it did, which was to set out to deliver the UK’s departure from the EU. But when those, particularly in the executive, or on the government benches, talk about the illegitimacy of Parliament, particularly the illegitimacy of Parliament seeking to clog the exercise of choices about what Brexit means by the executive, it seems to ignore the fact that our supreme Parliament in enacting the referendum left choices to itself about whether we should Brexit and what form Brexit should take. It left to itself an ongoing supervisory role.
It also ignores, perhaps even more importantly, the question of who has democratic legitimacy to make those choices. Is it for the executive to make them, or is it for Parliament to make them? And fundamentally, my view is that with decisions of this moment, especially where you have minority governments, the appropriate constitutional actor is Parliament. And it is entirely illegitimate for the executive to try and shove Parliament out the way.
So the Wightman case was about making room for Parliament should it come to want to revoke to be able to revoke. The prorogation case was about ensuring that Parliament was able to play the role that I believe our constitution reserves to it in this process, which is of continuing to manage Brexit. The Gina Miller case was about whether Parliament had a function in terms of executing the political mandate of the 2016 referendum. Those cases and the others I have mentioned are fundamentally about Parliamentary power. The so-called Benn Act case, the Vince Cable case, was about securing the observance by the Prime Minister of the Benn Act; it was about securing parliamentary power. And indeed the section 55 [of the Taxation (Cross-border Trade) Act 2018] case was about securing that the executive acted in accordance with negotiating red lines that Parliament laid down and which the Withdrawal Agreement has ignored. So all of that stems from – and I could tie other cases in to that narrative as well – my core belief that the 2015 Act left a lot undone and the right constitutional actor to do what was left undone was Parliament.
PS: Once Brexit happens, what do you think the legacy of these cases will be? What if any legacy do these cases have in terms of how the executive behaves and secondly do you give any credence to the possibility that any of this could make a move towards a politicised court more likely?
JM: Well let me make two points. The first is that it seems to me to ignore reality to pretend that the Supreme Court made a political decision in the Cherry/Miller case. There were two possible answers the Supreme Court could have given, one was that it was legitimate for the executive to prorogue Parliament and one that it was illegitimate for the executive to prorogue Parliament and neither of those answers are without political consequence. Either would have been of enormous political moment. So to couch one as being political without recognising that it was no more political than the other is just to ignore a pretty simple reality.
But the real question that you asked was about the continued impact of these cases going forward and I think the answer to that question depends on whether you are a political optimist or a political pessimist.
If you’re an optimist, and you see our politics “returning to normal” when Brexit is done, then you would expect challenges to what are fundamentally issues of basic governance by the executive to fall into abeyance; you would assume that government going forward will conduct itself properly in accordance with constitutional convention and there will be no need for this sort of confrontation between those acting in the interests of parliament and those acting in the interest of the executive.
If you’re a pessimist and you see Brexit as not really being an end in itself but as being an important initial battle in, we call it a culture war, but it’s fundamentally a political war between the left and right – I know that’s a rather clumsy way to put it – but if you’re a pessimist, you don’t see the need for constitutional challenge falling away after Brexit. You instead see these cases being the first few in a long line of critically important judicial opinions on fundamental constitutional questions. I’m very much, on that front at least, a pessimist. What underlies Brexit for me is a diminution of trust in the establishment, and I don’t see that the last few years have restored trust in the establishment, quite the contrary.
PS: Judges and lawyers have been labelled as traitors. Someone offered five thousand pounds to anyone who ran over Gina Miller – and was convicted of sending malicious communications. There has been a menacing undercurrent of danger and threat of violence, and I wonder: how are lawyers are supposed to deal with that?
JM: Well we have had press fury at judges before.
PS: That’s true.
JM: There was a House of Lords Constitution Committee report on tabloid antipathy to the judiciary and I think Paul Dacre and Tony Blair gave evidence. Charlie Falconer – then Lord Chancellor – was roundly criticised for his attacks on the judiciary, so attacks on the judiciary by tabloids and indeed by an executive which is inconvenienced by judicial rulings are nothing new.
That having been said, something has definitely changed. Before the Supreme Court gave its decision, I was telling journalists that it was clear to me that the Supreme Court was going to work very hard for a unanimous decision in the prorogation case. I remember telling journalists at the end of the hearing that the longer they took to hand out a decision the more likely it would be that the decision would be unanimous. I have no evidence for this proposition but I would expect there would have been discussions in the Supreme Court around the threat to the rule of law that the executive in the mood that it was then in posed, and the need for unanimity to protect the rule of law and the desirability of the doubters to fall into line for a greater good.
Paradoxically, I believe a less aggressive executive would have suffered a less humiliating defeat. You can make a similar point about the first Miller case because it’s pretty obvious to me that the Supreme Court really ought to have referred the revocability of article 50 to the Court of Justice in that case and if it had the Government would likely have won. Behind the scenes, I was lobbying the lawyers, and indeed the claimants, vigorously for them to ask the Supreme Court to do exactly that.
Assume a different world. Assume a world in which the Supreme Court decided the Miller case the same way; Parliament then said to the executive you must negotiate single market membership and the executive negotiated single market membership; I brought the Wightman case anyway and the Court of Justice said – as it did – that article 50 is revocable. This would mean that we would have later found out that the first Miller decision was very likely wrongly decided. The only difference between that assumed world and the real world that actually happened is that in the assumed world Parliament tied the executive’s hands as to the latter’s negotiating position. But just make that assumption, put yourself into that parallel universe.
The executive post the Wightman case would have been mightily annoyed that the Supreme Court had handed down a decision that was wrong, and that had wrongly enabled Parliament to tie the executive’s hands unlawfully. Wrongly because Miller I was decided partly on the basis that article 50 was irrevocable whereas we now know that it was revocable. If that had happened it would have been a profound act of judicial overreach by the Supreme Court and one that would have reshaped the course of our history. And it’s worth reflecting on why the Supreme Court did what it did. I believe that the reason that it did it, the reason it didn’t refer the question of revocability of article 50 to the Court of Justice in 2017, was because it did not believe that the rule of law then was sufficiently strong to withstand the change of political temperature that would have been the consequence of the Court of Justice having a role in the shape of Brexit. I think it deliberately chose the path of judicial overreach– it deliberately decided to do something that was in one sense judicially illegitimate, for what it perceived to be the greater good.
The point I’m trying to make is, the particular climate of our times is shaping how judges perceive their role. Sometimes they are taking a view about what the survival of the rule of law in a broader sense requires. And this does not always mean the same thing as acting as the law dictates in a narrower sense. And sometimes, on the other hand, they are biting their tongue where they would rather not.
And so I think at least one of the predicates behind your question is whether the rule of law is under particular threat at the moment. I do think the rule of law is under particular threat at the moment. You can see this in the Vince Cable case. Once the application for an extension was made, the Government argued that the case had finished. We said ‘no’ and we said that we would like the hearing to be adjourned until the PM agreed any offer of an extension that the EU may make. And the Inner House agreed to adjourn the hearing, so it was standing ready, standing over the executive to ensure it complied with the rule of law. That’s quite extraordinary if you stop to think about it.
As to the violence, I don’t think it’s meaningfully true, so far as I am aware at least, to say that lawyers are being subject to death threats and threats to violence. I mean I have had a number of death threats – there was a death threat yesterday for example on Twitter – but I don’t get those death threats because I’m a lawyer – I get those death threats because I am a political actor in this space. I’m a political actor raising legal points but you can tell I am a political actor because the people I bring these cases with – my fellow petitioners – are almost invariably MPs.
PS: It is difficult to simplify all of this, and much too easy to do the opposite. These are all quite nuanced points.
JM: They are nuanced points. I listened this morning to part of desert island disks and the subject was a lawyer, Kimberly Motley, working in Afghanistan doing especially difficult cases in a very dangerous and hostile context – I mean immeasurably more dangerous than the United Kingdom is. And she was asked how much she regretted the threats to her life, and she said ‘well I knew what space I was getting into. If you are a boxer, you can’t complain about getting punched.’ You know, I have chosen to enter the space I have entered. I have chosen to enter it knowing the very toxic nature of that space, and indeed one of the reasons I have chosen to enter it is because it is important but it has been too toxic for other people and not everyone is personally well equipped to deal with that toxicity. And that fact makes it especially important that those of us that can, do, lest no one does. So it’s obviously not desirable, I don’t enjoy it, but I don’t ask for sympathy.
the European Advocate 