Lawyers, Brexit, and the Supreme Court: An Unprofessional Profession (Ron Olden)


Ronald Olden

Observing the Supreme Court Brexit proceedings confirmed in my mind the minimal skills required to be a ‘lawyer’. The quality of the debate was abysmal and there was little focus on the straightforward actual issue in the case.

There was a definite flavour of what we routinely see in civil court proceedings. There is no proper ‘due process’ whatsoever. There is not and never has been ‘rule of law’ in the UK. We congratulate ourselves on our ‘rule of law’, but that’s just lazy wishful thinking. What we have is rule by judges, which is similar in its fundamental nature to the systems operating in the worst regimes in the world.

The legal ‘profession’ is a paid occupation. It’s only called a ‘profession’ because it decides who can practice as a lawyer and therefore, like a Trade Union is a ‘closed shop’. But it’s much worse than any other Trade Union. This Trade Union effectively operates the courts. Judges all have to be members of the Legal Profession. They become judges by a mysterious selection process. There’s no such thing as a proper ‘professional’ judge. They’re just players who’ve been picked by other players and former players to act as referees.

There’s no independent quality control whatsoever in the legal profession and judges are chosen from that ‘profession’ by other judges with little external input. The Legal Profession  is a State within a State, and is one of the most pernicious institutions in the country. It’s like putting the National Health Service under the control of the various Health Service Unions and leaving it wholly unaccountable to anyone at all.

Another example might be to compare the arrangement with putting the criminal courts under the control of the Police Federation. But in reality it’s even worse than that, because the criminal courts only affect the rights of individuals who come before them. And to be fair, reasonable standards do operate in the criminal courts, not least because the criminal law is more carefully circumscribed than civil law, so judges have less room for abuse. And for the most part issues of fact in criminal proceedings are decided by jury. And juries take their responsibilities far more seriously than do lawyers and judges.

The judges in this Brexit case however are considering civil proceedings. Civil proceedings are very different from criminal proceedings. Basically the judges are acting as referees  between two parties who disagree on something. But this claim bought by Gina Miller and others is a very serious dispute indeed. These judges are effectively determining the fate of the Nation and placing themselves above the authority of Parliament, the Crown, and the  people. Theoretically they are supposed to be determining what the constitutional law is. But owing to the circumstances of this case and the lack of any unambiguous legal precedent, they are in effect making the law. They are writing the constitution.

The judges in the Supreme Court last week however, failed to rise to the occasion and appeared to be doing what civil court judges always do, that is, to decide the outcome they want prior to the hearing, and then steer proceedings in such a way as to arrive at it. The grossly overpaid legal counsel are part of the game. They get paid whatever the outcome.

There is ample room for judicial discretion on this Brexit case, because the central issues (although not remotely complicated), are novel points of law. The judges can quite properly come down on one side or the other provided that they conduct the enquiry in a proper and impartial manner. But what some of us object to is the dishonesty which judges regularly appear to exhibit in arriving at their conclusions.

When it suits them, judges insist on observing legal precedent to the letter. But when it doesn’t, they ignore it altogether. And in civil proceedings where issues of fact (as opposed to law) have to be determined it is, when they think it helps justify the outcome they want, not uncommon for them to wilfully misrepresent the evidence they have heard, or ignore it altogether. And there’s no appeal against findings of fact, even when it’s possible to provide documentary evidence that the findings must be wrong. In most civil proceedings judges assume the role of judge and jury.

This arrangement creates anger and mistrust amongst parties who have an interest in the outcome of the proceedings and undermines respect for the law when the cheated party can see, or suspects, that he has been deliberately mistreated. Most of us accept the judgement of juries because they have final legitimate authority. We accept them as being impartial, or at least the best that’s available. It’s like democracy. It’s not perfect but it’s the best that’s available and we recognise it.

Judges are not impartial. For a start they are employees of the very State which is often one of the two protagonists in the case itself. How can a trial be fair when one side appoints, employs and pays the judge?

Brexit at the Supreme Court

The only questions at issue in this Brexit Case surround the status of the Referendum, and whether the Crown can act on the Referendum outcome without going back to Parliament. Basically it’s a political question on the constitutional status of the Referendum.

It’s long accepted that the Crown on the advice of the Government can make and dissolve foreign treaties without an Act of Parliament. It’s perfectly normal to rely on the ‘Royal Prerogative in this manner. In fact war is declared by his method.

The UK’s Membership of the EU is no more than Treaty supported by various Acts of Parliament to make it all work in the UK. Article 50 of the Treaty provides for the UK to give notice that it is leaving the EU. It’s then up to Parliament to make the legislative changes to cope with the consequences. The proper way to proceed under the terms of a Treaty is by Royal Prerogative. All this actually involves is sending a letter to the EU.

The Government has promised Parliament a ‘Great Repeal Bill’ to simply replace the EU legislation with domestic legislation immediately we leave. Even if it reneges on the promise the EU legislation remains on force. So there are no consequences for UK law whatsoever in sending the letter. There was nothing for Parliament to do.

All appeared well. No one in Parliament raised any motion against the Governments proposals. However Gina Miller (a ‘fund manager’), a plumber from London who sub contracts work to considerable numbers of migrant plumbers, and a hairdresser, all with arcane interests in constitutional law and practice, went to the High Court and obtained a judgement stating that Parliament should be consulted. In practice this was thought to mean ‘a vote’ which Ms Miller clearly assumed the Government would lose. 2/3 of MPs supported ‘Remain’ in the Referendum.

Miss Miller states that acting on the outcome of the Referendum by Royal Prerogative amounts to ‘Mob Rule’ (sic). In fact it’s the opposite. The Prerogative is an order of the Crown, following the outcome of a Referendum, brought about by Order of an Act of Parliament, (including the House of Lords), the arrangements for  which were promised and voted on in the 2015 General Election.  It is a unique example of the Crown, Parliament and people all working in unison. The actual Referendum Day was a lovely, joyous and orderly example of an ancient, peaceful, democratic, nation flocking to the Polling Stations to making our monumental decision together.

So the Government appealed the judgement. The appeal could, in principle go either way. But there’s a perfectly good case for maintaining that even if the Crown had ever needed to involve Parliament, by passing the Referendum Act, Parliament derogated its power to the people to decide, and that the Crown can now behave as if a Bill has been passed in Parliament  That was the clear understanding at the time of the Referendum Vote. Not one person said there would have to be another Parliamentary Vote if we voted ‘Leave’. A ‘legitimate expectation’ was created. And ‘legitimate expectations’ have force of law.

This ‘legitimate expectation’ is reinforced by the way in which the Referendum Act came about. The Conservative Party Manifesto 2015 promised that there would be a Referendum and that the Government would respect the outcome. Party Manifesto Commitments have, for a century or so, been seen as having Constitutional significance. There is virtually no doubt that it was this commitment which gave the Tories their overall majority in Parliament, allowing them to attract enough UKIP waverers back into the fold.

The turnout in the Referendum was well in excess of the numbers who Vote in General Elections. More people voted to leave the EU than have ever voted for anything else in British History.

David Cameron promised during the Referendum Campaign itself that if we voted Leave he would invoke Article 50 quickly.

It is insulting and dishonest to say now that this was no more than a mere ‘consultation process’ all along. People voted on the understanding that they were deciding. No Referendum result in the UK has ever been disregarded. There is therefore ample constitutional precedent as to the status of Referendum result.

‘Parliamentary’ Sovereignty

The argument brought by Gina Miller however is that ‘Parliament is Sovereign’.  For most of this debate however people tended to refer to Parliament as being the House of Commons.

The constitution has developed over the centuries and we now say that that Sovereignty lies with ‘The Crown in Parliament’. It certainly does not lie with the House of Commons on its own. But since 1911 it has moved in that direction.

The ‘Crown in Parliament’ means that any law to which the Crown assents has to have gone through Parliament, but strictly speaking the Crown does not have to assent. The last monarch to refuse assent was Queen Anne when she refused to assent to moving the date of Easter. She and her successors still haven’t assented. Easter remains as scheduled by the Vatican.

The reference to the ‘Crown in Parliament’ is a requirement that the Crown must not pass or change laws except on the advice of Parliament. In this instance however no laws will be changed until Parliament changes them and furthermore the Referendum Act itself brought the public in by Act of Parliament, on this one decision.

All concerned in the Brexit hearing however proceeded during the course of the week to lazily talking about a ‘Vote in Parliament’, and that ‘Parliament needs to be consulted’. Gina Miller in her interviews over the weeks continually referred to ‘a vote’. All concerned assumed this meant a vote in the House of Commons.

On the penultimate day of the hearing The House of Commons however threw a spanner in the works ruining Gina’s and the judges’ smug presumptions. The House of Commons voted overwhelmingly to invoke Article 50. In doing so Parliament has complied in full with the existing High Court Judgement which says that Parliament has to be consulted. Nowhere in the High Court Judgement does it say that an Act of Parliament is required. It doesn’t even actually specify that a Vote is required.

Yet on the final day of the hearing (after he had heard about the vote) Lord Neuberger President of the Supreme Court, took the trouble to intervene in the proceedings which he was supposed to be independently assessing, to extract a concession out of Mr Eadie (counsel for the Government) to the effect that even this vote might not be enough and that a full Act of Parliament, is required to invoke Article 50. This was achieved by asking Eadie whether the fact that this was not a vote involving the ‘Crown in Parliament’ (i.e. a full Bill which would have to go through the House of Lords as well), meant that the vote might not be relevant.

Eadie, apparently bemused, for all we know he didn’t know what Neuberger was talking about, conceded. Until this point no one had been talking about ‘The Crown in Parliament’. All Eadie need have done was to have disagreed and stated instead that the Commons vote was compliant with the High Court Judgement and therefore sufficient.

The quality of Government Counsel since the beginning of this case has been abysmal. During the earlier High Court proceedings Government counsel conceded that the Referendum on its own, had no legal or constitutional significance. In doing so it effectively conceded the case. They appeared to be trying to resile from the position at the Supreme Court and started talking about the Referendum Act having created a ‘legitimate expectation’

The ‘Interveners’

It’s not apparently obvious why the various parties including the Scottish and Welsh assemblies, and even the ‘Independent Workers Union of Great Britain’ were permitted to intervene at all in the proceedings at the Supreme Court. They had shown no interest whatsoever in the earlier proceedings in the High Court and nothing in the point of law at issue had anything to do with them. The only common characteristic shared by all the interveners was that they are all against Brexit.

Neither the Scottish nor Welsh Assemblies have any independent constitutional existence outside the Acts of Parliament which created them, and the ‘Independent Workers Union’ merely represents, migrant workers in London. All their legal counsels did was complained that Brexit wasn’t a good idea and repeated the same arguments Gina Miller offered.

This arrangement however created a wholly unbalanced hearing. Umpteen representatives and interveners were present in support of the Gina Miller case, but only one rather feeble proponent in the person of Mr Eadie spoke for the Government case. The 17.4 Million people who voted Leave were not represented at all. Neither should it be forgotten that the Prime Minister who’s Government who were allegedly representing the Leave side at the hearing, had itself campaigned for ‘Remain’.

The Supreme Court Judges

These judges are not merely defying the people. They are now interfering in Parliament’s processes as well. It appears that following the Commons having voted overwhelmingly to trigger Article 50, the judges are belatedly trying to ensure that an Act of Parliament is required, which will have to go through the House of Lords.

If, the judges, as I think they will, rule that this has must happen, Mrs May should call General Election, make her position clear, and following her certain victory use the Royal prerogative to get rid of all 11 of these judges and replace them with proper independent, professionally-minded ones.

Judges should be chosen a wide range of applicants capable of understanding the issues and performing the job which involves casting an independent eye over the issues in the case, and not from a closed shop of lazy, smug, self-serving, lawyers. Applicants  might include not merely lawyers, but academics, constitutional experts and others, and they should as in the United States have to appear before a House of Commons Committee as part of their interview process, and appear occasionally to account for themselves. They should still be ‘independent’ but they should not be above interrogation and criticism.

These judges might be in for a shock. If they go too far, not only will the Tories turn against them, but the likelihood is that for different reasons the Corbynite Labour Party will do the same. They might find themselves with the wrath of the Nation and Parliament to contend with.

Judges cannot stand against the Crown, Parliament and people all at the same time. They will surely discover that the Emperor has no clothes.

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6 comments

  • Excellent article. You say “No Referendum result in the UK has ever been disregarded.” But every single EU referendum HAS been disregarded, either by ordering a re-run or by simply ignoring it. I don’t think it is fair to criticise Gina Miller and her co-appellants. They have a grievance and are quite properly asking the courts to rule on it. What intrigues me, however, is that the argument seems to be finely balanced, with all sorts of arcane points of law being invoked, yet everybody already seems to know the outcome of the case. I find this very troubling.
    One point I have heard said, however, is that in a previous referendum, the government clearly stated that the result would be binding ON THE GOVERNMENT, whereas in this case they did not do so. Obviously because they never expected to lose! And that is a strange word to use, isn’t it? “Lose” against whom? The people who elected them?
    Personally I would love to see a second referendum, purely for entertainment, complete with ‘Project Fear’ mark II. Whom would we see parading in front of the TV cameras this time, warning of hellfire, admnation and World War Three if we voted to leave? Blair, perhaps? Or would Osborne & Cameron etc rise from the dead and repeat their long-discredited warnings. I think the British public would laugh their socks off.

  • Tyrants in a black robe

  • Reblogged this on rudolfwordpressblog.

  • I think this essay is mostly nonsense. There doesn’t seem to be an argument. It’s just one unsupportable assertion after another, many of which are factually wrong.

    The entire piece could be summarised in one sentence:

    “I don’t like the legal profession”.

    You could have just posted that up and it would have done the job.

    You seem to be saying that it’s unfair or wrong in some sense that people who are studied and trained in the law can be professional lawyers, and that people who are not so credentialed should be restricted from practice. But that’s not objectionable. I don’t follow.

    The legal profession is not a ‘state within a state’. It has to respond to civic government and does. That just seems to be stylistic indulgence from the author. I think the real problem is the opposite of what the author thinks. The legal profession is becoming part of the state or adjoined to it semi-autonomously. What we need is an independent legal profession, that is self-regulated.

    Thus, I disagree with the author that the legal profession should be subject to independent controls. That’s the opposite direction in which things should be going, and it’s telling that the author rails in a contradictory fashion against lawyer independence while decrying state control and state interference. Which is it?

    It’s not independent controls that lawyers need, it’s independence. Any controls on their behaviour should be self-policed. Any additional supervision can be left to the courts, and ultimately, on a policy level, to Parliament – neither of which are under the control of the legal profession, whatever the author may think.

    Also, the author complains that “judges are not impartial”. But here we have nothing more than a statement of fact. Nobody has ever claimed that judges are impartial. They can’t be. What we are entitled to expect is that judges will act impartially, which is a subtly different thing. That is all we can expect.

    The rest of the author’s complaints about judges just seem to be a commentary about what judges are expected to do. Sometimes they will follow precedent to the letter, sometimes they won’t. So what? I don’t see the problem there. Judicial rulings and judgments are inconsistent. That’s how it’s supposed to be. The inconsistency of outcome is due to the inconsistency of fact between one case and another. What did you expect?

    I will comment separately on the more technical issues.

  • [quote]”The argument brought by Gina Miller however is that ‘Parliament is Sovereign’. For most of this debate however people tended to refer to Parliament as being the House of Commons.

    “The constitution has developed over the centuries and we now say that that Sovereignty lies with ‘The Crown in Parliament’. It certainly does not lie with the House of Commons on its own. But since 1911 it has moved in that direction.”[unquote]

    This is the crucial point, and in this regard you are correct. Sovereignty in principle is with the Queen-in-Parliament, but de facto rests with the House of Commons in most situations. But my conclusion from this is different to yours.

    I detect no trap in Lord Neuberger’s question and the reply to it is simple: the government and Parliament are fused. It is the government that serves the Article 50 notification – no-one doubts that – and under the constitutional arrangements, the government can only do so with the confidence of the House of Commons, otherwise it would fall. If the Commons wants to insist on ratification by the Lords, it can do so (assuming that the government pursues the line of least resistance). If the Supreme Court wishes to insist on full parliamentary ratification – i.e. an Act of Parliament – then it can do so. OK, so what?

    I would like to agree with you on the rest (because I want to leave the EU as well), but here is where you go wrong:

    [quote]”Miss Miller states that acting on the outcome of the Referendum by Royal Prerogative amounts to ‘Mob Rule’ (sic). In fact it’s the opposite. The Prerogative is an order of the Crown, following the outcome of a Referendum, brought about by Order of an Act of Parliament, (including the House of Lords), the arrangements for which were promised and voted on in the 2015 General Election. It is a unique example of the Crown, Parliament and people all working in unison. The actual Referendum Day was a lovely, joyous and orderly example of an ancient, peaceful, democratic, nation flocking to the Polling Stations to making our monumental decision together.”[unquote]

    This is a novel and groundless ex post facto interpretation of events. The true position is that Parliament is sovereign and supreme and the Act that was passed to authorise the referendum did not state that the outcome would bind that parliament. Thus, the constitutional position – whether we like it or not – is that the referendum was advisory (‘pre-legislative’). Parliament did not derogate its power to the People to decide and the government’s case is not founded on any such assertion – if it were, they would be even more likely to lose.

    But even if that were not the case and the referendum result is somehow binding, the issue of who serves the Article 50(2) notification would still arise and would still be ripe. That is all the Miller case concerns. Even if the Miller judgment goes against the government again (which would seem likely), it is likely Brexit will go ahead, and the judgment itself does not preclude Brexit. Therefore, the judges are not acting to defy the will of the people. To do that, they would have had to have been in league with Miller herself and perhaps drafted the particulars of claim for her. Is that what you are suggesting? They are simply being asked to rule on a narrow matter of constitutional law.

    I think the strongest argument for the government side is that the Article 50(2) notification is a matter of treaty, but that is not in itself a strong argument. It doesn’t intuitively make sense, because we all know that EU membership transcends merely ‘entreatyship’. The EU has an institutional character in its own right. It defies the reality of the situation to believe otherwise. The conduit interpretation of the ECA 1972 in particular makes little sense to me, as it’s clear that the ECA introduced directly effectively laws, not just laws enacted locally. Thus the ECA 1972 is a constitutional statute that Parliament has to expressly repeal. By opposing the High Court’s reasoning, you are denying that any rights that arise from EU membership through direct effect can just be ‘switched-off’. Or you are saying you don’t care, and you believe that the executive should have the power to usurp this without any reference to Parliament? So, when the executive serves the Article 50(2) notification and the clock starts ticking under Article 50(3), you think we should then just leave and the ECA is a dead letter? I’d like to agree, but it makes no legal or constitutional sense and it could even be seen as dangerous. What would it mean for future governments that just decided to upturn constitutional law without reference to Parliament?

    It’s a basic constitutional principle is it not that prerogative powers cannot alter the law? Why do you think this should be ignored now?

    • In my comment above I stated:

      [quote]”But even if that were not the case and the referendum result is somehow binding, the issue of who serves the Article 50(2) notification would still arise and would still be ripe. That is all the Miller case concerns.”[unquote]

      Actually this is not necessarily quite correct. The High Court stated that the case was to decide whether the Crown could, through its prerogative powers, serve the Article 50(2) notification. However, that does not mean the case is about ‘who’. I don’t think its’ in doubt that the Crown can do this. Rather, the case is really about whether Parliament must first consent to the notification. If Parliament does so, then I would expect that the Crown would serve the notice on behalf of the country under the prerogative power that entitles the Crown to do so.

      In other words, the core of the issue seems to be the scope and extent of prerogative power – though there may be a different way of expressing this.

      However none of these particularities alter my comments or my view of the matter at this time.

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