Interview Britain's exit from the European Union could be guaranteed by the Supreme Court if the government has the cojones to appeal Thursday's Brexit-bashing Divisional Court verdict, says barrister Greg Callus.
Speaking after the verdict was handed down in the case against the government, Callus told The Register that although the 23 June referendum's outcome is not legally binding, the Supreme Court has very wide-ranging powers to create new law as well as confirm readings of the existing law.
"The thing is, this is such an important case the Supreme Court could say 'we'll have to have it even though there are no arguable grounds' and the Supreme Court is the Supreme Court," said Callus, perhaps slightly tongue-in-cheek as he echoed the infamous "Brexit means Brexit" non-saying.
"It's not bound by the arguments the parties put forward," continued Callus, of media and entertainment law practice 5RB.
"The Supreme Court could say, 'Here are new grounds you've not seen before and that none of you have ever thought of; this is the law.' I'm sure they would ground it in something but they are free from control in the Supreme Court; they decide."
From left, Sir Terence Etherton, Lord Justice Sales and Lord Chief Justice Thomas
The referendum itself does not bind Parliament "legally", he said, "only politically, and that's been the standing view." In his opinion, to resolve the uncertainty the government "could say, 'Actually, you know where more people have voted on this than anything before, they should have parliamentary sovereignty... If we have a clearer view of the people through a legal mechanism like a referendum than we get through their indirect voting through parliament, that should be accorded special constitutional status.'"
This is rather unlikely but makes an excellent talking point: what if the Supreme Court was to adopt that view? It would certainly be explosive. Callus's view is that "honestly, they could have a lot of freedom because this is a question of principles rather than law – and there's no appeal beyond them."
Yet it's vitally important to remember that the UK Supreme Court is very dissimilar from the US version. "People make this big mistake and think, 'Oh, you've got Lord Kerr and Lady Hale and they're the liberals, and you've got Lord Hughes and Lord Sumption and they're the conservatives,' and there's a real danger in thinking about the Supreme Court like the US supreme court because it's really, really not," Callus said.
The lesson here is that not only is it hard to predict what the Supreme Court might decide if the Brexit Article 50 judgment was appealed to them, but they could do something completely left-field, which nobody – least of all the government and the woman funded to bring the case on behalf of the losing minority in the referendum – might expect.
Theresa May not go through with Brexit after all this
The current position after Thursday's explosive anti-Brexit judgment is that the government must now get a bill through Parliament authorising it to invoke Article 50 – the article of the EU constitution Lisbon Treaty which says that a member state is leaving the bloc.
The other route is for the government to appeal to the Supreme Court against the verdict, which – if it wins – would allow it to invoke Article 50 without having to beg Parliament for permission first.
That, however, may be less likely than it seems despite the government's bombastic response to its court defeat.
"I’m not 100 per cent sure the government will follow through," said Callus. "The Supreme Court has apparently got space in its diary on 7 and 8 December. That adds more than a month. Then you have got to wait for the Supreme Court to give its judgment over Christmas and that could take us to February. If the government loses again, firstly, it's embarrassing and costly to lose twice. The other problem is that if Theresa May then tries to put it to Parliament, it might take quite a long while.
"If I was the government, I'd have been much more confident about winning in the divisional court. To lose in the divisional court... I'm not sure I'd want another kicking in the Supreme Court."
Nobody will – or can – appeal against Brexit to the EU
Callus was forthright on the impossibility of any legal challenge to Brexit in the current case: "No one can ever appeal as such to the European Court of Justice. All that can happen is courts below the Supreme Court have the ability to send a reference question to the ECJ on a matter of EU law to answer."
The Divisional Court "rightly" concluded that Article 50 is "irrevocable", Callus says, reminding us: "Ultimately the decision being made in the court today and the one the Supreme Court [may have to] make is as a matter of the British constitution, what is necessary. That cannot involve a question of EU law, though the ECJ could clarify a point of law if it was necessary." ®