Legal Academia 2.0 in the Brexit Litigation

The government and the claimaints in Miller (the Article 50 case) have now made their written statements of case available (see here).

One remarkable feature is that both the government and the claimants rely heavily on arguments made by various distinguished writers (including some of my Cambridge colleagues!) on the United Kingdom Constitutional Law Association’s blog. Clearly, we have moved a significant distance from the traditional position, which held that academic authors were “better read when dead”:

In civil law systems the writings of jurists are recognised to be sources of law. In a common law system, legal writing is not a source of law. Indeed, until the 1960s the general convention, described as “better read when dead” precluded even the citation of living authors. It did so whether the author was a judge, an academic or a practitioner. It did so however distinguished he or she was.

Sir Jack Beatson, “Legal Academics: Forgotten Players or Interlopers?”

This is British evidence of a phenomenon that I have previously described as “Legal Academia 2.0“:

In this short text, the author contrasts old and new models of legal academic engagement with the community. Several characteristics of the old model are discussed: it is notable for the involvement of peers in a long and slow process of editorial review. Undeniably, the outputs of this model have an impact on the evolution of the law. For the most part, however, judicial decisions are handed down before detailed academic commentary on the specific factual issues is published. By contrast, the new model is characterized less by peer-review than by the interactivity of Internet forums, most notably blogs and social media. In the new model, the dissemination of knowledge is extremely rapid. Moreover, knowledge is no longer solely in the domain of the legal academic: the democratizing effect of the new model is such that anyone with an Internet connection can engage members of the legal academic community in debate about legal issues. The author illustrates the new model by reference to two recent high-profile decisions: the decision of the Supreme Court of Canada in l’affaire Nadon (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21) and that of the Supreme Court of the United States on the legality of Obamacare (National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012)). In these cases, the involvement of legal academics through blogs and social media greatly influenced the conclusions reached by the courts. The author suggests that these case studies demonstrate the importance of the new model and the need for further reflection on its implications.

Download the paper here.

I am working on a longer piece on the Article 50 litigation for a talk in Toronto next month, which I will make available in due course. In the meantime, one Canadian reference in the government’s case piqued my interest. At paragraph 39, the government points to Canada, Australia and New Zealand in support of the proposition that “withdrawal from Treaties is entirely a matter for the Executive” and cites, in particular, to Turp v. Canada (Justice), 2012 FC 893, a case brought by my former University of Montreal colleague Daniel Turp, a supporter of independence for Quebec who would no doubt be amused (perhaps even pleased!) to be cited in support of a state’s attempt to leave an international organisation that resembles a federation.

What the government says about Canada is correct insofar as it goes. Having said that, the whole point of the application judge’s decision in Turp was that the Kyoto Protocol Implementation Act was purely exhortatory and meaningless as a matter of law. As Barnes J. observed in Friends of the Earth v Canada (Governor in Council), 2008 FC 1183, at para. 42, “If Parliament had intended to impose a justiciable duty upon the government to comply with Canada’s Kyoto commitments, it could easily have said so in clear and simple language”. The legislation was “directed at ensuring compliance with Canada’s substantive Kyoto commitments through public, scientific and political discourse, the subject matter of which is mostly not amenable or suited to judicial scrutiny” (at para. 43). Put bluntly, there is quite a difference between Canada’s Kyoto legislation and the European Communities Act 1972.

Moreoever, the comparison the government wishes to draw between the UK and a federal state such as Canada is somewhat inapt. While Canada’s federal executive has the power to negotiate treaties, it does not necessarily have the power to implement them domestically, even if it controls Parliament, because the power to implement the obligations of a treaty into domestic law tracks the constitutional division of powers between the federal government and the provincial governments: see e.g. Pfizer Inc. v. Canada, [1999] 4 FCR 441, at para. 48 and generally the Labour Conventions Reference [1937] AC 326. As result, the proposition that the federal executive could, by withdrawing from a treaty, alter domestic law, especially domestic law passed by a provincial legislature, or infringe upon domestic rights, especially domestic rights created provincially, sounds quite odd to Canadian ears. Put bluntly, the comparison with Canada does not assist in answering the questions raised by the Article 50 litigation; indeed, if it assists anyone, it probably assists the claimants.

This content has been updated on November 25, 2016 at 15:49.