The Decline of the Passive Virtues

Away from this forum I’ve made three contributions in the last month to debates about Brexit, from a law and policy point of view.

First, I participated in a Centre for Public Law panel discussion on the UK Supreme Court’s decision in the Scottish Continuity Bill
case, [2018] UKSC 64. The link below starts at my remarks (this is my blog, after all!) but readers should also listen to Professor Elliott, who sets the scene, and Professor Young, who discusses the Court’s view of parliamentary sovereignty.

Second, I wrote for Prospect a blog arising out of a Twitter thread on the European Union (Withdrawal Agreement) Bill, a hugely significant piece of legislation, from a political, legal and constitutional perspective. The title, “A no-deal Brexit is more likely than you think, because of legislation you’ve never heard of“, captures the basic idea. Here is the introduction:

A no-deal Brexit is more likely than you think, because of a piece of legislation which you’ve probably never heard of and which you’ve almost certainly not seen. In hushed tones in Westminster, Whitehall, think tank corridors and university seminar rooms, it is called the European Union (Withdrawal Agreement) Bill—the “WAB.” If it is not passed by the House of Commons and the House of Lords and given Royal Assent by the Queen, Britain cannot leave the European Union with a deal, on 29th March, or at any point. And regardless of what happens next month, the fact that the WAB has not yet been published is a democratic and constitutional outrage.

Third, I followed this up with a piece for the Spectator’s “Coffee House” blog, on “The Brexit legal challenges that could force Britain to leave without a deal“. I laid out the arguments likely to be raised against the Withdrawal Agreement, delay or revocation and concluded:

Government lawyers will, of course, have powerful ripostes to all of these arguments. In a sense, however, that is not the point. Brexiteers will hope that their legal challenges simply freeze the machinery of government long enough to effect a no-deal Brexit by automatic operation of law on March 29.

Unless there is a radical change of course between now and the end of the month, the courts are likely to be sucked into a political maelstrom by waves of Brexiteer litigation, as the Brexit clock continues to tick. It is difficult to see how the British judiciary can emerge unscarred from what will almost certainly be a period of sustained political and legal turbulence.

A common theme running through these contributions (certainly the first and third) is that the British courts are finding themselves in very choppy constitutional waters. In relation to Scotland, the UK Supreme Court has (on one reading) endorsed the proposition that UK ministers can modify, by delegated legislation, the competence of the Scottish Parliament. It is not difficult to see this conclusion being used by independence-supporting Scots as a stick with which to beat the Union. In relation to the Brexit challenges soon to come, the courts will be placed in the unenviable position of either permitting the government to delay or cancel Britain’s departure from the European Union or acquiescing in a no-deal Brexit.

If we were in a different place, or a different era, this might be the time for the UK courts to exercise Alexander Bickel’s “passive virtues”: using techniques like control of the docket, standing, ripeness/prematurity and political question doctrines to avoid adjudicating on sensitive political issues.

This is not a realistic option for the UK courts, however. Having pushed back the boundaries of justiciability, liberalised the law relating to standing and relaxed restrictions on ripeness/prematurity, it is not now open to the courts to reverse the progressive opening up of judicial review without running the risk of a serious damage to their legitimacy.

I should say I have been, for the most part, an enthusiastic proponent of these steps and often looked askance at some of the Supreme Court of the United States’s exercises of the passive virtues. I suppose the lesson is that in less troubled times, when the stakes of public law litigation are relatively low (certainly in systemic terms), courts have less need for the passive virtues. And if they are not practised, they cannot be profited from in times of strife. Only now am I coming to appreciate the value of Bickel’s passive virtues.

This content has been updated on February 11, 2019 at 13:50.