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Friday, 4 November 2016

The Brexit Judgment is all about the Supremacy of our elected Parliament

It seems that the whole world is commenting on yesterday’s decision of the High Court in relation to Brexit. In fact some press reporting has verged on the hysterical.

We need to make one thing clear from the start. This is not a judgment on Brexit itself. It is a judgment on what powers the government has, to make decisions in relation to Article 50 without referring to Parliament. The Lord Chief Justice could not have made this any clearer -

'It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union' . 

I think everybody has now heard of Article 50. This is the process that begins our exit from the EU. In very simplified terms the court decided yesterday that the process cannot be triggered by the Government. It has to be done by Parliament. It is a purely legal point. It has nothing to do with the pros and cons of Brexit.

The Government argued that it could start the process without going to Parliament because of 'Royal Prerogative'. These are words that most Law Students forget shortly after finishing their degree. They rarely raise their head in real life. Royal Prerogative describes decisions which the monarch of the day could make without having to refer back to parliament. It is a concept that goes back to the 14th Century and the days of power struggles between the monarch and the barons.
Over time those powers have devolved to the government ministers. The powers are sometimes used in foreign affairs and might include the making of treaties with other nations. For those who are particularly interested there is a useful discussion in Wikipedia –

This is important in relation to yesterday’s decision. When we entered the European Union in the 1970s Parliament enacted the European Communities Act 1972.  If we want to exit the Union that Act has to be repealed. The government’s case was that it must have been Parliament’s intention in 1972 to give any future government power, by way of royal prerogative, the power to cancel any treaties relating to our membership. This argument was very firmly rejected by the Court.

The overriding point is that Parliament is sovereign. The 1972 Act was passed by Parliament. There is nothing in that Act to say that a future government can cancel it. Only Parliament can repeal an Act that it has passed. The Lord Chief Justice said

‘The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the government of the day cannot by exercise of Royal Prerogative override legislation enacted by Parliament.’

The government argued that this case was different. It argued that it had the legal power to trigger Article 50 because this is all about foreign relations and therefore within the Prerogative. This again was rejected. It is self evident that laws enacted since we joined the EU have become part domestic law. So as soon as Article 50 is triggered, UK laws will be affected. This is not just about foreign affairs but will fundamentally change our laws. Those powers are for Parliament and not the government.  

The case will now go to the Supreme Court – possibly before all 11 judges. I would be very surprised if their decision is any different. There is nothing in either the 1972 Act or even the Referendum Act of 2015 that gives Mrs May and her ministers powers to cancel an Act of Parliament. Many of us have been saying this since June –

This is not a battle between the courts and Parliament. In fact it confirms that nobody – neither judges nor the government can override the supremacy of Parliament. In fact it is part of our historical protections. The courts will not allow any government to act beyond its powers. If it wants to change the law it can legislate and to do that it has to go through the correct process.

So where does this leave Brexit?

I cannot imagine that Parliament will try and cancel the result of the referendum. A majority of voters chose Brexit. It would certainly trigger a major constitutional crisis if that outcome was blocked altogether. Indeed many MPs who supported Remain have said that they will respect the will of the people.

What it does mean is that the process will have to be carefully examined by Parliament. Brexit minister Davis Davies has acknowledged that this would mean a new Act of Parliament –

This might slow the formal process but it will ensure that the elected members of parliament will have the final say on the detail of the exit.

It is easy to forget that this was something that was at the heart of the Leave campaign i.e. the recovery of the supremacy of our parliament. 

The High Court has confirmed this.

Yesterday’s judgment should be welcomed by both sides of the debate itself. It is not a decision about the rights or wrongs of Brexit. It is a clear line in the sand about what powers Ministers have to disregard those elected by the people.

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