Well, well, well. I had a half written post for you on Brexit, which would have been my usual caustic look at the somewhat chaotic approach that this government has to Brexit. As in, one moment it’s going to be a Hard Brexit (week before last) and the next it’s going to be a Soft Brexit (that was last week, with all those promises to Nissan). So, I was thinking it worth my while to look closer at those terms – what is a Hard and/or Soft Brexit? We bandy these terms around, but what exactly are we talking about. You get my drift. However, the post was possibly a bit same old, same old with most of my sarcasm directed at Mother Theresa telling Parliament, ‘no, you’re not going to hear what our direction and plan is, and no, you’re not going to debate this non-plan, and no, you can’t vote on any of it’.
Her reasoning is that you don’t let the cat out of the bag and tell everyone (meaning Parliament) Britain’s negotiating position, which is still obviously not decided upon. Even more bizarrely you do realise that we (the Brits) cannot have any pre-negotiations with anyone in the EU before we activate Article 50 (which starts the whole process of us leaving) which, btw, was, (and I stress the was) going to be triggered at the end of March, which therefore meant we begin our negotiations on 1st April.
Indeed. Until yesterday. Which was when we got the judgement of the Divisional Court on R (Miller) v Secretary of State for Exiting the European Union – wow. Can you just imagine the shock and indeed, indignation that must have caused in some parts of Westminster?
This morning our tabloid press is having an apoplectic fit at the judgement, each trying to outdo each other in outrage that a British court, with its independent judiciary, has ruled on British law overseeing the British constitution and has actually said that Parliament should debate and oversee Britain leaving the EU. I’m trying not to snort with laughter at this point, isn’t that what everyone wants? Isn’t this us (or, in this instance, a British court) taking back control? No, really? You don’t want that? Gosh!
Rather than read the press I’ve downloaded the summary of the judgement, and believe me, it is a critically important constitutional ruling. I’m not exaggerating. And furthermore, in my view, the Government will not win its appeal. Anyway, I’m going to set out the most important points and quote from this ruling:
The question“The issue before the court is whether, as a matter of constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament.”
In this part the ruling says this is not about the merits of leaving the EU it is “a pure question of law”.
The Background “On 1st January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1972 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this.”
So Parliament passed an Act of Parliament, which became part of our domestic law, to join what is now the EU.
The constitutional principles “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 prerogative powers override legislation enacted by Parliament.”
It goes on to say that this principle is of critical importance. Oh yes, absolutely. I mean that casual reference to hundreds of years apparently refers back to case law dating back to 1610, and that’s before our Civil War and the execution of a British King who took too much power into his own hands. Because yes, while the Government of the day may deal with international relations and the making and unmaking of treaties it may not exercise its prerogative powers on domestic law as laid down by Parliament. Do you see were this is going?
Conclusion “In the judgement of the Court the [Government’s] argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers.”
The final sentence in the summary states that the Government does not therefore have the power to initiate Article 50 – the initiation must be debated and enacted by Parliament.
What does this mean? It means that Theresa May’s Government – the Executive – has been reminded of the limit to their powers, which can only be a good thing. And it means that the triggering of Article 50 is not to be initiated by a select few debating behind closed doors.
However, despite a majority of MPs favouring remaining in the EU, this ruling doesn’t necessarily mean that this is the end of Brexit as MPs are likely to look over their shoulder at how their constituents voted. But let’s be absolutely clear, the debate that will now happen in Parliament is still not about the type of Brexit we are going for, it is about the Article alone. MPs might bring up the question of whether we need the Single Market or not, or the merits of a Hard Brexit over a Soft Brexit but the ruling is about process. In other words, to trigger Article 50 there needs to be an Act of Parliament. This, therefore will very likely delay the initiation of Article 50 but not necessarily prevent it.
But Parliament rules and decides this initiation, not a cabal of blustering Ministers – good.
So, a complete rewrite, but necessary. I’ll keep you posted on how this progresses.
Penny Kocher 4th November 2016