Judgment Day on Article 50
I couldn’t resist a quick comment on today’s ruling by the High Court that the Prime Minister cannot trigger Article 50 of the Lisbon Treaty (and thus begin the process of taking the United Kingdom out of the European Union) without the approval of Parliament. The case was brought by Gina Miller and Deir Tozetti Dos Santos (the claimants) and has important constitutional implications because it limits the use of the Royal Prerogative.
I’m not by any means a legal expert but reading the full judgment it strikes me that this unanimous decision represents a comprehensive defeat for the Government’s lawyers. The crucial paragraphs of the judgment are 92-94 if you wish to refer to them in the full judgment. Interestingly, the ruling does not really rest on the claimants’ case at all but instead is based on a complete rejection of the main point of the Government’s submission. It looks like the Government’s lawyers bungled it pretty badly. Although the Government has indicated that it will appeal the result, it’s not obvious what the grounds for such an appeal might be. The appeal will be heard some time in December.
I’ve never made any secret of the fact that I am in favour of the United Kingdom remaining inside the European Union. Events since the referendum – especially the collapse of the pound – have strengthened that opinion, in fact.
I am baffled by the extreme reaction of many “Leave” voters to this judgment, especially those who voted that way in order to “restore Parliamentary sovereignty”. Some such individuals are claiming that this ruling is somehow anti-democratic. I don’t think that view is at all rational. If you voted Leave in order to get your sovereignty back then you should be very happy with this decision. In fact whichever side of the referendum debate you were on you should welcome this decision.
We live in a parliamentary democracy. That means that sovereignty rests in Parliament, not in the Prime Minister. This ruling merely asserts that fact. It does not overturn the referendum result nor does it prevent Article 50 being triggered. It does assert that the Prime Minister’s chosen way to approach BrExit is unlawful. Democracy is nothing without the rule of law.
Incidentally, the judgment also contains the following statement which I think is worth quoting here:
The 2015 Referendum Act was passed against a background including a very clear briefing paper to Parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended to be only advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.
In other words the referendum in itself has no constitutional force and was specifically intended not to.
The government plans to appeal the Article 50 decision to the Supreme Court, at which point it may or may not be overturned. If the appeal fails, then there is one higher authority: the European Court of Justice. It would be a delicious irony if the UK government were forced to appeal there in order to proceed!
Supposing, though, that all appeals are exhausted and the Government is forced to debate Article 50 in Parliament. What would happen next?
Although a majority of MPs in the House of Commons were in favour of remaining in the European Union, circumstances have changed since the referendum and many would be reluctant to vote against the outcome. However, I can imagine a situation in which Parliament refuses to give approval to an Article 50 until it has sufficient knowledge of the Government’s negotiating position to be assured that the Government is not planning something reckless that would endanger the UK economically and/or politically. It is my personal belief that “something reckless” is precisely what the Government is planning, and that is why they were so keen not to have a vote in Parliament.
There was only one question on the ballot paper for the EU referendum – whether the United Kingdom should remain in the European Union or leave it. But what, if any, of the rights and benefits that currently accrue as a consequence of our membership of the EU can the UK keep if and when it leaves? Who decides what rights can be removed from UK citizens?
There has been a lot of talk about “Hard BrExit” versus “Soft BrExit”. My personal view is that “Soft BrExit” (by which we would end up in a situation something like Norway) – which a sizable number of Leave voters envisaged when they voted – is not on the agenda at all. I think the Government is headed for a “Hard BrExit”, i.e. no membership of the internal market, no freedom of movement, no free movement of people, etc. That’s partly because of the ideological beliefs of the Tory cabinet and partly because that’s what the process pretty much guarantees. Article 50 is just about the UK leaving the European Union. That process has to be completed before any trade deals with the EU or other countries can be negotiated; such deals could take years to complete and in the meantime our economy will suffer. In the interim, we’ll be out with whatever the EU decides to allow us. I don’t think that will be very much at all.
I think that the Government knows that this outcome is not what a majority voted for, that it will have serious economic consequences, and will produce a considerable political backlash. That is why the Government want to charge ahead as quickly as possible (in secret) so that nobody can stop them until it’s too late. In other words, they’re planning to use the referendum result as a pretext to further their own agenda. In order to this to work they have to avoid Parliamentary scrutiny. The High Court ruling – if it stands – effectively rules out this strategy. It is a victory for democracy.