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Court's "Brexit" Order should be no surprise

Nigel Morris-Co...

The political posturing that has arisen from the High Court in England and Wales ordering that Article 50 can be triggered only after a Parliamentary vote is ridiculous. Then again, so was the bringing of a case, or the need for one to be brought. Anyone with an ounce of sense always knew that last June's Referendum does not bind Parliament (voters were told that often enough during many TV and Radio programmes and many articles in the media in the period leading up to the referendum) therefore a Parliamentary vote would be required. Anyone who thought otherwise was delusional and lacking in basic knowledge of the fundamentals of how the British legal and parliamentary systems work.

Let's be clear about exactly what the legal standing of a referendum in the UK is: it has none.

First, let's explain something to avoid confusion later.

The word "parliament" is used in three different contexts.

The first, which is not relevant to this article and so we can dismiss it shortly, is when the word is used as shorthand for the building officially known as The Palace of Westminster but colloquially known as "The Houses of Parliament." It's a building and in this article we are concerned with the institutions it houses.

The second is to refer to "Parliament." This is the form of government in the UK. It consists of two Houses: Commons and Lords and subsets of them known as Parliamentary Committees. In effect, in this sense, it means the function at the heart of the democratic process. It is this that we will, mostly, be concerned with in this article.

The third is "a Parliament" and this is a technical term meaning a session of Parliament, which usually lasts four years between general elections. The context is changed by the insertion of the indefinite article ("a") before the word. Sometimes people talk of "this Parliament" which means the current session of Parliament. There are other indicators that qualify the term that show that the speaker (or writer) means the one session as against other sessions or Parliament as a whole So watch out for those tiny indicators that show what we (and others) mean when we talk about those.

A referendum in the UK is not binding on Parliament. It is important to realise that until the 1991 case of Factortame there was a rule, called the sovereignty of parliament, that said that no parliament could fetter the discretion of future parliaments. It is, one might consider, ironic that Factortame was a case brought in the English courts against the British Government by Spanish fishermen which not only removed the concept of sovereignty of parliament from one session to future sessions but also said that the UK could not make and enforce laws that were inconsistent with EU law. In short, it said that EU law overrides British law and removed the power of one parliament to laws with long-term future effects because those laws were not made by the UK but by the EU. Factortame went further: it said that the Courts had power to "disapply" Acts of Parliament if they were contrary to EU law.

Lord Denning, who I think of as the jurisprudence version of violinist Stephan Grappeli, (always on the edge of the possible but not quite falling over, never prosaic or even simply competent), said in McCarthy's v Smith "If the time should come when our Parliament deliberately passes an Act—with the intention of repudiating the Treaty or any provision in it—or intentionally of acting inconsistently with it—and says so in express terms—then ... it would be the duty of our courts to follow the statute of our Parliament." That was in 1979. Twelve years later, the Court appeared to find otherwise in Factortame: however, Denning made it clear that, in order for that to be effective, the UK Act would need to state, clearly, that the inconsistency was intentional and with the purpose of repudiating all or part of an EU law.

In a Parliamentary Committee, Jack Straw, then the UK Foreign Secretary, said "The British Parliament in any event has the final say because it is up to the British Parliament as the sovereign authority in this country to decide whether or not we should remain a member or a signatory to a particular treaty." It is instructive for readers to see the entirety of the committee meeting at which Jack Straw spoke: MP Bill Cash, a man who in the terms of the time would have been called a "Eurosceptic" had introduced into Parliament a Bill called the Supremacy of Parliament Bill. There were stringent efforts to kill it, from all around the House. He put to Jack Straw the following question: "Would you not agree that this Bill that we are going to consider tomorrow should be amended to ensure that if Parliament passes an Act of Parliament clearly inconsistent with the European Communities Act or anything flowing from it, including the Constitution itself, the UK courts must give effect to that Act and, if not, why not? "

Straw said that the "constitutional treaty" was a statement of the status quo - but by that he meant the status quo as it had become, not the status quo before the erosions of powers of national governments in favour of a centralised EU had begun in earnest. He went on "Politics and government are about responsibility. If we pass a law which is plainly and expressly inconsistent with treaty obligations, we will then be in breach of those treaty obligations. The consequences are likely to be political and financial, more than legal, but they may also be legal in other jurisdictions in which we voluntarily have accepted the authority. Do not worry on this one."

It turns out that the Eurosceptics were right to worry. Straw inadvertently gave a huge warning: if the UK (for example) elected to "plainly and expressly" be inconsistent with EU law, the EU could impose a variety of sanctions which might exclude Britain from some of the decision making processes and/or effectively fine the UK by withholding EU moneys due under a variety of schemes which may have had the direct effect of putting people out of business.

It is not, however, entirely certain that, for purely domestic legislation, the question of sovereignty of parliament is entirely dead. Even within the same article (see Barber, reference below) there is no certainty and only a presumption that Parliament has a residual power to amend and repeal past laws.

It is clear, then, that the view of the British courts and government has long been that the UK has, irrespective of Article 50, what amounts to a power to say "we are removing ourselves from this treaty." And it is almost clear that there is a residual power to amend or repeal laws that give effect to treaties.

But that power resides only in Parliament. It does not reside in the population at large. A referendum, constitutionally and legally, sends a message to Parliament, that is all. Worse, the referendum was not counted on constituency boundaries and so it is not to be considered a mandate to specific MPs. The consequence of this is that local political parties do not have an obvious target to demand that an MP follow their wishes. It might be argued that the holding of a referendum independently of a general election facilitated the making of a free vote by MPs in a Parliamentary vote. The Referendum was, for statistical purposes, counted regionally but the result was a national result based on the total number of votes cast nationally.

Taking all of the above into account, it is absolutely clear that Parliament must pass legislation to trigger Article 50. Those politicians who thought that, in effect, the Prime Minster could just send an e-mail to the Commission or to all the other heads of government and say "hi, guys, we're off," simply did not understand the fundamentals.

I, personally, have only one thing to say about that: I entirely and without reservation support the UK leaving the EU as it has become and as it is planned but I'm worried: are these people really capable of running a country?

Additional reading:

Barber: The afterlife of Parliamentary sovereignty (2011) http://icon.oxfordjournals.org...