Brexit Justice

Trigger-Happy Executive Leapfrogs Constitution in Article 50 Appeal

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Yesterday, Theresa May’s thus far, undisclosed plans for invoking Article 50 and exiting the European Union were in tatters after the High Court ruled that the government’s intention to execute these plans without reference to Parliament was unconstitutional. The court made it clear at the outset that this legal question was a “pure point of law” and not in any way a comment upon the political merits of leaving the European Union.

The government has been quick to make clear its intention to appeal this ruling, the constitutional significance of which ruling entitles the government to leapfrog its appeal to the Supreme Court.

To date, the government have forged ahead with its thus far undisclosed exit proposals in the face of criticism at its ousting of all parliamentary scrutiny. Rather, Theresa May’s government claims that it is entitled to act in reliance upon its Crown prerogative powers – ordinarily reserved for matters of emergency and international negotiations, such as treaties – to give effect ‘to the will of the people’ – as reflected by the 4% majority who voted Leave.

In short, the government is relying upon the “will of the people” to supplant Parliamentary sovereignty in its determination of the timing and terms of the UK’s withdrawal from Europe.


In a statement, the government said:

“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum.”


Suzanne Evans, UKIP’s parliamentary spokesperson, called for the sacking of the judges who backed the Brexit decision. She tweets:

“How dare these activist judges attempt to overturn our will? It’s a power grab & undermines democracy. Time we had the right to sack them.”


However, referendums have no constitutional basis to overrule parliament unless explicitly stated otherwise by parliament. They are a relatively new introduction to British democracy – the first being the original Common Market referendum in 1975.

Further, as a foundational principle of our constitution, the Crown – represented by Her Majesty’s government – may not deprive its subjects of their rights and freedoms, nor may it impose obligations upon subjects, without the consent of parliament.

Britain is a parliamentary democracy, and the laws of this realm may not be altered without the consent of our democratically elected parliament.

This aside, the will of the people as made clear in its majority referendum decision to leave the European Union is undisputed, whether by Parliament or the judiciary.

However, this referendum merely makes the people’s wish to leave the EU known.

Nothing in the European Union Referendum Act 2015 granted the government the right to trigger Article 50, or to dictate the terms of our departure from the European Union and its impact on our domestic legislation, without the consent of parliament.


Yesterday’s High Court ruling is not at odds with the UK’s decision regarding EU membership.


Dominic Cummings, director of the Vote Leave campaign, urges fellow Eurosceptics to look beyond the immediate political implications to Theresa May’s currently undisclosed exit plans, and to instead focus upon the legal and democratic importance of this ruling.

He tweets:

“AT THE HEART [the judgment] IS REASONABLE … Why? Because Parliamentary sovereignty means [that the government] cannot (and [should] not try to) change domestic law by use of the [Crown] prerogative”.


(Photo: Reuters, Toby MelvilleI

Outside High Court following yesterday’s Article 50 ruling (Photo: Reuters, Toby Melville)


In short, the High Court’s ruling is not a judgment upon the merits of leaving the EU.

Rather, it is a review of the legality of the government’s management of our withdrawal.


A spokesperson for Jeremy Corbyn said:

“This ruling underlines the need for the government to bring its negotiating terms to Parliament without delay. Labour respects the decision of the British people to leave the European Union. But there must be transparency and accountability to Parliament on the terms of Brexit. Labour will be pressing the case for a Brexit that works for Britain …”


Politically, yesterday’s ruling leaves Theresa May’s plans in disarray and the level of parliamentary scrutiny required to satisfy our constitution is, at this time, unclear; a simple substantive motion in which Parliament signals its approval of the government’s exit proposals might be deemed  sufficient.


Theresa May, prime minister, head of the executive


On the other hand, given the gravitas of the terms of our withdrawal from Europe, and the impact of this withdrawal upon our domestic affairs, an Act of Parliament, incumbent with the full weight of parliamentary scrutiny, might be the more democratic option.


Legally, the government’s reliance upon its Crown prerogative to obviate parliamentary scrutiny in the face of its constitutional obligations has, rightly, been called into question.

This is a matter of law and not politics.

As a matter of law, the High Court made the right decision. Constitutionally and legally, Parliament – most likely both houses, unless under the Parliament Acts 1911 & 1949 which allows the Commons to bypass the Lords in certain circumstances – must approve the triggering of Article 50. This is not to thwart the will of the people; this is not a plot to stop ‘Brexit’. Rather, this is the courts affirming the bedrock of our constitution: the sovereignty of Parliament over the Crown.


“In our judgment, the clear and necessary implication from the [European Communities Act 1972] … is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers.”

 R (Miller) v Secretary of State for Exiting the European Union [3 November 2016]


In practical terms yesterday’s ruling does not mean our exit from the European Union will not go ahead. Rather, it simply means that Parliament must be a part of this process.

We have a long and proud history of our legislative scrutinising and curbing the actions and powers of the executive. It is a vital part of the rule of law and the stuff our very constitution is made from; legislative supremacy and legislative scrutiny.

In the words of the late Law Lord Tom Bingham, from his 2010 book ‘The Rule of Law’:


“Governments have no more appetite for losing cases than anyone else, perhaps even less, since they believe themselves to be acting in the public interest and, in addition to the expense and disappointment of losing, they may be exposed to the taunts of their political opponents (who might, if in office, have done just the same). That is the inescapable consequence of living in a state governed by the rule of law.”

 “There are countries in the world where all judicial decisions find favour with the powers that be, but they are probably not places where any of us would wish to live.”


Yesterday’s High Court ruling will perhaps – should history judge it so – be one of the most fundamental rulings of our age, alongside the Magna Carta and The Glorious Revolution.

But this ruling is not a judgment upon our EU exit.

Rather, taken together with the Chilcot Report and Sir John Chilcot’s recent media utterances about Parliament’s supine position to the executive, yesterday’s ruling that Article 50 can be triggered – not by the narrow executive branch of state – but by Parliament, heralds a clear and legally binding reversal of a very worrying constitutional and undemocratic trend:

The narrowing of power in fewer and fewer hands.


Sir John Chillcot giving evidence to a parliamentary select committee


It was not always so. In times past, the prerogative powers of the Sovereign – the monarch – was challenged over divine rights to rule and law by decree. Such challenges resulted in Magna Carta, Statutum de Tallagio non concedendo, the Petition of Right 1628, the Habeas Corpus Act 1679, the Bill of Rights 1689 and Act of Settlement 1701, alongside a wealth of common law decisions curbing the excesses of executive powers.

British parliamentary sovereignty has since been diminished. In recent times, through Mrs. Thatcher and Mr. Blair’s creation of American style sofa government, the statutory instrument and Crown prerogative have increasingly become executive tools to circumvent – not the will of Parliament – but of parliamentary scrutiny.


Today, however, in light of yesterday’s High Court ruling, the pendulum has swung back a little. Today, the people’s representatives from all corners and traditions of Britain have been reaffirmed in the role entrusted to them by the electoral will of the people: representation of all public interests and scrutiny of the executive.


Written by Fionn Naysmith and Uther Naysmith.


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