I'll be in Belfast next week to start working on the consequences of the so-called Brexit vote in the UK, firstly in Northern Ireland. Then I'll start working in our French suburbs again. I produce stories for radio because in television, control is always putting an end to any story a journalist tries to produce independently, I see it every week in different newsrooms. I've lived it for so many years, working with so many different networks.
But don't we need enlightened media more than ever in Western so-called democracies?
The British press scares me... And French press has no courage.
Sometimes I wonder is the idea of democracy really does exist anywhere on this planet... Of course, the Parliament should rule the the EU / UK situation in a country that is a parliamentary regime... What is the Daily Mail preaching?
Brexit
judgment reinforces the supremacy of parliament
An expert
in constitutional law assesses why the government has been told that it cannot
use the royal prerogative to trigger Brexit
Sionaidh
Douglas-Scott
Sunday
6 November 2016 06.04 GMT
In a landmark legal
decision last Thursday, the high court upheld a legal challenge
brought against the government by Gina Miller and others, and ruled the
government cannot use the royal prerogative to trigger article 50 of the Lisbon
treaty, and so formally commence the process to leave the EU, without
parliamentary approval.
The court’s
judgment means that the process must be subject to parliamentary control and
oversight. Importantly (especially in the light of some recent media comments),
the court stressed that this is purely a question of law and that the court is
not concerned with, and does not express any view about, the merits of leaving
the EU. That is a political consideration.
In brief,
the case arose because article 50 allows the UK to withdraw from the EU “in
accordance with its own constitutional requirements” – but there was
disagreement as to what the UK constitution actually requires.
The
government argued that it could use royal prerogative powers (namely, that
residue of monarchical authority now exercised by ministers) to authorise the
UK’s withdrawal. While it is clear that prerogative powers cover international
relations and the conclusion of treaties, it is settled UK constitutional law
that an act of parliament – in this case the European Communities Act (ECA)
1972 – cannot be supplanted by the exercise of a prerogative power.
The court
accepted the claimants’ arguments that, once notice is given under article 50,
some rights under EU law (as incorporated into domestic law by the ECA) would
inevitably be lost on completion of the article 50 process. Therefore, the government
cannot give notice under article 50 without reference to parliament. This
judgment can be seen as a victory for parliament. During the EU referendum,
voters were constantly urged to “take back control” and regain parliamentary
sovereignty from the EU.
Yet in what
sense is parliament taking back control, if the government is able, using its
ancient prerogative powers, to manage the whole EU withdrawal process without
any significant parliamentary involvement? That would be extremely undemocratic
– and democracy is what we are told the EU referendum was about.
Furthermore,
the court’s judgment makes clear that the exclusion of parliament in the
process is not only undemocratic, it is illegal. There is a wealth of case law
supporting the claimants’ case, some of it dating back to the 17th century and
the English civil wars. Those wars, and the ejection of two kings during that
century, established that parliament is sovereign and that the executive cannot
ignore it, where it has no legal authority to do so.
This
judgment makes clear that the government does not have any such legal authority
in the context of triggering article 50. However, it must be stressed that the
judgment also makes clear the importance of rights in the Brexit process. Much
of the judgment concerns legal arguments over the ECA, which can seem arcane.
Yet they are of vital importance to every citizen.
The EU has
been described as a “new legal order” and it is in many important aspects
different from ordinary international law. One such aspect has been the extent
to which it confers rights on individuals. Through the ECA, every UK national
has been endowed with rights under EU law – rights of free movement and
residence in other EU countries, but also many other types of rights, such as
employment rights, consumer rights, or rights to information. Some of these
will vanish as a result of triggering article 50 and the withdrawal process.
The
government has said it will transfer some EU law into UK law through a “great
repeal bill”, and then decide in future whether or not to retain it. Thursday’s
judgment makes clear that decisions that inevitably remove rights may not be
taken by the executive alone. Parliament must be consulted.
What are
the practical consequences of this judgment? First, a government spokesperson
has said the government will appeal, in which case it will be fast-tracked and
heard very quickly by the UK supreme court. The government might try to change
its position, and argue that a notification under article 50 could be
revoked – this would be the opposite of its high court concession that
triggering article 50 would inevitably result in the withdrawal of the UK from
the EU (and so lead to loss of individual rights). At present both government
and claimants are treating the triggering of article 50 as the inevitable point
when it becomes clear that the ECA will be repealed.
But if it
were acknowledged that such a move is reversible, the point would be that, in
triggering article 50 by executive act, the government would not be
subverting statute at that point, it would not be rendering the ECA a dead
letter, inevitably leading to a loss of rights.
Some
believe a notification under article 50 is revocable. But this would
involve a question of EU law, and the final answer could only be given by
the European court of justice. Moreover, such a reversal of the
government’s arguments would be politically risky, as it would amount to
acknowledging that the UK might decide not to leave the EU, and that Brexit
does not mean Brexit after all, perhaps not a very likely position for the
government to take.
Thursday’s
ruling is a strong judgment, by a powerful trio of judges including the lord
chief justice, and its reasoning looks hard to overturn. If the ruling stands,
it will be necessary for a bill to be introduced in parliament. Although it is
highly unlikely parliament will vote against triggering article 50,
parliament may well seek to impose certain conditions on the government.
The June
referendum resulted in a vote for the UK to leave the EU. However, it did not
determine the way in which the UK leaves the EU. The court’s judgment means
that the elected parliament will have a role in debating and deciding many
matters, rather than their being determined in private by the executive.
Finally,
the judgment raises a question of the role of the devolved nations. If
Westminster is to be involved, what about the devolved parliaments? By
constitutional convention, devolved parliaments are asked for their consent
when Westminster either legislates with regard to devolved matters (see section
28(8) of the Scotland Act) or where it legislates to increase or reduce their
powers. If a bill is introduced allowing article 50 to be triggered, would
this require legislative consent motions, and, if so, would the devolved
nations give their consent? Conflicting answers have been given on this point,
and the issue is highly politically charged.
One thing
is clear – Brexit is constitutionally fascinating, as well as constitutionally
problematic. It also raises as many difficult questions for our understanding
of the British constitution as it does of the UK’s relationship with the
European Union.
Professor
Sionaidh Douglas-Scott is anniversary chair in law and co-director at the
Centre for Law and Society in a Global Context, Queen Mary School of Law,
University of London
