On Brexit and the role of the British Parliament

 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?

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The British press scares me... And French press has no courage.

What can we do and where can we still write?

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?

Here below is a simple series of useful statements.


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Gina Miller: Brexit ruling prevents UK from being a 'tin-pot dictatorship'

Lead claimant in high court battle to give MPs a vote on EU exit says people should thank her for creating legal certainty

Press Association

Sunday 6 November 2016 10.39 GMT

Gina Miller, the businesswoman behind the successful legal battle against launching Brexit without parliament’s approval, said the high court ruling has stopped the government behaving like a “tin-pot dictatorship”.

The investment fund manager and philanthropist said the press had “behaved disgracefully” following the court judgment. She told BBC One’s Andrew Marr Show: “This is about creating legal certainty, and actually, everyone in the country should be my biggest fan because I’ve used my own money, and a few of us used our own money, to create legal certainty for Mrs May to move ahead.”

She said it was “misdirection” to claim that the decision was unpicking parliamentary sovereignty. “The case is that she cannot use something called the royal prerogative to do it because we do not live in a tin-pot dictatorship,” she said.

Miller, 51, was born in Guyana but grew up in Britain. She co-founded the firm SCM Private and previously launched a campaign with her hedge-fund manager husband, Alan, against mis-selling and hidden fund charges in the City of London’s fund management industry.

Reaction to the Brexit case had been fuelled by sexism, racism and homophobia, she said. “I was aware there would be nastiness because if there’s anything to do with the word Brexit, people lose their minds and it’s all about heart.”

Meanwhile, Nigel Farage warned there would be disturbances on the streets if parliament attempted to thwart Brexit. The interim Ukip leader said political anger – “the likes of which none of us in our lifetimes have ever witnessed” – would emerge if voters felt they were going to be “cheated” over the June referendum result to leave the EU.

He called on Brexit backers to “get even” through peaceful protests and oppose at the ballot box anyone who seeks to overturn the process. But Farage claimed he was “finished” with party politics, as he sought to downplay any potential return to leading Ukip in future. 

The MEP told Marr: “We may have seen Bob Geldof and 40,000 people in Parliament Square moaning about Brexit. Believe you me, if the people in this country think they’re going to be cheated, they’re going to be betrayed, then we will see political anger the likes of which none of us in our lifetimes have ever witnessed in this country. Those newspaper headlines are reflecting that.”

Asked if there was a real danger of “disturbance in the streets” if Brexit was thwarted by parliament, Farage replied: “I think that’s right. I heard you talking to Gina Miller earlier about the nasty things that have been said about her. Believe you me, I’ve had years of this, I’ve had years of hate mobs – taxpayer-funded hate mobs – chasing me around Britain.

“The temperature of this is very, very high. Now, I’m going to say to everybody watching this who was on the Brexit side – let’s try to get even, let’s have peaceful protests and let’s make sure in any form of election we don’t support people who want to overturn this process.”

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EU referendum and Brexit

The Observer

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