Parliament must decide on Brexit process, says UK High Court
The High Court in London on Thursday (3rd November) decided that the British Government must seek approval by the Kingdom's parliament before beginning the process of triggering Article 50 TEU, which enables an EU member state to leave the Union.
The decision concerned a complaint filed by Ms Gina Miller, a businesswoman, against the plans of the Government to proceed with its intention to abandon British membership in the EU ('Brexit'), following the result of the referendum of 23 June 2016 on this matter.
British Prime Minister Theresa May informed at the last European Council the heads of state and government of the Union that she will officially give notice of exit on the basis of Art. 50 TEU by the end of March 2017. Her understanding has so far been that she, as PM, has the right to go forward with the implementation of the popular will using the concept of 'royal prerogative' (see more on this principle at the end of the post).
The High Court has, however, a different opinion on the constitutionality of Mrs May's plan.
Here is the full text of the High Court's judgment, issued by the Lord Chief Justice (Lord Thomas of Cwmgiedd),
the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. The notes (in parentheses in the text) were not available at the time of posting.
== QUOTE==
The question
1- The issue before the court is whether, as a matter of UK
constitutional law, the Government is entitled to give notice of a decision to
leave the European Union under Article 50 by exercise of the Crown’s prerogative
powers and without reference to Parliament. This is a pure question of law. The
court is not concerned with and does not express any view about the merits of
leaving the European Union: that is a political issue.
2- It is accepted by all sides that this legal question is properly
before the court and justiciable: under the UK constitution, it is one for the
court to decide [5]. It turns on the extent of the Crown’s powers under its
prerogative [explained at 24-29]. The Government accepts that neither the
European Union Referendum Act 2015 nor any other Act of Parliament confers on
it statutory authority (as distinct from the Crown’s prerogative power) to give
notice under Article 50[67-72, 76 and 105-108].
Background
3 - On 1 January 1973 the United Kingdom joined what were then
the European Communities, including the European Economic Community. Parliament
passed the European Communities Act 1972 (1972 Act) to allow that to happen
since it was a condition of membership that Community law should be given
effect in the domestic law of the United Kingdom and primary legislation was
required to achieve this [1 and 36-54]. The European Communities have now
become the European Union.
4 - Pursuant to the European Union Referendum Act 2015 a
referendum was held on 23 June 2016 on the question whether the United Kingdom
should leave or remain in the European Union. The answer given was that the UK
should leave [2].
5- The process for withdrawal is governed by Article 50 of the
Treaty on European Union, which states that once a Member State gives notice to
withdraw there is a two-year period in which to negotiate a withdrawal
agreement. If no agreement is reached in this time then, subject only to
agreement on an extension of time with the European Council acting unanimously,
the EU Treaties shall cease to apply to that State. The Government accepts that
a notice under Article 50 cannot be withdrawn once it has been given. It also
accepts that Article 50 does not allow a conditional notice to be given: a
notice cannot be qualified by stating that Parliament is required to approve
any withdrawal agreement made in the course of Article 50 negotiations [9-17].
6 - Therefore, once notice is given under Article 50, some
rights under EU law as incorporated into domestic law by the 1972 Act would
inevitably be lost once the Article 50 withdrawal process is completed [57-66].
The constitutional principles
7 - The most fundamental rule of the UK’s constitution is that
Parliament is sovereign and can make and unmake any law it chooses. As an
aspect of the sovereignty of Parliament it has been established for hundreds of
years that the Crown – i.e. the Government of the day – cannot by exercise of
prerogative powers override legislation enacted by Parliament. This principle
is of critical importance and sets the context for the general rule on which
the Government seeks to rely – that normally the conduct of international
relations and the making and unmaking of treaties are taken to be matters
falling within the scope of the Crown’s prerogative powers. That general rule
exists precisely because the exercise of such prerogative powers has no effect
on domestic law, including as laid down by Parliament in legislation [18-36].
8 - In the present case, however, the Government accepts, and
indeed positively contends, that if notice is given under Article 50 it will
inevitably have the effect of changing domestic law. Those elements of EU law
which Parliament has made part of domestic law by enactment of the 1972 Act
will in due course cease to have effect [76-80].
9 - The central contention of the Government in the present case
is that Parliament must be taken to have intended when it enacted the 1972 Act
that the Crown would retain its prerogative power to effect a withdrawal from
the Community Treaties (now the EU Treaties), and thereby intended that the
Crown should have the power to choose whether EU law should continue to have
effect in the domestic law of the UK or not [76-81].
Conclusion
10 - The Court does not accept the argument put forward by the
Government. There is nothing in the text of the 1972 Act to support it. In the
judgment of the Court the argument is contrary both to the language used by
Parliament in the 1972 Act and to the fundamental constitutional principles of
the sovereignty of Parliament and the absence of any entitlement on the part of
the Crown to change domestic law by the exercise of its prerogative powers
[82-94, 97-104]. The Court expressly accepts the principal argument of the
claimants [95-96].
11 - For the reasons set out in the judgment, we decide that the
Government does not have power under the Crown’s prerogative to give notice
pursuant to Article 50 for the UK to withdraw from the European Union.
What's next?
The UK Government has replied that it will challenge the decision before the Court of Appeal. If it loses, it may still bring the case before the Supreme Court.
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| UK court hierarchy - Oxford University Law School |
The appeal could be heard by the Court as early as December 2016. If its decision supports that of the High Court, a discussion and vote at the Parliament should be held in January of February 2017. The outcome of such process is, at this stage, difficult to predict. The supporters of the 'Remain' [in the EU], who include many MPs of the ruling Tory party, are revitalised after yesterday's verdict. However, a large part of politicians and voters have now added their support to Brexit, on the grounds that the judiciary should stay out of a political issue.
The situation is considered by experts as setting the floor for a potential constitutional crisis. A snap election is not excluded, in spite of the fact that regular legislative elections are scheduled for 2020 only. An electoral contest in the coming weeks or months should favour the Tory party, whose popularity (together with Mrs May's popularity) is very high. The Labour party should, in such event, see its presence in the Parliament further diminished.
To conclude, regardless of the outcome after the appeal, the Government will pursue its effort to take Britain out of the European Union. Its exit strategy may, however, change accordingly. The use of the royal prerogative principle will let Mrs May act freely in the negotiations with Brussels. On the other hand, a decision through the Parliament will strengthen the hand of the Remain camp, who may insist on a longer and softer Brexit process, in the hope that the negotiations will drag into 2020, by which time, through new elections and, perhaps, a new referendum, the popular decision of 23 June 2016 may be reversed.
What is the royal prerogative?
The royal prerogative is a set of powers that gives the Prime Minister and the Government the authority to make decisions without consulting Parliament.
These historic powers are officially held by the Queen, but in practice are used by cabinet ministers. In the past, the prerogative has been used to withdraw passports, make treaties and deploy armed forces.
The powers also cover the appointment and dismissal of ministers, civil service officers and QCs, the granting of honours and the commissioning of armed forces officers.
The Prime Minister can also use the prerogative to dissolve Parliament and call elections, declare war and recognise foreign states.
In the days of the death penalty, the royal prerogative of mercy enabled ministers to pardon those that had been sentenced. It now allows for sentences to be changed.
One of the more unusual parts of the prerogative is the Queen's ownership of Britain's swans.
(source: Daily Mail)Royal prerogative - see also:
https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom#cite_note-car-2
England: Oldest monarchy in Europe
England (and, as a result, Britain) boasts the oldest democratic and fair judicial systems in Europe! Paradoxically, it has the oldest monarchy of Europe, too! It is a paradox, because in most people's minds a royal regime does not equate democracy. But in Britain it does, thanks to the conferral, long time ago, of substantive governance decision-making to the Parliament, and to the clear separation of powers--legislative, executive, judicial.
Britain is also the fourth most ancient monarchy in function today in the world, founded 1,200 years ago. It is preceded in ranking by:
- the Japanese monarchy (probably 2,603 years)
- the Cambodian monarchy (approximately 1,900 years)
- the monarchy of Oman (probably 1,265 years)
[historical data about the founding monarchs are often difficult to verify].
Other old-standing monarchies of Europe, with more than 1,000 years of existence: Norway, Denmark and Sweden.
Some historians contend that the Vatican should be added to these, as it is a theocracy, thus a religious (albeit not parliamentary) monarchy. The objection to this rationale is that the Pope, head of the State of the City of Vatican (Stato della Città del Vaticano, which is a sovereign state within the territory of present-day Italy) is democratically elected by all the Catholic cardinals of the world and not appointed as the heir of the deceased, or abdicating, monarch.
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