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The Supreme Court must overturn the Article 50 ruling. Otherwise, we face a constitutional crisis
In its ruling that the Government must seek the approval of Parliament before beginning the process of taking Britain out of the EU, the High Court states that “this is a justiciable question which it is for the courts to decide”. Herein are the seeds of what could become the biggest constitutional crisis since the Parliament Act battles of 1910/11. Justiciable or not, this is a matter that the courts should have declined to hear.
The High Court – comprising Lord Thomas, the Lord Chief Justice; Sir Terence Etherton, the Master of the Rolls; and Lord Justice Sales – should have dismissed the case as an abuse of the legal process because its intention, whether acknowledged or not, is to overturn the decision taken by a majority of voters in the referendum on June 23. This is a political dispute to be settled in Parliament, not by judges and there are good reasons why they should have kept out.
This country’s constitutional dispensation is a historically crafted balance of countervailing powers exercised through Parliament, the executive and the courts. For this trinity to work, its constituent parts must each respect the boundaries set down by law and convention.
Parliament is the sovereign body; but the executive retains residual Royal prerogatives that can be used without recourse to parliament. The courts can hold government in check when it oversteps or misuses the powers given to it by parliament, to which it is also accountable.
But the referendum introduced a fourth element into this mix: the will of the people. How can this be made manifest in a system of representative democracy? The High Court made no judgment on the constitutional ramifications of the June 23 vote. It insisted that its only function was to consider whether in law the Government can exercise the prerogative powers it possesses when it comes to triggering Article 50.
The court cannot simply pretend the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote, something not considered in the original legislation under which we joined the Common Market.
The court said that the European Communities Act 1972 did not give the executive the power to take the UK out of the EU without a vote in Parliament. It argued that it was inconsistent with the constitutional purpose of the Act for the Government to be able to undo the UK’s accession by use of its prerogative powers. Maybe so; but it is not inconsistent with the outcome of the referendum.
It is a widely accepted principle that the Government cannot change any part of the law of the land through its prerogative power. The judges said triggering Article 50 was tantamount to overturning domestic legislation by executive diktat. However, this would not change the law whatever the court asserts. Rather, it would begin a process under which the law would eventually be changed by way of a Great Repeal Bill which needs to go through parliament, thereby giving MPs a say in any case.
There is an argument to be had over whether the Government can trigger Article 50 without a vote in parliament; but it is above all a political, not a legal one. It might have been better had Theresa May made clear from the start that there would be a vote on Article 50 since she would then have been able to control events rather than being buffeted by them.
If MPs are given a vote on Article 50, then they are obliged by the outcome of a referendum that parliament agreed overwhelmingly to hold to begin the process leading to Brexit. Theoretically, they can block it; but it is hard to believe that they would. But they could frustrate the way it happens especially if the court ruling requires legislation, as David Davis, the Brexit Secretary, suggested.
Is legislation really necessary? Surely Article 50 can be triggered by a single vote. A well-established legal precedent is that the courts cannot instruct parliament to introduce legislation so why does the Government think it might be needed in this case? A Bill would open up the scope for amendments that would tie the Government’s negotiating hands and could be blocked in the Lords.
Those who want Britain to stay in the EU welcomed the High Court ruling as a “great day for democracy”. In truth it is a bad day for the British constitution. Whatever their protestations of legalistic propriety the courts will be perceived to be helping to frustrate Brexit. That cannot be a good place for the judiciary, which is why they should not have heard the case in the first place.
It now falls to the Supreme Court to make a sensible ruling and reverse the lower court’s decision. The alternative will be a constitutional mess that might well end in a general election. Is that what the courts intended to bring about? If not, they should have kept their judicial noses out of politics.
Professor Richard Ekins