The Supreme Court sat last week to hear submissions regarding the High Court Ruling that the Government may not use Crown Prerogative powers to trigger the famous Article 50 – the Article by which a member state leaves the European Union.
The UK government appeals the High Court decision and the Supreme Court is to rule definitively sometime in the next few weeks.
It must be remembered that the Government used its Prerogative powers each time new EU treaties were made, extending the authority of the EU over members States, including the UK. In each case, a Bill was introduced to Parliament to give domestic effect to the process already negotiated by the Government and agreed in principle. In each case the UK Parliament was expected to ratify what HMG had already signed up to.
That is undeniable historical fact.
HMG therefore is somewhat bemused that when it comes to re-establishing UK sovereignty by leaving the EU, the same process is frustrated.
You will remember that no Referendum took place to sign up to or implement the Treaties which formulated the EU out of the Common Market, the former EEC. At no stage was there a Referendum result to endorse the loss of UK sovereignty to the EU. And there were several such Treaties, notably Maastricht in 1992 and Lisbon in 2007.
Please note that this latter, Lisbon, is basically the European Constitution which was rejected by the electorates of founder members, France and the Netherlands in Referendums there. Tony Blair famously cried off a Referendum on that Constitution in the UK.
No less a person than former French President Valerie Giscard d’Estaing who was in charge of drafting the Constitution stated in Le Monde that the Lisbon Treaty was the Constitution revamped.
In 2016, however, the UK voted in an “In/Out Referendum” to Leave the EU. Suddenly the Crown Prerogative is called into question, despite their being an unprecedented popular vote to endorse its use, a vote of 17.4 million votes in itself an unprecedented number of votes in the UK for any Party or project …
The use of the Prerogative is called into question for purely political reasons. It is a blatant attempt to undermine the Brexit vote.
It is maintained that Parliament must have a say; but Parliament will have a say because the Government has announced that a Great Repeal Bill will be introduced in the summer of 2017 to repeal the 1972 European Communities Act which ratified the Government decision by use of Crown Prerogative to sign the Treaty of Accession.
Requiring that Parliament must approve the triggering of Article 50 is to introduce a novelty to a process that is well established, as outlined above. The novelty is based on the claim that the triggering of Article 50 will cause a process that cannot be stopped but which will deprive UK citizens of Rights established by EU treaties and guaranteed by the EU court, the European Court of Justice or ECJ.
It therefore makes use of the legal truth that HMG cannot sign treaties which impact on domestic rights. It can only use the Prerogative in matters that are purely foreign affairs, not domestic.
But this is to confuse the issue – as they well know.
The truth is that by leaving the EU, the UK brings back control of its citizens Rights to its own Parliament and Government. It establishes our national control of citizens rights. The assumption in their thinking is that it requires the EU to establish and guarantee UK citizens various rights; in a sense true because the UK government and Parliament have progressively ceded such authority to the EU ..
But complete Sovereignty has not been ceded. And to suggest that UK institutions must be supervised by the EU regarding British citizens rights is to reduce the significance of our national institutions to what they already are in the eyes of Remainers – dependent local councils ! And it is to wilfully ignore the fact that the coming Repeal Bill will carry over EU law on such matters to UK law – there can be no practical alternative, in fact.
The EU cannot claim the final say [there is nonsense talk of an appeal from the Supreme Court ruling to the European Court …] because the EU is predicated on Treaty, and it has explicitly recognised the ultimate sovereignty of each member state by the Article 50 provision. That article provides for a state to leave the EU by indicating that it wishes to do so, in accordance with the member state’s own constitutional mechanisms.
And this has already begun to happen by virtue of the June 23rd Brexit Referendum. Parliament made provision for that Referendum, and everyone understood it to be definitive and that Parliament would abide by its outcome. Parliament gave the decision over to the people, and to plead the technical language of it being “advisory” is to wilfully ignore the meaning of the word “advisory” in the context of our Constitution.
All in all, the High Court ruling of November 3rd was constitutionally in error. It was also a political decision to respond to a politically motivated request.
The Supreme Court must now state the correct Constitutional position, and that should accord with the line of argument above.
If the Supreme Court finds otherwise, it will be because it has taken continental EU legal thinking and set it above British constitutional and legal thinking. It will be submitting the UK constitution to the very legal and political framework which the June 23 rd vote was intended to decide finally.
While the Supreme Court may be able to make out a case for upholding the High Court ruling, it will be acting in the face of all the evidence on the use of the Prerogative provided by the process of establishing the EU out of the EEC.
As the Attorney General stated in his Appeal submission on Day One of the hearing last week, where Parliament wishes to limit the Crown Prerogative, it does so explicitly. Where it does not, it does not wish to. If Parliament does not like a use of the Prerogative, it is free at any time to make that clear and to do so. It did not do so in this instance [the Referendum Act].
This goes to the heart of all the politics on this issue.
The Remain campaign expected to win. They did not foresee a Leave vote. They left in place the existing arrangements on the Prerogative because it had served their purpose very well until now. They did not foresee that the existing arrangements on the Prerogative might equally be used to implement a Leave vote.
The political fact that there are leading politicians willing to frustrate the June 23rd Brexit vote has become even more evident in the weeks since I last wrote.
John Major has characterised the Leave vote as “the tyranny of the majority” [I thought that June 23rd was democracy in action – of course Major being a good Eurocrat, he holds that democracy must be subservient to goddess Europa ..].
David Steele has actually said there should be a Referendum on the terms of the Brexit deal, and if the deal is rejected, then we just remain in the EU. I heard him actually say this on Radio 4 …
Tony Blair has also called for a second Referendum with the clear intention of getting the June 23rd vote reversed. Classic EU tactic …
None of these men is prepared to accept the June 23rd vote; all of them show themselves as so enamoured of the EU project as to make democracy subservient to what amounts to their religious devotion to a failing Ideal.
And the fact that Gina Miller’s action in attacking the Crown Prerogative is intended to frustrate the June 23rd Brexit vote is revealed in the comments of the newly elected Lib Dem MP for Richmond Park.
She has stated explicitly that she has a mandate to vote against the triggering of Article 50.
In view of the Brexit vote on June 23rd 2016, Parliament has a constitutional duty to implement that vote, and to Repeal the European Communities Accession Act 1972, and vote through any other Bill necessary to do so.
Remain minded MPs like the lady for Richmond Park should bear that in mind.
Since writing the above the following legal comment on the High Court’s ruling has come to my attention: