“Well, here’s another nice mess you’ve gotten me into” is a famous saying from Laurel and Hardy. You have to feel sorry for Theresa May in some ways. Yes, she became PM without having to endure an election (so far) thanks to David Cameron deciding to call it a day on the morning of Brexit. But she hardly expected to be fighting to have the Brexit process confirmed as legal.
The High Court decided yesterday that the Secretary of State does not have power under the Crown’s prerogative to give notice under Article 50 for the UK to leave the EU. The decision is being appealed to the Supreme Court who will hear the case starting on 5 December.
Reading the judgement, I get the impression the High Court judges were very mindful that this decision would be appealed. They went out of their way to make as sure as possible that they covered all the possible angles of appeal. These judges don’t want to have their decision overturned.
So they dealt in the judgement with the recent Northern Ireland court case which had decided that to give notice without Parliament’s approval would be legal.
They said at para 20 of the judgement that there is no superior form of law than primary legislation, save only where Parliament has itself made provision for that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.
At para 21 they carry on to add but even then, Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has the power to repeal the ECA 1972 if it wishes.
At para 106, they state the Referendum Act 2015 falls to be interpreted in light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the UK. This leads (they say) to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language is used in the referendum legislation in question. No such language is used in the Referendum Act 2015.
At para 107, they state that the Referendum Act 2015 was passed against a background including a clear briefing paper to Parliamentarians explaining that the referendum would have advisory effect only. Moreover Parliament must have appreciated the referendum was only intended to be advisory, as the result of a vote in the referendum to leave the EU would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the EU.
This case is of great importance to remind us all how laws can be made in Parliament and who has the authority to make them. This is by no means the first time a case has been brought to court by an affected party claiming that the Government has exceeded its authority in trying to enact laws without taking the time and effort to pass primary legislation through Parliament.
My personal view is as follows: this Brexit decision of the people must be voted on in Parliament. The MP’s should then pass it because the people have told them to pass it. But the MP’s must not get involved in trying to negotiate the terms of exit. That is no way to negotiate with the EU negotiaters. That is for the government to do. Once the terms are finalised, then there should be another vote in Parliament to approve them.