THE BLOG

Article 50: Why The Courts Made The Right Decision

08/11/2016 01:43

This month the government lost their bid to trigger Article 50 without parliamentary approval. The government had said that it could use its prerogative powers - those powers held ultimately by the crown, but exercised by ministers - to bring the UK out of the EU. The courts held that Parliament needs to approve it. This was the right decision.

This case was not about the rights and wrongs of Brexit. It was not an attempt to block Britain leaving the EU. It is, rather, a recognition that whatever the outcome of the referendum, due democratic process must be followed.

For any democracy to work the rules have to be clear. They also have to be abided by. The support of a non-binding referendum is not enough to override the existing constitution. The supremacy of parliament is a time-honoured and hard fought for principle. It is a product of the Civil War and the Glorious Revolution, and has protected our freedoms for centuries.

The principle at stake here was whether the government could extend its own powers without consulting our representatives in Parliament. To allow ministers to activate Brexit without a Parliamentary vote would, in effect, allow the 1972 European Communities Act to be repealed without the consent of the Commons. If the government is allowed to do that, what other laws might they repeal without consulting parliament?

It is grand that the court have upheld the sovereignty of the British parliament. Those that voted to leave the EU wanted to restore the British parliament as the ultimate lawmaker in this country - and that is exactly what this court has endorsed. It would have been bizarre for Article 50 to be activated whilst by-passing the proper parliamentary mechanisms.

One of the reasons many people wanted out of the EU was because it was seen as undemocratic, authoritative, and opaque in its decision-making. In the UK we have a proud history of democratic debate and of laws being made through parliament. It is that history which the court has upheld today.

By no means does this mean Brexit is dead in the water. The court has not ruled on the referendum result, or what parliament should decide. It is for the government to find a way to steer this through Westminster, and for MPs to consider their own views in light of the decisive referendum result. This case was not a matter of politics, but one of due process, which the court has properly upheld.

The matter, it seems, will be leap-frogged up to the Supreme Court, where our most senior judges will consider it again. In my view, it is unlikely they will disagree with this decision. For lawyers, these issues are more than constitutional technicalities; they are the lifeblood of what we do. Due process and a respect for the law cement the difference between right and wrong, between justice and injustice.

Parliamentary sovereignty is at the very heart of that, and can never be disregarded.

The Battle of Brexit will no doubt linger on. Reportedly as this judgment was being made, German business leaders were begging Chancellor Merkel not to "let" Britain leave the EU. It seems unlikely that Mrs. Merkel or the High Court can stop what the British electorate voted for, but decisions like this can, at least, ensure that Brexit has a proper legal basis.

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