THE BLOG

A Victory For The Rule Of Law And Parliamentary Democracy

27/01/2017 11:11 GMT | Updated 27/01/2017 11:12 GMT
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After last June's Referendum, then Prime Minister David Cameron suggested it was possible to serve the notice for withdrawal from the EU without reference to Parliament. In response my client Mr Dos Santos brought the first legal claim challenging that and arguing that service of the notice to withdraw under Article 50 requires Parliamentary approval. He was, of course, joined by Gina Miller and others, seeking not, as some have said, to thwart the democratic will of the people but in order to ensure the correct and lawful process applied to triggering Article 50. The claim was not about in or out of the EU. Mr Dos Santos voted for Brexit actually and sought only to establish the lawful process for achieving this.

The case raised issues that are the most significant constitutionally of our time, arguably the most important since the abdication crisis in 1936.

The question for the Court was whether the Government has the right to start withdrawal using the power of Royal Prerogative or can only do so with Parliament's agreement by statute. Their decision has vindicated those who believed in and sought to reaffirm our Parliamentary democracy.

The Supreme Court decided that the rights attaching to our membership of the European Union were given by Parliament and can only be removed by Parliament. This result is a fresh assertion by the Court that our elected MPs in Parliament have the sovereign power to grant rights and remove them; a power only constricted by consideration of human rights and the rule of law.

The decision is not just a victory for Parliamentary democracy however, but also the rule of law. It vindicates the claimants' courage and determination to shine a spotlight on the rightful process as well as the role that the law plays in forestalling arbitrary actions by Government.

It is well known that both my client and his co-claimant Gina Miller have received hate mail of the most vile and threatening nature during this case. Yet the fact their case has been heard and determined by the Courts with reason and respect is evidence that the rule of law continues to run effectively in this country.

The Court itself has been vilified and Judges subject to intense media criticism and intimidation. Yet a determination has been made based purely on the legal issues which is as it should be. The Government and the Lord Chancellor have said they respect the Court's decision. It is reassuring that the principle of the rule of law remains sacred.

Some have asked what is the point of this judgment given the Prime Minister already said she will give Parliament a vote on the Brexit deal. But what was proposed did not make the cut for us or the Court. Theresa May's offer of a vote after negotiations ie after the Article 50 notice is served, would have left MPs with a fait accompli; vote for the deal as presented or face going out with no deal. The Government is now duty bound to hold that vote before it triggers Article 50 in March and Theresa May has even now agreed to offer MPs a White Paper laying out her Brexit plans. When considering the Article 50 statute Parliament must pay pay special attention to individual citizen's rights and MPs may want to consider what safeguards are in place before removing such.

This has been a unique and difficult case where the legal issues were often clouded by a polarised and politically charged backdrop. Yet, the Supreme Court has clarified important issues for our nation about the domestic constitution of the UK and the relationship between Parliament and our Government. We should all welcome this.

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