Some more (Br)experts

The UK High Court ruling that Brexit must be triggered by a vote in Parliament is a sign of national sovereignty doing exactly what it's supposed to.

November 15. 2016

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Some more (Br)experts

The UK High Court ruling that Brexit must be triggered by a vote in Parliament is a sign of national sovereignty doing exactly what it's supposed to.

Recall back to October this year the initiation of the legal challenge to the Government’s position on Brexit, the sliver of hope for any individual with a vested (or even unaware) interest in the UK remaining a democracy.  The UK’s High Court has recently ruled that Theresa May’s (worryingly authoritarian) government cannot trigger Article 50 of the Lisbon Treaty (the legal mechanism for initiating a country’s exit from the EU) without a vote in parliament.

Some confused Brexiteers fail to understand that the ruling is a progressive step for their (misguided) interests as well

From a legal standpoint this decision is not surprising. What is surprising, no, harmfully idiotic, is the backlash that the judgment and the judiciary have already received from staunch Leave campaigners, spring-boarded by shockingly irresponsible media coverage from particular outlets.

If you understand the distinction between the legal sphere and the political sphere, as any child can comprehend, the frustrating political aspect now frantically flailing in its attempts to take hold of this legal position is that some confused Brexiteers are failing to understand that the Court’s ruling is a progressive step in the correct direction for their (misguided) interests as well.

So why is this ruling by the Court not surprising? Remember that word frequently thrown around by the current government, most notably by its zealously arrogant leader? The same word also used by rampant nationalists who struggle with its meaning, and instead conflate it with misplaced feelings of a long-gone British empire? You know the one: sovereignty.

Put simply, sovereignty is about the power and authority of countries to govern themselves. The primary question before the Court was a matter of constitutional law regarding whether the Crown, acting through the current government, can use its prerogative powers to trigger Article 50 for the UK to cease being a member of the EU without the involvement of parliament.

This judgment has nothing to do with ‘winning’ or ‘losing’

The Court was not addressing – or concerned with – any of the implications of the UK potentially leaving the EU. The Court clearly noted this point from the outset: “Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law“.

The judges presiding over this case were acting in their professional capacity and were certainly not ‘interfering with the interests’ of the wider UK population’s (now considerably diminished in number) Leave associates. This accusation has been thrown around by far too many people through senseless media coverage who are questioning the judges’ underlying motives for arriving at this conclusion, because they are apparently ‘frustrated’ with Remain voters being ‘sore losers’. This is despite the fact that this judgment has nothing to do with ‘winning’ or ‘losing’ in the laughably named Brexit battle.

The courts in the UK are not ‘enemies of the people’; they exist to protect the people by upholding the rule of law.

There have been numerous calls from concerned citizens for Lord Chancellor Liz Truss to better defend the judges of this case in light of the dangerous accusations in the press. However, so far there has been a clear lack of appropriate defense – despite the need to condemn the disingenuous content in the press, while clarifying the importance of an impartial judiciary and the rule of law to the wider public.

The UK Parliament, not purely the Government on its own, has the right to create or remove any law, and no entity can override parliament

The stance of government toward the High Court case is that it was an attempt to ‘invalidate’ the public’s decision in the referendum to leave the EU. This position of government is not only irresponsible, it damages the public’s perception of the UK’s legal system.

As for the newspapers attempting to shame the individual judges presiding over this case, they need to quickly get a grip – judges’ personal lives are none of anyone’s business, not to mention irrelevant in this circumstance. It is necessary to unpack a discourse regarding certain media outlet’s warped perception of factual accuracy and relevance, but this is another issue – see how easy it is to distinguish separate features of a particular set of circumstances.

Moving on to summarizing the reasoning in the judgment regarding the constitutional details at issue, the Court highlighted (quite correctly) that the “most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme“.

This means that the UK Parliament, not purely the Government acting on its own, has the right to create or remove any law, and no entity can override parliament. Government cannot limit this parliamentary sovereignty, but through the functioning of parliament there are constitutional limits on the prerogative powers of the Crown.

Parliament was needed to give effect to EU law, meaning it should also be parliament that gives notice to trigger Article 50

One feature of UK constitutional law is that in the course of international relations with respect to treaty making, the Crown can exercise its prerogative powers on behalf of the UK. This feature in this particular case is a complex component because the Crown – acting though government – can create effects on the plane of international law, but cannot change domestic law.

There is a predicament here, as EU legislation forms part of domestic law in the UK. This issue turned on the Court’s holding that ‘as a practical matter’, the Crown could not have ratified the accession of the UK to the EU “unless parliament had enacted legislation“. Parliament was needed to give effect to EU law and its applicability in the domestic setting of the UK’s legal system, meaning it should also be parliament that gives notice to trigger Article 50.

The Court also took the view that “[i]t is common ground that if the United Kingdom withdraws from the Treaties pursuant to a notice given under Article 50 of the TEU, there will no longer be any enforceable EU rights in relation to which this provision will have any application“. This was one of the grounds put forward by the claimants, in that if the UK leaves the EU then the claimants’ substantive rights under EU law would be compromised.

In addition, the Court impressively tackled the potential hurdle of the flexible language embedded in the Referendum Act (2015). In just four paragraphs, the Court reminded everyone that:

“the 2015 Referendum Act 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 that the referendum was intended only to be advisory as the result of a vote in the referendum in favor of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

This added to the UK High Court’s already substantial analysis of incredibly intricate legal questions, which ultimately led to the (sound) reasoning that the Government does not have power to give notice pursuant to Article 50 of the Lisbon Treaty for the United Kingdom to withdraw from the European Union.

Leave voters should want to ensure that if the UK does exit the EU that the process is undertaken diligently, not to mention legally

This ruling of the Court was preceded by an additional note loaded with the foresight that confused illiterates just might be bewildered by this stance, thus the Court once again repeated for clarity that: “This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere“.

Let’s hope government can start to take better account of the significance of the Brexit circumstances, but from what has unfolded so far – exposing their woeful incompetence – nobody should hold their breath. The important point to bear in mind from this judgment is that it is exactly this type of due process that upholds the pivotal democratic standard that any public decision cannot be railroaded by a government of the day’s plans to secure more votes, which is all this nonsense boils down to at a political level.

Erroneous Leave voters should want to ensure that if the UK does exit the EU that the process is undertaken diligently, not to mention legally. Upholding the rule of law should be a central pillar of the Brexit process.

The individuals in parliament have the responsibility to uphold your interests

The political significance of this result (if it is upheld – but we’ll get to that) will depend on the general public’s engagement in the situation. On this note I would like to briefly voice a point that is of the upmost importance for any person who does not want the UK to exit the EU: this legal decision will not ‘stop’ Brexit. If you don’t want Brexit to happen, the only way this decision from the Court, or any other potential future decision by the UK Supreme Court (UKSC) in upholding the High Court’s judgment (or even the Court of Justice of the EU – we’ll get to that as well), is going to significantly reduce the probability of a UK exit from the EU, is if you start (or continue) to lobby parliamentarians right now.

The individuals in parliament will be the ones who (hopefully) get to vote on the EU referendum’s result. In such a capacity, they have the responsibility to uphold your interests. Obama has inspiringly emphasized that ‘democracy is not a spectator sport’; and don’t ever forget that there is so much more you can do on-top of making the effort to vote. Your opinion and voice matter; especially in such uncertain times like these.

The future of the UK with respect to its relationship with the EU and the wider world is in your hands – no one else’s. For Leave voters that regret their decision since the 23rd of June, you can also make it clear to the politicians in parliament that you made a mistake, an understandable one if you consider the outright lies plastered across the UK by the Vote Leave campaign – lies that have now become the subject of a criminal investigation by the Crown Prosecution Service into alleged violations of electoral law.

Mistakes are OK. And you can most definitely move on from them – just look how quickly Dodgy Dave moved on from his biggest one. Let the parliamentarians hear your viewpoints. Email them. Write to them. Parliamentary members’ contact details are available online. Get involved. You have a public duty to do so – Brexit will have many negative knock-on effects, which may well lead to further crises.

With no written constitution, the courts in the UK are at a disadvantage in deciding upon matters of law such as those in the present case

Getting back to the legal implications, this case is going to be appealed by the Government. A date before the UK Supreme Court has already been set. Hilariously, this case could also end up in front of the Court of Justice of the EU (CJEU), most notably because a UKSC referral to the CJEU may well be legally unavoidable owing to the clear contentious issue of the irreversibility, or potential reversibility, of an Article 50 notification.

The UKSC should provide some clarity on this point, and no matter what stance it takes, a challenge could be heard by the CJEU at a later point in time. On the one hand, if the UKSC overrules the High Court’s judgment, encompassing the point made regarding the irrevocability of triggering Article 50 – which the High Court did not rule on – then the UKSC will need to elaborate upon the legal rationale that the High Court has misjudged, and if it does so, its reasoning could still be contested. If the UKSC chooses not to rule on this point, avoiding it like the High Court, a case could still be brought before the CJEU to clarify this underlying point of law.

On the other hand, if the UKSC upholds the High Court’s ruling, it will be either implicitly or explicitly accepting the premise that once Article 50 is triggered such an action is legally irreversible, meaning the CJEU would still need to be called upon in order to clarify such a position. Either way, if the UKSC does not request a preliminary ruling from the CJEU, then arguably the UK would be breaching EU law, as such an omission would be impinging upon a body of law under which the UK has obligations.

The legal (Br)experts from the High Court have thankfully made it clear to everyone that the Government cannot do whatever it likes, which is paramount to upholding democracy through the rule of law

There is no doubt that the decision by the High Court is a progressive step for domestic law in the UK. However, with no written constitution the courts in the UK are at a disadvantage in deciding upon matters of law such as those in the present case. There are incredible nuances under various areas of law to this unprecedented situation and position.

It is possible that the High Court’s arguably broad-brush approach to certain contentious points in the case, such as the Referendum Act, the international law elements, and the considerably complex details of UK constitutional law, will be the key components that should be expanded upon by both parties to the dispute and the UKSC come the appeal. There are undoubtedly interesting times ahead.

In spite of Moronic Michael’s opinion that the public ‘have had enough of experts’, the legal (Br)experts from the High Court have thankfully made it clear to everyone that the Government cannot do whatever it likes, which is paramount to upholding democracy through the rule of law.

The claimants in this case have a legitimate claim, and – much more importantly – have a right to have it heard before a court of law. If the eejits outwith the realm of sober logical reason feel the burning need to dispute any aspect of this case, it should be that the Court was effectively examining whether triggering Article 50 without parliamentary approval would be unconstitutional, in a country with no written constitution.



The opinions expressed in this article are entirely the author’s own and do not reflect those of any entities to which he is affiliated.

Image: R/DV/RS

November 15. 2016