Yesterday the High Court ruled that the government cannot use Crown prerogative to give notice to leave the EU under Article 50. Unlike most who are commenting on this, I have read the judgement (here). Although I am no lawyer, the prose is clear and the point simple.
Firstly, Laws can only be made, amended or repealed by Parliament (i.e. both the House of Lords and the House of Commons). In this context, a law is anything that affects the rights of a UK citizen. However, the Crown (i.e. the government) can do things that don’t affect the rights of UK citizen without reference to Parliament, including entering into Foreign Treaties and going to war. Now these actions may well affect the wealth, health and happiness of the UK citizens, but they don’t affect their rights and so don’t require Parliamentary approval.
Although our membership of the EU is by Treaty (currently the Lisbon Treaty) it also grants the UK citizen rights in UK law, courtesy of the European Community Act 1972, as amended. Triggering Article 50 means that, absent any agreement with the EU to the contrary, the UK would leave in 2 years. some of the rights granted in ECA 1972 would expire, and that therefore means that Article 50 cannot be triggered Crown privilege. Hence the ruling.
Now, there are grounds for arguing that the ruling is wrong, or that the case should not have been heard. No doubt the government will make them on appeal. It may or may not win. However, as we stand we have a population that voted to leave, a government that undertook to enact the result of referendum and a Prime Minister who is now hamstrung. The situation is exacerbated by the bleating of self-interested politicians opposed to Brexit (and their acolytes in media and elsewhere) who are currently conflating the need for Parliamentary approval to trigger Article 50 with a line by line negotiation of an exit, or at least setting out the exit terms.
The ruling does not of itself require Parliamentary oversight of the exit process. All it requires is an Act to trigger Article 50, accepting that doing so will cause the loss of certain individual rights (most of them are quite arcane or silly, like losing the right to elect an MEP as the main rights accruing to EU citizens are already incorporated in UK law). Such an Act would probably get through the House of Commons, but it might stall in the House of Lords – although Mrs May could solve that by creating 200 or more Brexit peers. She might also be able to invoke the Parliament Act.
However, all of this is going to take time, and that time is causing uncertainty which in turn is doing economic damage to the UK. It is also frustrating the will of most of the people and is showing in stark relief just how unfit our current Parliament is. While it would be unprecedented for a referendum to be binding the Referendum Act 2016 could have expressly included wording to allow the use of Crown prerogative – as David Cameron clearly stated he intended to. But perhaps such an obvious provision was left out on purpose. It remains a scandal that the entire government operated on the assumption that the vote would be to remain. If it is the case that no consideration was given to how to leave (in a technical, legal sense) as part of the preparation of the Referendum Act then the cabinet of the time were fools, and their advisers incompetents.
While I can see the obvious attraction for Mrs May in winning an appeal, there is a significant chance that the government will lose it – certainly its performance thus far in court has been pretty poor. And it if loses it may lose worse. I think Mrs May’s best course is to introduce a sort Act, defy anyone in the House of Commons to vote against it (as it is now government policy she can and must whip it). The House of Lords, which you may recall remains in a state of unreformed idiocy, will then face the choice of obstructing the people’s will and that of their government, or gritting their teeth and passing it.
Tomorrow is the 5th of November. As Parliamentarians and their advisers head off for their recess they should reflect upon the mess that they have created.