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Friday 4 November 2016

Court Rules That Brexit Is Subject To An Act Of Parliament

A legal challenge brought by Gina Miller, a London businesswoman, as to whether or not the Government can invoke Article 50 to get us out of the EU without going through Parliament has concluded; Gina won but the Government will appeal. Let's take a look at what happened.

The argument


Gina Miller argued that the inevitable consequence of invoking Article 50 was the loss of statutory rights enjoyed by UK and EU citizens. Given the effect on the laws of our land, should an individual or group in Government have the right to trigger Article 50 or should Parliament sign off on it first?

The Brexit Secretary's take was that the matter had been settled by the Referendum, that they effectively are "the Crown" and that therefore it is up to them to decide when to invoke the Article, no need for Parliament to stick its nose in.

The judges argued the merits and demerits of the case, noting that their judgement had no bearing on the actual triggering of Article 50, just on whether or not there was a legal basis on which to bring the case, and who could invoke Article 50 and how. Let's take a look through the judgement.

Parliament got us in, it can take us out


First of all the judges reminded the court that UK joined the EC (as it was called then) via the European Communities Act 1972, i.e. an Act of Parliament. Then they laid out the actual process for exit as delineated in Article 50 of the Lisbon Treaty 2007. These four provisos must be taken into account when considering Brexit:

  • "...the EU shall negotiate... an agreement with that [withdrawing] State..."
  • the scope of the agreement is within the EU legal framework and subject to approval by the European Council
  • exited states are in limbo for two years after notice to quit (paragraph 3), they have no right to take part in decision-making in the EU
  • exited states can't change their minds and return as they were but they can start all over again

The judges are aware of this. The most amusing part of the judgement is in paragraph 13: any withdrawal agreement drawn up by the Government will most likely be a treaty that requires reviewing and ratifying by Parliament, per Section 20 of the Constitutional Reform and Governance Act 2010, i.e. Parliament could potentially delay the Brexit process, keeping us in limbo, until they've had a good long look at the treaty negotiated with the EU to leave it.

Does Crown perogative trump Parliamentary sovereignty?


UK constitutional law is not contained in a single declararatory document, it consists of an ever-growing patchwork of laws and legal rules that govern the exercise of power and subject it to the rule of law. "The Crown" is effectively the Government, which cannot change the law of the land without consent of both Houses of Parliament. Parliament trumps the Crown via enactment of primary legislation. Only the ECA 1972 can override this. However, ECA 1972 can be repealed if Parliament so desires. The Crown (or Royal) perogative is restricted to cases not covered by statute, per case law. This can only be exercised within the boundaries of common law. In other words, no, Theresa May can't give notice to Brussels that she's planning to take us out of the EU without consulting Parliament first and obtaining its consent, even if she thinks she can.

The rule of law trumps all


The judges are saying that Brexit is a law because we entered the EU via an Act of Parliament so it'd take an Act to get us out, end of. The Crown, then, is not "the law" and it can't make or change the law, that's Parliament's job and to argue otherwise is to deny the rule of law, which actually trumps Parliament itself. Basically, if the effect of triggering Article 50 wasn't to alter the law of the land, the Crown (i.e. the Government) could go ahead and invoke it, but since it does, it can't. That's the deal.

The right wing press have jumped the shark


This case has provoked a shocking reaction in the right wing media which reveals complete contempt for the rule of law. The Daily Express even went so far as to call the three presiding judges "Enemies of the people."
It seems that applying the law of the land — not of the EU, the settled, traditionally accepted law of this sceptred isle — is not sufficient for the Brexit brigade. They want the Brexit line toed, and to hell with the consequences. But as the judges pointed out, it is Parliament, not the Queen, not the Prime Minister, and not a sitting government, that changes the law of the land and it is therefore for Parliament to invoke Article 50 after an exit treaty has been properly scrutinised and debated. It is constitutional, written law that rules this land, not populism — and thank God for that. In my opinion, for the press to declare otherwise is irresponsible.

Could populism trump the rule of law?


The Brexit brigade have been relying heavily on populism to push Brexit through. Our Glorious Leader Theresa May appears to have been caught up in this in an effort to prove her "Brexit means Brexit" credentials:
This appears to be part of a wider strategy to discredit dissenters:
The tinfoil is strong with this one:
So much for the Brexit press. As one waggish barrister pointed out,
This quote from a particularly ignorant Tory made me wonder if stupidity is contagious:
The last thing any sensible person wants is an elected judge. Seriously, imagine Nigel Farage behind the bench. Go on, imagine it. Meanwhile, outrage manufacturing machine the Daily Fail is convinced that the rule of law is what the Government says it is when it's lying to us:
It's Parliament's job to change the law of the land, not the Government's. David Lammy MP lays it out:

Brexit, Parliament, sovereignty and Article 50: The great paradox of our age. Those who wanted to regain sovereignty now argue against it. pic.twitter.com/fbAkcUwyW5
The idea of conforming to the will of the people, then, is a fig leaf for bigotry and tyranny, the rule of the strong over the weak. Whether you are for or against Brexit (full disclosure, I voted to Remain) the rule of law must not be discarded. The will of the people must be expressed via due process, not via populist knee-jerk-ery encouraged by irresponsible hate-mongering masquerading as journalism.

This is the divisive issue of our time


The Brexit brigade want out no matter what while the sceptics and Remainers want Parliament to have a say in the proceedings. Some of them want Parliament to block Brexit altogether, to be fair to the Brexit brigade. However, tinfoil-hat paranoia should not be permitted to trump sober debate. This is the kind of thing I've been seeing from the Brexit side, who haven't exactly been covering themselves with glory:
He's quoting from Rees-Mogg in The Telegraph. A purge. Stuffing the Lords to get their own way. Really?

The ignorance of the law on the Brexit side should not surprise anyone since all their arguments were based on FUD (fear, uncertainty, and doubt). What annoys me the most about them is their dismissal of the rule of law, which is the basis of all civilisation. I'm educating myself as much as I can on the legal ramifications to understand better how this will affect us as it plays out. A good source of information on the law regarding Brexit is David Allen Green, whose commentary has been invaluable in helping me to understand what's going on.

Rebellion is brewing


The sharp right turn by the Tories has caused Stephen Phillips QC MP to quit the party in disgust. Basically, the Government's refusal to include Parliament in Brexit deliberations is a cause of some considerable alarm in the ranks.This may allow Remain MPs to use delay tactics when negotiating the Brexit treaty to derail it, which some people are already interpreting as subverting the will of the people. This huge mess is, of course, down the the Tories enacting a referendum, promising they would deliver on the results thereof, but making no plan for what would happen if the people voted to exit the EU. All the frantic insistence that the will of the people is being subverted by Remainers is an attempt to distract us from that. Every bitter Brexiter who doesn't see the process moving forward has absolutely no idea of how the process is supposed to work, they just want it to work right now.

Conclusion


The takeaway from this huge mess is that the "individualists" in the Tory party and UKIP have colluded with the right wing press to create this shambles. They told the British people in the "explanatory leaflet" that the referendum vote would be honoured, they had only to vote yes or no. That was a lie; the referendum wasn't binding, the law can only be changed by an Act of Parliament. Per the court ruling, an Act of Parliament got us into Europe and it'll take an Act of Parliament to get us back out. This forces the negotiators to allow Parliamentary eyes on the negotiation process so it can approve and ratify the exit agreement when it has been concluded.

Brexiters need to get their tinfoil hats off and start looking up the applicable laws. If I can do it, so can they. The rule of law must trump all other considerations, otherwise all we've got is mob rule.
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