- 28th November 2016
- Posted by: Seatons Solicitors
- Category: Articles
The High Court of England and Wales ruled that parliament must be consulted before Prime Minister, Theresa May is able to invoke article 50 of the Lisbon treaty. As you may remember article 50 is the article which begins the UK’s exit from the European Union. There have been vast amounts of media speculation regarding the decision of the three high court judges which made this decision.
Brexit means Brexit
Many people are questioning the point of this ruling ‘Brexit means Brexit’ no? It is important to note that the referendum in June was merely an advisory vote. The government asked the UK population what they thought. There has been high criticism in the way that this vote was reported. It seems that the fact that this was an advisory vote was missed out, along with false promises made. It is quite right that many members of the public feel cheated. It only seems right that the procedure for leaving the EU, were to be correctly done. Whilst the absence of this ruling would save the taxpayer a lot of money, it can be said that not doing this would lead to a deficiency of justice and the future fallout could be much more ominous.
The decision does not mean that Brexit will not happen. All it means is that legislation must be passed before the Prime minister can invoke article 50 of the Lisbon Treaty. This means that the house of commons and the house of lords will both debate and vote on this matter.
Parliament & Government
It is important to note that there is a difference between Government and Parliament. Parliament is made up as the elected body known as the House of Commons and the unelected body known as the House of Lords. Government is made up of the ruling party. After a general election, the Queen invites the leader of the party with the majority of ‘seats’ in the house of commons to form a government.
Is that it?
However, this is not the end! The high court is not the highest court of the land. The highest court in the UK is known as the Supreme Court. The high court gave the UK government the right to appeal the decision that it made. This means that the case will be heard by the Supreme court in December. Then, to confuse everyone even further, potentially, the Supreme court could allow the Government to appeal to the European Court of Justice (Ironically).
What the courts are deciding, isn’t whether Brexit would happen, but instead if Theresa May can invoke article 50 and inform the European Union that the UK is leaving without consulting parliament. The government have said that they can do this because of an ancient prerogative known as the royal prerogative.
This is an ancient parliamentary theory dating from medieval times. It states that ministers acting in the queen’s name to bypass parliament. There are instances where it has been allowed, examples include the royal pardon of Alan Turing.
In the past, disputes over the powers of the monarchy led to the downfall of kings in the real-life Game of Thrones, paving the way for the 1689 Bill of Rights, followed by further reforms and the establishment of a constitutional monarchy.
It is against that background that opponents to the use of the royal prerogative in Brexit described it as “a relic of a past age”, derived from ancient rights and privileges, wrongly being used to by-pass Parliament in modern times.
The 1689 Bill of Rights states that the Royal Prerogative cannot be used in circumstances where its exercise would ‘suspend’ or ‘dispense’ statutory law. This, in essence, means that, because the European Communities act of 1972 is written into law. By bypassing parliament, the invoking of article 50 would lead to the suspension or dispense of the stature which has been written into UK law.
There is a suggestion that the act of invoking article 50 does not directly affect the legislature of the European Communities act. This is the argument that will be put forward by the government in the Supreme court in December.
In Recent days, the Brexit Secretary (yes a real job!) has stated that legislation could be passed through parliament within the next days, prior to the Supreme court judgement. Hooray for the taxpayer, this would save vast sums of money as there would be no supreme court battle.
The issues with the government rushing legislation through parliament are as follows: Jeremy Corbyn has stated that unless the government can guarantee access to the single market he would tell his party to block the legislation. This is an issue foremost because it would be near impossible to achieve that guarantee from the European parliament before December, secondly because Jean Claude-Junker has stated that no deals can be made between the UK and the European union prior to the invoking of article 50.
This has put parliament, the judiciary and the government all in very difficult positions. This vote was always known as an advisory vote and as such parliament was not bound to act. However, not taking action would be seen as parliament ignoring the will of the people. In other words, it would be political suicide to not invoke article 50. However, because of the closeness of the vote, the financial fallout, and the potential uncertainty associated with invoking article 50. Either way 15-20 million voters in the UK will be disappointed with the outcome. As the government, must be seen to be following the will of the people, either way they will not be following the will of the people and there will be difficult times ahead.
A further issue is that Nick Clegg (the ex-leader of the Liberal-Democrats) has publicly stated that him and the Liberal Democrat Peers in the House of Lords (there are lots!) will reject any Brexit bill which may come through. An issue surrounding the House of Lords for the past few years is that they are an un-elected body of people who govern over the UK. One of the key issues surrounding the June election is the dislike of our country being governed by unelected bodies of people. So, if the House of Lords are the ones who reject the ‘Brexit Bill’ then there will likely be uproar as to the role of the Lords and their position in modern society. However, Lords are appointed to help make and shape the UK law, they are seen as protectors of the people and are a barrier preventing the Government from doing what they want. And so, if the house of Lords were to allow Brexit then they will be letting down 16,141,241 people and can this really be representing the will of the people?
The decision is one of the most difficult one faced by the Judiciary, Parliament and indeed the Government has faced in modern times, and whatever the result it is impossible to know the outcome, one thing is for sure; the constitution and the way the UK is run will never be the same again.
I hope you enjoyed reading what we deem to be an impartial view on current affairs and we hope that we have clarified a fair few things for you! Here at Seatons we know the importance of fully understanding the ‘ins and outs’ of your case. We are the friendly professionals and we eliminate the legal jargon and aim to get you the result you need. Whatever your legal matter, don’t hesitate to call us for a free, no obligation chat over the phone where one of our experts will assess your case and advise you on the next steps you should take.