This article was first published on The Commentator.
This week saw the most important British court case in the modern era. The Supreme Court decided parliament must vote on whether or not the Government can trigger Article 50. The ball is now firmly in the politicians’ court.
However, this judgment shouldn’t change very much. The majority of the Great British Public voted ‘Leave’ on June 23rd last year, and their decision must be respected, or there will be electoral repercussions.
An unprecedented 11 Justices of the SupremeCourt heard an appeal by the Government from the High Court on whether Article 50 could be triggered by a Government using royal prerogative powers. This was the first time all 11 Justices of the Supreme Court have heard a case together – proving its constitutional importance.
The royal prerogative to withdraw from international treaties is a power flowing from the Queen, and is used by the Government to conduct affairs without requiring Parliament’s approval. A royal prerogative in withdrawing from international treaties – such as the UK’s membership of the EU – is well established. It is important to note, however, a prerogative power cannot be used where Parliament has already passed domestic law which conflicts with its exercise.
The court case was fundamentally about whether Parliament passed domestic legislation which conflicted with the Government triggering Article 50. The reason for this uncertainty is twofold. Firstly, Parliament – when passing the Referendum Act – did not make the EU Referendum result automatically binding, and secondly, there is no mention of Article 50 requiring, or not requiring, a vote in domestic law.
After all, we should remember, David Cameron never wanted the UK to leave the EU in the first place, and didn’t believe the voters wanted to leave either.
In the end, the Supreme Court has decided, by a majority of 8-3, Parliament must vote on whether or not to trigger Article 50. Their logic is that in passing the European Communities Act 1972 – the legislation which incorporates EU law into domestic law – Parliament partially transferred law-making powers to the EU’s institutions.
Therefore, according to the majority’s logic, Parliament must expressly agree to the taking away of those law-making powers by the triggering of Article 50, in order to prevent a conflict between the royal prerogative and domestic law.
However, somewhat surprisingly, 3 Supreme Court judges actually disagreed with the majority’s view – Lords Reed, Carnwath and Hughes. The argument advanced by these 3 is that EU law – as incorporated by the European Communities Act – is conditional on the UK’s membership of the EU, and does not require the UK to be a member of the EU, therefore the exercise of the prerogative does not conflict with domestic law.
Although we are of course inclined to agree with their minority view, unfortunately, the decision by the majority of the Supreme Court is final.
The judgment was not all one-sided. The Court gave the cold shoulder to Sotland’s First Minister, Nicola Sturgeon, and the other Brexit blockers in the devolved legislatures. It decided unanimously, neither the Scottish Parliament, the Welsh Assembly nor the Northern Ireland Assembly has a veto on Article 50.
After the judgment was handed down, Brexit Secretary, David Davis, gave a statement to the House of Commons in which he called for the judgment (as well as the Referendum result) to be respected.
In the next few days, the Government will bring forward a short Bill triggering Article 50. Thankfully, this will almost certainly be passed. We can say this with a certain degree of confidence as we have already had a dry run of the vote. In December, Parliament voted on an amendment to a resolution – which was not binding – calling for Article 50 to be triggered by the end of March, which was passed by 461 votes to 89.
It is worth remembering that voters turned out in huge numbers in the EU Referendum – with more people voting ‘Leave’ than have voted for any political party in any previous General Election. David Cameron came back with a worthless renegotiation, and as a result the public voted ‘Leave’.
Some Remain-sympathising MPs in Parliament still don’t seem to understand the majority of the electorate voted ‘Leave’, and are still struggling to come to terms with the result. However, they also know their constituents will vote with their feet at the next General Election if they defy the will of the majority.
It appears those who wanted to use this court case to block Brexit have failed. We at Get Britain Out are delighted by this, and look forward to a time when these legal minutiae are long forgotten; a time when Britain will be out of the EU, and have democratic control over its laws once again.