Dear Editor,
On January 24 the Supreme Court of the United Kingdom upheld an earlier decision of the High Court, that Prime Minister Theresa May cannot invoke Article 50 of the Lisbon Treaty, to commence formal withdrawal from the European Union (EU), without the consent of the Parliament. This ruling dismissed the government’s contention that they could rely on the Royal Prerogative as a sufficient legal condition to trigger Article 50.
Quite apart from vindicating the claim of the Plaintiff Gina Miller in this case, the Supreme Court’s decision has done other important things. It demonstrates that the separation of powers and the right of intervention by independent judiciaries in particular, are essential bulwarks against tyranny.
It also shows that there must be restraints on the exercise of executive power, especially in circumstances where the entire population will bear the consequences of major policy decisions.
Immediately following the ruling Brexit Secretary David Davies claimed in Parliament that the Supreme Court’s ruling does not stop the triggering of Article 50. He is right; however, the ruling was never intended to prevent the triggering of Article 50.
He further claimed that the decision to leave the EU was taken on June 23, 2016 by the people. The people made two decisions: a majority, 52 per cent, agreed to leave while 48 per cent wanted to remain in the EU. Miller’s petition to the High Court was effectively on behalf of the 48 per cent.
Secretary Davies went on to assert that a small number of people in Parliament were seeking to thwart the will of the people. And yet this is precisely what Secretary Davies and his colleagues were attempting to do before the court stepped in. The attempt to selectively invoke the Royal Prerogative was meant to circumvent Parliament and as a result ignore the fears, concerns and interests of 48 per cent of the population.
He further claimed that the court only required that Parliament should consent to Article 50 of the Lisbon Treaty.
The implication of this claim is that the opponents of Brexit cannot force the government to alter the content of its demands from and concessions to the EU, and as a consequence its plan for a hard Brexit landing. This was precisely the purpose of Gina Miller’s petition, which went beyond mere notification of the Parliament of the triggering of Article 50.
The purpose includes empowering the opposing 48 per cent of the population to inform the substance of a Brexit landing, between the two possible extremes of no Brexit and a hard landing.
While the core issues behind the 2016 Brexit referendum broadly spoke to sovereignty of the UK and immigration, voters did not determine what this meant in terms of the scope of future engagement with the EU. An Article 50 Bill, which the court now requires the government to present in Parliament for approval, means therefore that there would be, at some point, a full debate on critical questions.
For example, would there be zero free movement of other EU citizens into the UK or selected free movement, and was the referendum intended to result in one hundred per cent exit from the EU Single Market or partial exit?
There is no question, Brexit will reduce or eliminate many ‘rights’ which are currently enjoyed by British citizens in the EU. So while the initial Article 50 Bill will likely pass with a majority the devil is in the details.
The question will be which rights will be affected and what will be the impact on those affected? What are the implications for each sector of the British economy, for investors, for British-EU supply chains, for British citizens whose livelihoods are currently based on their physical presence in other EU states? This and other questions are now more likely to be ventilated, compared to if the Royal Prerogative were used to trigger Article 50.
Prime Minister Theresa May’s administration was attempting to run away from this debate, since such a debate will expose the full costs and other impacts of Brexit.
The Supreme Court said no; first, confess before the Parliament.
Yours faithfully,
Ivor Carryl
