Brexit and Parliamentary Sovereignty
One of the Leave Campaign’s arguments for Leaving the EU was to ensure that the House of Commons was the place where Britain’s fate was decided.
As far as I know Number 10 (or any minister’s office) is not part of the House of Commons.
I am, therefore, puzzled that some Leavers are up in arms about today’s High Court judgement that the House of Commons should have a vote before Article 50 is invoked.
The question before the court was:
… whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.
High Court of Justice, 3 November 2016, Paragraph 4, Judgement Approved by the court for handing down (Case Number CO/3809/2016 and CO/3281/2016 R (Miller) v Secretary of State for Exiting the European Union)
And the answer was:
… the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.
High Court of Justice, 3 November 2016, Paragraph 111, Judgement Approved by the court for handing down (Case Number CO/3809/2016 and CO/3281/2016 R (Miller) v Secretary of State for Exiting the European Union)
That is, the High Court has said that Parliamentary Sovereignty trumps the power of a mere Minister of the Crown.
Yet the reaction has been like this one:
A lot of people… will be shocked to see a very small group of people go to court and effectively seek the form of redress, which could end up scuppering a referendum.
Dominic Raab (Conservative MP) quoted on BBC News Website, 3 November 2016 | Could High Court ruling on Article 50 scupper Brexit?
The Leavers were concerned to restore (UK) Parliamentary Sovereignty; that is what the High Court has given all of us.
The Sovereignty Issue was always a bit fake; the EU did not take away our sovereignty, we could always get it back by leaving. Joining any organisation means agreeing to its rules; doing so is not giving up sovereignty (as long as you can leave).
Now Parliament must vote before Article 50 is invoked. The Brexiteers cannot wish away Parliamentary Sovereignty just because it would be convenient to do so. All parties at the High Court agreed that:
(1) a notice under Article 50(2) cannot be withdrawn, once it is given; and (2) Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50(2).
High Court of Justice, 3 November 2016, Paragraph 10, Judgement Approved by the court for handing down (Case Number CO/3809/2016 and CO/3281/2016 R (Miller) v Secretary of State for Exiting the European Union)
So we need to be pretty clear what we are after before invoking Article 50, because afterwards, the UK Parliament can do nothing about it.
But we know what we are after; “52% voted to leave the EU” (in a non-binding advisory referendum – see paragraphs 105 to 107 of the judgement)!
But did those 52% vote for the hardest of all Brexits? A complete severance of all ties? Clearly not (although I suspect that Dr Liam Fox would not be too concerned by such an outcome). Once we have accounted for withdrawal from the main EU institutions (The EU Parliament, The European Council, The Commission, and the European Court (CJEU) – which is not the same as the European Court for Human Rights (ECHR) which is a continental European Institution not an EU European Institution), we are left with deciding what we want.
The referendum did not ask that sort of level of question. In a representative democracy where “Parliament is Sovereign”, the detail has to be sorted out and agreed by Parliament.
- Will we agree to Free Movement of People in return for access to (rather than membership of) the single market?
- Will we agree to make contributions to the EU in return for access to the single market?
- Will we agree to some EU regulations in return for access to the single market (single market, single set of rules)?
Do we leave these questions to be resolved by the Brexiteers and will a majority be happy with whatever they manage to negotiate? Irrevocably, Unconditionally?
Thank goodness the High Court has said that parliament should have a say.