The High Court’s ruling means a better Brexit

The High Court has ruled that the government cannot trigger Article 50 to start the process of leaving the EU without an act of parliament. Unless and until the Supreme Court overturns that decision, that is now the law.

The row that erupted afterwards drowned out sensible discussion as hysterical Leave voters screamed about unelected judges overturning democracy. I had the luxury of a long train journey during which to watch the gathering storm. As a general rule, the more noise people made, the less likely they were to have actually read the judgement, or even the useful two-page summary provided with it.

The judgment and summary are both here. I will try to pare it down even further, as much for my own understanding as anyone else’s. Essentially, the logic went like this:

  1. Parliament is sovereign. The government has no power to alter the law of the land. It cannot override legislation enacted by parliament.
  2. With the European Communities Act in 1972, parliament conferred certain rights on British citizens.
  3. These rights can only be repealed by parliament
  4. Article 50, which would begin the process of taking UK out of the EU, is irreversible. Once triggered it cannot be stopped.
  5. Therefore by triggering Article 50, the government would be depriving British people of rights granted by parliament – in effect, undoing the 1972 act.
  6. Article 50 cannot, therefore, be triggered without parliament’s consent.

That’s it. Whatever the hysterical newspapers and their echo chambers on social media might say, the court hasn’t overturned the result of the referendum and it hasn’t stopped the UK from leaving the EU. All it has said is that the government doesn’t have the authority to take this country out of the EU. That is something only parliament can do.

It is true that parliament approved the referendum but there is nothing in the 2015 Referendum Act that allows the government the right to trigger Article 50. The High Court said the referendum can only be advisory unless very clear language to the contrary is used. No such language was used in the 2015 act. Furthermore, a clear briefing paper for MPs clearly stated that the referendum would only be advisory. Those who claim that parliament has already voted on Brexit are therefore simply wrong.

Even sillier is the argument that the government promised in its referendum leaflet that it would implement whatever the voters decided. According to the Daily Mail, John Redwood said:

I cannot believe the judges failed to read the leaflet. Parliament was passing the decision to the people.

Of course, DPhil and Fellow of All Souls, Mr Redwood, knows full well that the judges will have read the referendum leaflet and that it is entirely irrelevant. The court’s ruling, in effect, says that the government had no right to make such a promise. This wouldn’t be the first time that government ministers have over-reached themselves. Fortunately we have a parliament and judiciary to rein them in when they go to far. Which is exactly what happened on Thursday.

Far from being a blow to democracy or a constitutional crisis, Thursday’s ruling shows the UK’s political system working at its best. Politicians here cannot claim that a majority vote gives them the right to do what they like. Parliament is sovereign. The courts can tell the government when it has exceeded its authority and needs to go back to parliament if it wants to go any further. They do so quite often. This tends to provoke angry headlines in some newspapers. It was inevitable that there would be an aggressive response to Thursday’s ruling from certain sections of the British press. As David Allen Green said, the outrage of media moguls is also a sign that the constitution is working.

The case will now go to the Supreme Court, probably sometime next month. It may yet overturn the High Court’s decision. If the decision stands, though, we will get a much better Brexit. A parliamentary vote means a longer and more considered process. A lot of people won’t like that, including some of our EU partners, but this is not a decision we should be rushing into. It will be a tremendous upheaval. Over more than two decades, we have built an economy on the assumption of free movement of goods, capital, services and people. We can’t dismantle that without serious disruption to trade and economic activity. How we do Brexit and how we design what comes afterwards will set the tone for this country for decades to come. The scrutiny of parliament will help us to avoid making too many decisions that future generations might regret. This is a job for wise heads not hotheads.

The requirement for a parliamentary bill may well delay the triggering of Article 50 being 31 March. This too will be a good thing. The French and German governments will not be in any position to negotiate until after their elections so nothing will happen until the autumn of next year. Starting a two-year clock running on 31 March would therefore lose a quarter of the negotiating time. Much better to leave it until the end of next year. What’s an extra six months when the consequences of these negotiations will be felt for generations.

The High Court’s ruling  will also ensure that the people are represented in the decisions about what post Brexit Britain will look like. So far, the only mandate the government has is that on 23 June, a majority of those who turned up to vote wanted to leave the EU. That’s not very much on which to base a strategy for the country’s future. We don’t even know what people think about remaining in the single market. For example, there is an assumption that the referendum was a vote against immigration but some polls suggest that curbing free movement is not as popular as the government might think. Given that the Will of the People is so vague, and that having referendums on the many aspects of Brexit is impractical, surely involving the people’s elected representatives in the design of post-Brexit Britain is the only democratic way forward.

It is unlikely that this ruling will stop Brexit. MPs will be very reluctant to overturn a democratic vote. It will, though, ensure that we get a better and more democratic Brexit.  Parliament took us into the EU and it’s up to parliament to take us out. That way, we are far more likely to end up with a favourable settlement than if we simply left it up to the government.

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18 Responses to The High Court’s ruling means a better Brexit

  1. If only BBC radio was as informative instead of allowing its talk shows to proceed on the premise that the Article 50 judgement usurps democracy. The BBC does nothing to dispel this myth when angry callers call in to berate unelected judges for frustrating the “will of the people”. Instead, the radio show host encourages callers to argue with each other about this erroneous and conspiratorial interpretation of the Article 50 court case.

    The BBC’s mission is to educate, inform, and entertain. I fear the BBC is failing in its obligation to inform so that it can broadcast these angry talk shows as entertainment in place of informing the public. This is a most egregious and dangerous failing for a public broadcaster I reckon. History tells us that very bad things can happen when lies and conspirancies are allowed to flourish unchecked. The BBC, I reckon, should be playing an active role in preventing such a potential disaster.

    Anyway, that’s my rant over. A good piece Rick.

  2. Dipper says:

    As a Leaver I agree with all this. I think many Leavers are concerned that the Lords in particular will use this to stop Brexit, but the referendum was in the manifesto so the Lords should restrict their activities to “improving” it. Any attempt to prevent Brexit will be ultimately self defeating as it will be the Lords itself that is diminished. And ultimately a Brexit not approved by Parliament will never be accepted by many, whereas a Brexit debated and approved by Parliament will be unchallengeable.

    As to who is to blame for all this there is a clear culprit. It isn’t the judges. If you find yourself attacking judges be it Brexit or Ched Evans then generally you are in the wrong as in nearly all cases their arguments show the judges have impartially implemented the law. Attacking the Plaintiffs on this occasion is equally absurd as if the law requires parliament to vote on Article 50 then they were right to bring the case. The culprit is parliament in general and Cameron in particular for passing a bill introducing a referendum saying they would act on the result without checking that the law enabled them to make that promise. The reason they didn’t do this is because they didn’t think the nation would vote to Leave.

    Parliamentary democracy by its nature is messy and noisy. The cacophony of outrage on all sides and blood on the political carpets since the vote are all signs of issues and people being properly stress-tested. Everything is continuing to go well.

    • xexyz says:

      I agree with most of what you say – apart from the bit about being a leaver! – but one slight correction I think. You say that “[t]he culprit is parliament in general and Cameron in particular for passing a bill introducing a referendum saying they would act on the result” – but parliament did no such thing. It was made very clear to parliament that the referendum would be advisory only and nonbinding; there are briefing papers setting this out very clearly. The fault lies with the government for not making this clear to the population at large.

  3. Sarah Harvey says:

    The most sensible and balanced piece of writing I have read for a very long time! Thanks Steve

  4. Dipper says:

    just a bit more.

    There’s an organisation called Lawyers for Britain who have commented on this, and they state

    “There has a been a long string of attempted challenges to the use of the prerogative power to extend EEC or EU powers, all of which have been rejected by the courts, sometimes in peremptory terms. However, when the prerogative is used to achieve “less Europe” in order to implement the decision of the British people which an Act of Parliament empowered them to take, it is suddenly found that there are implied limitations on the prerogative power which prevent it being used for this purpose.”

    and that seems a fair comment. They give reasons why the referendum is legally binding here http://www.lawyersforbritain.org/referendum-binding.shtml

    And for those who didn’t hear the Today programme yesterday there’s this extraordinary performance by The Guardian’s Michael White from about 10 minutes in http://www.bbc.co.uk/programmes/b080pxzb

    It is sadly not unique in showing us someone who has spent a career giving reasonable liberal opinions and when something they hold dear is rejected by the British people reveals a really unpleasant vindictive and insulting side to their personality. I for one will never listen to him again without thinking of this.

  5. You seem to assume that May and her little friends want to deliberately choose the worst kind of Brexit (whatever that is) and that only wise MPs can and will stop them. Frankly, they are all idiots and the prospect of pro-EU MPs deliberately dithering and messing things up does not fill me with great hope. Even worse, Labour will make themselves so unpopular that we end up with a Tory government for the next 20 years.

    • Person_XYZ says:

      Let me guess, you would have claimed prior to the referendum that you wanted Britain to be sovereign, and wanted our parliament to make law without interference from the EU?

  6. liminalt says:

    Nice to read a clear and concise explanation without any histrionics!

  7. Dipper says:

    Disappointing lack of comments on an excellent post, so …

    Firstly I note that lots of legal Remainer people now seem to be calling for the Freedom of the Press to be curtailed. Anyone wish to speak up for outlawing criticism of judges here? How come its alright to blast the judge in the Ched Evans case but not the judges in this case?

    Secondly just to share some local misery. The local development plan is out for my section of the home counties. Needless to say its involves expanding every local village and town into the neighbouring countryside, gridlocking every road and overloading every local service. Major employers here are pulling in lots of people from the EU (and elsewhere) and this is some, but not all, of the demand for housing. I’m sure there are some “experts” out there who can produce some stats showing this all makes me better off, but they aren’t sat in the traffic jams or trying to get an appointment in the local GP’s surgery.

    • Person_XYZ says:

      It is fine to criticise the judgement and express disappointment with the outcome (though logic and facts would be useful tools in doing so), but what the Daily Mail did was appalling. It was vitrioloc. To hell with freedom of the press if it means Naziesque abuse. As to your last paragraph, you should be happy you live in an area of high economic growth. Local services ought to expand to meet the population growth, and if they do not it is because of choices made by the UK government.

  8. John Wade says:

    I agree with the Uxbridge Graduate. The most articulate piece I’ve read yet on the Lords’ judgement. Thank you Rick. When you write the clouds part and light shines through.

  9. Gary says:

    Sure it probably is the correct decision. But any review of this fiasco has to acknowledge that the core objection is that the case was raised in bad faith. The political classes types do not approve of this decision because they so firmly believe in the sovereignty of the UK parliament; the last 20 years tells us that aint so. Rather it is because their express stated strategy is to delay proceedings in the hope that something will turn up and we can wriggle out of Brexit.
    It is very reasonable to object to this decision purely on the grounds that the intent behind the action was in bad faith.

    • Keith says:

      The Eu Plebiscite was called in bad faith to start with by the former Tory leader and his MR Austerity dimwit chancellor. All to avoid splitting the hard right dimwit vote so they could win another term to immiserate the poor still more. The sooner the Parliament finds a way to extricate the nation from this farce the better.

      • Gary Taylor says:

        Your blatant snobbery and disrespect for your fellow citizens is exactly the bullying thought policing that created ukip, brexit and Trump (by extension).
        Own your own consequences.

        • Kevin says:

          I’m not sure I agree with you Gary. David Cameron originally called the vote to settle a problem within the Conservative Party (and to get himself elected leader). The general public were not asking for a referendum. Cameron created a problem for the State to solve a problem for the Party. On that basis, its in bad faith. We now have to deal with the consequences of the vote – a divided country and the dissolution of our most important Treaty with our 27 nearest neighbours at a time when our most important defence alliance, NATO, is under threat from the President-elect of the US. If ever there was a time for sober judgement and not party politics, this is it, whatever we decide to do.

  10. Kevin says:

    The problem of how we reconcile the two sides (Remain and Leave) is the biggest challenge facing this country. It could be a vastly greater challenge than economic upheaval or changes to immigration patterns. The referendum campaign (on both sides) has been generally acknowledged to have been very poor, with both sides replacing sober assessment with sophistry. Theresa May has further compounded the problem in the opening months of her administration. Perhaps the reflections of both Parliament and some of our best legal minds can go some way to improving the situation. I voted Remain; I fail to see how a damaged economy can be in anyone’s best interests. But if after some reflection, we decide as a Nation that being less well off is a price worth paying for lower immigration, then I would accept the result. What is not acceptable is a backroom plan secretly hatched by a group of ministers in whom I have little or no confidence and then foisted on the country. We should all remember that immigration is a two way thing, that the English are enthusiastic emigres and that many of that the demographic that voted Remain is a large part of our tax base.

  11. Brendan says:

    I find it difficult to comprehend how anyone can argue MPs should vote before knowing the deal on the table for leaving.

    Setting aside all discussion of how much we disentangle ourselves from Europe, there will be costs associated to leaving the EU. They may be small, or they may be large. They really won’t be known for some time, but they can be estimated – but the biggest unknown factor by far will be the outcome of negotiations with Europe.

    A small majority to leave cannot possibly be a mandate to leave the EU at -any- cost. So surely this is where our MPs – our representatives in Parliament – should step in and decide if that cost is too high?

  12. gunnerbear says:

    “Some polls suggest….”

    Err, how accurate were those polls prior to BREXIT (or even the election of Donald Trump). Immigration is the key issue for a vast chunk of voters…..especially those at the bottom of the pile.

    I wonder if that is what is really sticking in the throats of those that inhabit ‘white collar Guardian-Land’….the fact that blue collar workers gave immigration and free trade the finger…and in essence said to the Guardian liberal types, “…you’re views have never been welcome but now you’ve got to listen to us…”

    I can just see Jocasta and Toby crying into their free trade coffees complaining that the voters who voted for BREXIT are all so ‘ignorant and racist and sooooooooo horrid….’.

    The tears of the snowflake liberals….almost good enough to wash the floors with.

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