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:
- Parliament is sovereign. The government has no power to alter the law of the land. It cannot override legislation enacted by parliament.
- With the European Communities Act in 1972, parliament conferred certain rights on British citizens.
- These rights can only be repealed by parliament
- Article 50, which would begin the process of taking UK out of the EU, is irreversible. Once triggered it cannot be stopped.
- Therefore by triggering Article 50, the government would be depriving British people of rights granted by parliament – in effect, undoing the 1972 act.
- 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.