Brexit, law and politics, and nonsense

Flags of the EU member states outside the European Parliament in Strasbourg © Gavin Drake

Flags of the EU member states outside the European Parliament in Strasbourg
© Gavin Drake

Much has been said about yesterday’s High Court judgement about the mechanism that the government must use to trigger Article 50. Much of it is nonsense, both legally and politically.

The saddest part of the judgment, for me, is paragraph 105. In it, the Lord Chief Justice, Lord Thomas of Cwmgiedd, says that counsel for the Secretary of State did not argue that the Referendum Act 2015 provided the statutory power for the Crown to act. “He is right not to do so,” the judgment said. “Any argument to that effect would have been untenable as a matter of statutory interpretation of the [Act]”.

Why is this sad? Because it says that the referendum was pointless. There has been lots of talk about referendums in the UK being advisory. I have seen little law put forward to defend such a view.

Even in the judgment, very little law is advanced to defend this view. It says that the Act “falls to be interpreted in light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the United Kingdom” – but it does not unpack what those basic constitutional principles are (it didn’t need to, because the point wasn’t argued).

It goes onto say that these principles “lead to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act.”

This is a very unsatisfactory state of affairs. If a referendum is only advisory then we should never hold a referendum again on any topic. They are an expensive waste of time and effort. There is no point in politicians passing the decision to the public if, in doing so, the public do not actually have the power to make such a decision.

In terms of statutory interpretation, the judges need to look up the definition of the word “referendum” and then section 1(1) of the Act which states “A referendum is to be held on whether the United Kingdom should remain a member of the European Union.”

What else is there to interpret?

In their judgment, the judges go on to say that “the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only.” I’m not aware that parliamentary briefing papers have any effect in law. What usually happens, as I understand it, is that judges refer to Hansard debates when interpreting Acts of Parliament to determine what Parliament intended.

On 9 June 2015, the then-Foreign Secretary, Philip Hammond, moved the Bill’s Second Reading. He opened the debate with these words: “This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.”

Yet in this week’s judgment, the judges say that “Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

This is a confusing conclusion. Yes, there are “many important questions relating to the legal implementation of withdrawal” but the UK Parliament cannot resolve these by itself. They have to be resolved by negotiation with the 27 other Member States of the European Union. And those negotiations cannot begin until Article 50 is triggered.

The judgment was not about whether the UK should leave the EU, or on what basis the UK and EU should part company. It was about whether Article 50 could be triggered without a Parliamentary vote. In my view, having passed the Referendum Act, parliament had its say; and then the people had our say.

We may not like the result of the referendum. We may be delighted with the referendum. But we can’t be confused about the result of the referendum.

But we have the judgment, and this is where the nonsense begins.

One of the most common arguments put forward for a Parliamentary vote is that the Crown cannot repeal the European Communities Act 1972 without primary legislation. I agree. But the 1972 Act does not need to be repealed before Article 50 is triggered. The 1972 Act – which is the law that applies EU law to the UK – would only need to be repealed at the end of the process; not at the start. It must be remembered that Article 50 is merely the trigger for the start of the process of negotiation. Triggering Article 50 by itself does not take the UK out of the EU.

More nonsense relates to comments that yesterday’s judgment was so clear that an appeal would be pointless. Such people clearly do not follow legal cases very often because the Appeal Court (which is being leapfrogged in this case) sometimes agrees with the High Court and sometimes it disagrees. Likewise, the Supreme Court sometimes agrees with the High Court and disagrees with the Appeal Court, or vice versa. Sometimes the High Court and Court of Appeal are in agreement but the Supreme Court comes to a different view. That is the way the law works.

Such comments also ignore the fact that while the High Court of England and Wales said that a Parliamentary vote was required before Article 50 could be triggered; the High Court of Northern Ireland came to a different view (there are separate legal systems in England and Wales, Northern Ireland, and Scotland).

The people behind the legal challenge said that their case was not about trying to overturn the referendum decision; but about ensuring due process was followed. Nonsense. If all they want is a vote in Parliament to confirm the referendum result they would not spend thousands of pounds on the legal action. They want a parliamentary vote because they hope that MPs will come to a different view.

They should be honest about it. If they genuinely are concerned about the sovereignty of Parliament, why have they not challenged the vast number of Bills that become Acts of Parliament without proper parliamentary scrutiny – the Bills that are passed because of the use of guillotines and programme motions – leading to vast swathes of bad law that do not do what they were intended to do. No. Their statements are nonsense. They want to prevent Brexit and that is why they initiated the legal claim.

Other nonsense includes the laughed claims of “irony” that the case could be appealed to the European Court of Justice. It can’t. The European Court of Justice rules on EU law. The question in the present case is a matter of UK law – an interpretation of the United Kingdom’s constitution. EU law doesn’t come into it so there is no role for the ECJ.

It would be a different matter if people suggested that the European Court of Human Rights might have a view. Article 3 of the European Convention on Human Rights guarantees the right to free and fair elections. It would be interesting to see whether this can be applied to referendums and whether the ECtHR would take a view if a parliament overturned the will of the people clearly expressed in a lawful referendum.

More nonsense: It has been reported that in any pre-Article 50 vote in Parliament, the House of Lords could ensure that we have a “soft Brexit” or could put conditions on Brexit. No. It can’t. Once Article 50 is triggered, a two-year period of negotiations begins. It is that, and that alone, that will determine what type of Brexit we have.

But talks of “soft Brexit” and “hard Brexit” are meaningless. There is only Brexit. You are either in the EU or you are out of the EU. Yes, there are lots of questions about our future relationship with the EU – and I want a strong relationship. But that is a separate question about the type of Brexit we have – there is only one type of Brexit available. It’s called Brexit.

The government are right to appeal this week’s judgment. But they are doing it for the wrong reasons. There needs to be a clear understanding that when the British people are asked to vote in a referendum; then that referendum is binding. Otherwise, what is the point?

But the government are wrong to be secretive about how they intend to conduct negotiations. We are in this mess because David Cameron adopted a similar secret approach to his negotiations to secure a “new deal” for the UK ahead of the referendum.

He didn’t know what he wanted, and neither did we. More important, he didn’t know what we wanted. But neither did Europe. He came back from Europe saying he got the best deal that he could achieve. The view on the other side of the Channel was more nuanced: he got everything that he asked for. But the effect of the “new deal” was nothing that couldn’t otherwise be achieved under existing EU law. Some anti-EU voices demanded Treaty change. The EU officialdom said that there would be no treaty change – it wasn’t necessary to deliver the “new deal” because it was all available under existing EU law.

We run the same risk now with politicians and civil servants going in to bat without a clear mandate from the British people. They are not negotiating for the government; they are negotiating for us. Unfortunately, this is how it has always been – we are never consulted on international agreements. But we are usually told what those negotiations are and what the government hopes to achieve. Once the negotiations begin, we will hear what the UK is asking for – because the 27 other governments will be more open and transparent.

Arguments about not showing our hand are disingenuous. We are not negotiating with enemies. We are negotiating with existing partners who will continue to be our partners after Brexit. Openness and transparency can only help the process.

But this brings me to the biggest piece of nonsense: there are calls, suggestions, and hints of a snap general election. You could be mistaken for thinking that politicians, political journalists and political pundits do not pay much attention to politics. The Prime Minister no longer has the power to call a snap general election. Under the Fixed Term Parliaments Act, the next General Election will be held on Thursday 7 May 2020.

There are ways that this can be circumvented; but it would be for Parliament as a whole to determine; rather than the Prime Minister (a vote passed by two-thirds of MPs would be needed). This is unlikely (but not impossible).

But there is a very good reason why this would be a very bad deal: After the referendum, the Prime Minister David Cameron resigned, leading to a period of instability (thankfully, brief) while the Conservatives conducted their leadership election. This was followed by Labour’s bitter and damaging leadership election. A general election would lead to further instability.

The people have decided. We need to get on with it. Once we know what our future relationship with Europe is, the sooner we can make it work.

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