Phew! Thank goodness for the High Court ruling

Today’s High Court ruling is quite a relief.

Up until now, the government’s approach to Article 50 has been rather like that of a load of drunks in a speeding train carriage, intent on pulling the emergency cord to jump off the train in the middle of nowhere.

To embark on Article 50 without parliamentary consensus, and with a confused government position, would have been disastrous for this country’s interests.

The High Court ruling is based on the key constitutional principle that parliament only decides UK domestic law. By invoking Article 50 via royal prerogative, the government would have been ending all the rights for British citizens inherent in the 1972 European Communities Act.

That is not pedantic hair-splitting. It is big stuff. The sort of stuff which, in the past, led to a king losing his head and the country being riven by a bloody civil war.

But it really is key not to see this in terms of a parliamentary attempt to thwart the will of the people as expressed on June 23rd. I believe that decision will be respected by parliament.

The majority voted to leave the EU. But there was no detail in that advisory referendum as to the when and the how. That is where parliament comes in, to use its skills as our representatives to put the UK on the road to getting the best deal and the best route forward.

And thank goodness for that. The government have given confused and dangerous signals about how it intends to proceed with Brexit.

Parliament needs to be involved to ensure that when we get off the EU train, we have a platform to step out onto.

* Paul Walter is a Liberal Democrat activist. He is one of the Liberal Democrat Voice team. He blogs at Liberal Burblings.

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41 Comments

  • Parliament returned this decision to the electorate.

    The electorate decided.

    The government of the day want to act in that decision.

    Why do Parliament need to be consulted – given that they defered the decision to a referendum?

  • Charles Rothwell 3rd Nov '16 - 3:33pm

    This justifies 100% what the majority of speakers said in the motion about Europe at the Brighton Autumn Conference and what Tim and Nick Clegg have been saying consistently at every opportunity since then. It must provide fantastic ammunition for canvassing for Richmond Park and also shows up just how disgracefully, shamefully and woefully inadequate both the SNP and, in particular, Labour are in representing the vaguest form of opposition in this vital question. If Labour had any sense of moral fibre, it would follow the lead Caroline Lucas has suggested for the Greens and stand down from having any candidate to fight the Richmond seat and allow the Remain supporters to have the same unity as Kipper-backed Goldsmith can draw on on his side.

  • Bryan

    “The electorate decided”

    And exactly what did they decide? Leaving the EU sounds simple but actually timing, new arrangements etc. were all left open. That requires a careful approach.

    Even if it was simple, the UK constitution functions on the basis of parliamentary sovereignty. We are members on the basis of Acts of parliament, the act to create the referendum could have bee worded to take effect on the vote it was specifically not done that way. The public voted to leave the EU not to give the PM the right to repak acts of parliament on only her own say so.

    Far a party that officially goes by the name “Conservative” the Tories are certainly keen to rip up all parliamentary constrains on executive power on a whim.

  • ethicsgradient 3rd Nov '16 - 4:26pm

    As a leaver, I accept the judicial decision and think the outcome is correct. Parliament needs to give its approval for article 50 to be invoked.

    Mp’s should abide by the result of the referendum and allow this to pass smoothly so that article 50 can be triggered. I think there would be mass protests and possible riots if Mp’s voted against the result of the referendum.

    I sincerely hope though that political games are not played y those who wish to delay or reverse the referendum result.

    I think it common sense that EU-UK negotiation details are held back as how can anyone negotiate anything if all their positions are already exposed.

    After triggering article 50, regular updates and discussion about the process should happen within parliament, but this should again not be used to try to disrupt the negotiations.

    I think it becomes more and more clear to me that because this parliament is out of step with the country on brexit, and therefore not representative a general election is needed, possibly before, certainly after article 50 is triggered but before fully negotiations have started.

  • Paul Walters

    “It was an advisory referendum, as opposed to one which was legally binding.”

    And the advice the government got was to get us out of the EU. There is a reason the Lib Dems are still at 8% in the polls and the Tories are 43%. They respect the wishes of the people and you guys don’t.

  • Eddie Sammon 3rd Nov '16 - 4:32pm

    It’s useful that you have brought up the English civil war, because I was going to bring up the French Revolution, the Irish War of Independence and the Northern Ireland Troubles. Basically, above all, it is the will of the people that matters, not strict legalism.

    As an example: in theory, Sinn Fein should have all been locked up when they declared the first Dáil Éireann in 1919 and started ignoring British laws. In practice, it was impossible.

    Using this theory of strict legalism, couldn’t we abolish the Scottish parliament and ignore their requests for independence? In reality, it would be impossible, so it’s not useful to speak about the UK parliament being supreme. It’s the people who are supreme.

  • ethicsgardiant,

    and were will these mythical MP’s come from who represent me and thee; pretty much nailed on for the majority of us it will be the same MP we have now, so unless they are changed your plan for a more representative parliament will fail, hence why have an election.

  • Bryan a referendum is consultative and advisory. No more. If there had been a referendum on Capital Punishment that may well succeed, would you expect Parliament to agree?
    Personally I will breathe a sigh of relief if the Sepreme Court uphold the decision which I would think they will. It is possible the Government will try and compromise before then.
    Just a thought, do the government really want to leave the EU, I think not, the Courts may provide them with a ready escape route from the “Clear” decision of the electorate, only 17m – 16m, (a 1.5% change would have sent it the other way).
    Malc: in your heart yopu know your 43 and 8% do not accurately reflect the current voting situation, nearly all elections over the past three months or so indicate it is more like 35% or less to 15%

  • Eddie,

    A united people may be successful in achieving their aims, but on the the last thing the UK people are in united. You may want Brexit but for everyone of you their is nearly as many one of me and I don’t. So humming a happy tune and asking me to join your happy crowd isn’t working and until you can come up with a plan rather than it will be all right on the night it won’t.

  • Matt (Bristol) 3rd Nov '16 - 4:40pm

    If the outcome of this (and it’s still under appeal, remember) is that a specific act of legislation is required to trigger A50 (rather than just a motion in the house of commons) then I predict the Lords stage of that Bill will be an almighty tussle.

    Can a true constitutional geek advise on whether the Salisbury convention would apply, since the referendum was in the government manifesto, but it could be argued that the consequences of it were not (who’s got the 2015 Tory manifesto somewhere to check)?

  • Eddie Sammon 3rd Nov '16 - 4:48pm

    Frankie, I don’t know if I would vote for article 50 if I was an MP, but what I’m trying to do is point out the flaws behind the “parliament is sovereign” argument when in reality there are fundamental rights that not even a sovereign parliament can touch.

  • Conor McGovern 3rd Nov '16 - 4:49pm

    This should give the government more legitimacy in beginning the process to leave. Why Theresa May refused to let Parliament invoke Article 50 is beyond me. Should they block Brexit everything’s up in the air.

  • ethicsgradient 3rd Nov '16 - 4:50pm

    @Frankie,

    I am not so sure this would be the case. The dominating issue of any new election would be brexit. Throughout the old labour heartlands who voted 60-70% out, any labour mps running on a platform of anti-brexit/anti -article 50 would be voted out. Added to this, with Corbyn as leader, labour are going to be devastated anyhow, handing a significant majority to Theresa May and the tories. add in probable unkip mps and the following parliament would be much more brexit-friendly and more aligned to passing though brexit than the current parliament.

    Lib dems would increase in seats ( as I have posted elsewhere) but the overall spectrum of a new parliament would be pro-brexit. Which in turn would hurt the remainers cause.

  • Making MP’s vote for Brexit (and the majority will) actually holds them to account; there will be no I didn’t really agree (your record says differently). They may vote against I hear you cry but even if they vote against Mrs May can hold an election (first having deselected the rebels) and be re-elected as the Brexit PM. If you have faith in your cause I really can’t see the argument about letting parliament have their say.

  • jedibeeftrix 3rd Nov '16 - 4:55pm

    Delighted with the result.

    I didn’t vote for parliamentary sovereignty only to discard it the first time it becomes inconvenient.

  • Malc

    “And the advice the government got was to get us out of the EU.”

    So the government should get on with drafting the required legislation and putting it to parliament? Instead they are attempting to interpret the referendum as a vote to abolish parliamentary sovereignty and empower the PM with ability to repeal legislation.

    She has three Secs of State who are focused on Brexit. If they can’t even draft one price of legislation and put it to parliament then they should call a GE on the basis they are to incompetent to do the job.

    If May tries to call a GE before trying to pass legislation the other parties can claim that her government is incapable of basic government functions and will therefore not be able to deliver anything let alone manage the Brexit challenges.

  • Eddie,

    I’m afraid there are no rights parliament can’t touch. You only have to look at what over the years they have voted to touch.

    https://en.wikipedia.org/wiki/Bloody_Code “Bloody Code” is a term used to refer to the system of crimes and punishments in England in the 18th and early 19th centuries. It was not referred to as such in its own time, but the name was given later owing to the sharply increased number of people given the death penalty

    Now I know this was centuries ago but if parliament is sovereign (and as we intend to remove the jurisdiction of the European Court) it is, they can if they can get enough MP’s and Lords to agree bring any law forward and the people don’t need to agree with it (remember the Poll tax for example).

  • Why Theresa May refused to let Parliament invoke Article 50 is beyond me. Should they block Brexit everything’s up in the air.

    By not allowing Parliament to make the decision, the executive are trying to make the UK and the government appear more united on Brexit than it really is.
    Additionally, it avoids some rather unpleasant truths, around the U-turn in official Conservative party policy, what the Whips are supposed to do (can’t see it being a free vote), MPs (and especially Conservative MP’s) having to out themselves and subject themselves to full public scrutiny (and in the case of Boris potential ridicule as he votes against invoking Article 50! )…

    If MP’s block Brexit, nothing is left up in the air, we are simply back to square one; with some loss of face, relationships to repair, some political careers left in tatters and UKIP et al having a reason to exist…

  • Interestingly enough we entered the First and Second World Wars on the Royal Prerogative…….. The House of Commons did then vote… but only on the matter of supply……. and in 1914 it was of course a Liberal Government.

  • Amazing to see EU supporters who for over 40 years have been in favor of subverting parliamentary sovereignty by the EU, suddenly discovering how vital it is for this country.

  • Barry Snelson 3rd Nov '16 - 6:21pm

    Roland,
    “we are simply back to square one; ” Sorry, but we will never get back to that. This is setting the halves of this country even more at each other’s throats.
    I didn’t vote leave but this will be seen, by a very large section of the population, no matter what the protestations and explanations, as the people on one side and the political ‘machine’ on the other.
    “But it really is key not to see this in terms of a parliamentary attempt to thwart the will of the people as expressed on June 23rd. ” No, the view out there is the exact opposite (at least for the 17 million).
    We are not building the national reconciliation I was hoping for but ever deeper and more bitter division.

  • Tony Dawson 3rd Nov '16 - 6:25pm

    Those of us who end up spending more time than we’d like to in courts and tribunals often discover to our cost (or sometimes the cost of our opponents) that some judges are over-promoted wallies who are stuck in a sinecure till they have a heart attack since there is virtually no quality control. Other judges, however, show not just a competence but an ability to express stuff in a manner which, while understated, can sometimes be pretty damning. It can be almost poetic. Lord Justice Sales is one such. When you read his judgment on this matter in full you have to ask yourself:

    “Who was the Attorney General who advised the government that they had a leg to stand on in this case and when can we get hold of his ‘advice’ (sic) and get it published? I suspect it makes Tony Bliar’s Iraq War advice appear competent.

  • Barry Snelson 3rd Nov '16 - 7:31pm

    Tony,
    I leave the legal niceties to m’learned friend, but what is at stake is the already threadbare respect the population have for their rulers. The numbers who are loudly proclaiming that they “of course respect the result of the Referendum” and then visibly move heaven and earth to thwart those who voted for it are just generating an antagonism that you can now feel out here.
    If parliamentarians really “respected” the vote they would have unanimously invoked Art 50 already.
    I am sure the 48% have valid opinions but 17 million are a lot to annoy and this is getting them very annoyed.
    I am a Remainer but I know many who voted Leave. They are intelligent fair minded people (at least those of my acquaintance) who hold a different view.
    My hope is that we can close these wounds before irreversible damage is done to our nation as a family.

  • There’s only one legal way of leaving the EU and that’s triggering Article 50, so unless wishing to negate the referendum there’s no role for parliament re Article 50.

  • @John – And it is amusing to see so many Brexit supporters who for over 40 years have been calling for Parliamentary sovereignty, suddenly wanting Parliament to not be sovereign…

    It does seem that the path to Brexit is going to be littered with many such contradictions…

    @Barry – Don’t disagree with you that depending on the final outcome differing groups will either be happy or upset with the result. However, if May has any sense or desire to be seen as being decisive then if she isn’t in a position to invoke Article 50 before the end of March 2017 she will bin Brexit, which effectively means Brexit reverts to being an election issue once again. It was in this respect, namely progress towards Brexit, I was referring to as being back to square one.

  • Matt (Bristol) 3rd Nov '16 - 8:48pm

    To repeat myself somewhat — I really can’t see a majority of the Commons voting against Article 50 unless May triggers a split in her own party by completely stuffing up the hard vs soft brexit issue (ie giving absolutely no indication that she has any inclination to even try to stay in the single market and thereby failing to conciliate the ex-Cameroons).

    Remember, A50 is the start of negotiations; even if the MPs try to confine May’s terms of reference, I’m not sure she is obliged to stick to them if the EU won’t come to terms.

    The only other possible problem – from her point of view – would be if there was a significant groundswell behind a movement to amend any Article 50 legislation to put in place a referendum on the ultimate deal and specify what the next steps would be after such a referendum. Given that that is our policy – and that of a minority faction in the Labour party – there is unlikely to be a majority for such an amendment in the commons, even with Nationalist backing also.

    But in the Lords, ah …

    I think that is why May has not chosen this route until forced to – it is not that she is scared of the Commons (which she can probably persuade, at least the Tory and Unionist parts of it), it is the unelected house that she fears will try to sabotage Brexit. And that would create the hell of a constitutional crisis.

  • Roland – It’s the sovereignty of the British people that’s the issue and always has been.

  • david

    “There’s only one legal way of leaving the EU and that’s triggering Article 50, so unless wishing to negate the referendum there’s no role for parliament re Article 50.”

    Errr, you have missed the point. The only way to trigger A50 is by act of parliament. It is not just some declaration anyone can make whenever they feel like it.

  • A Social Liberal 4th Nov '16 - 12:43am

    David

    The point of the relevent part of our constitution is that Parliament is sovereign not the people.

    If you want to change the constitution then gather like minded people to you and fight for such a change. I wish you well in your endevour even if I do not share your desire for change.

  • @ Bryan

    Unless you have read the actual judgment I think it is easy to believe what you wrote. However the European Union Referendum Act did not actually give the decision to the people. It is possible to draft legislation so that it comes in to affect only after a positive vote in a referendum, but this was not done. The EU Referendum Act was silent on what UK laws would be changed if the people voted to leave.

    The judgment actually states that we need a new act of Parliament which sets out what acts or parts thereof will be repealed once we leave the EU after we have triggered Article 50 as well triggering Article 50 or as I expect giving the Crown / Executive the power to decide when to trigger Article 50. From my reading of the judgment it is the first part which is most important because the Crown / Executive does not have to power to repeal or amend acts of Parliament unless given specific power to do so.

  • Jayne Mansfield 4th Nov '16 - 6:54am

    @ Charles Rothwell,
    I do not usually disagree with what you say , but on the matter of Labour not standing a candidate in Richmond Park I do.

    The Labour Party Labour would is wrong to disenfranchise those who wish to vote Labour by not standing a candidate. If Liberal Democrats cannot win the seat by the power of its arguments then it does not deserve to win.

    Choosing not to manipulate our particular democratic system to achieve a particular aim, is not a symptom of a lack of moral fibre. In my view, it is quite the reverse.

  • Laurence Cox 4th Nov '16 - 9:56am

    Let’s look at what the Tories promised in their manifesto (it’s on page 72):

    “But there is much more to do. The EU is too bureaucratic and too undemocratic. It interferes too much in our daily lives, and the scale of migration triggered by new members joining in recent years has had a real impact on local communities. We are clear about what we want from Europe. We say: yes to the Single Market. Yes to turbocharging free trade. Yes to working together where we are stronger together than alone. Yes to a family of nation states, all part of a European Union – but whose interests, crucially, are guaranteed whether inside the Euro or out. No to ‘ever closer union.’ No to a constant flow of power to Brussels. No to unnecessary interference. And no, of course, to the Euro, to participation in Eurozone bail-outs or notions like a European Army.

    “It will be a fundamental principle of a future Conservative Government that membership of the European Union depends on the consent of the British people – and in recent years that consent has worn wafer-thin. That’s why, after the election, we will negotiate a new settlement for Britain in Europe, and then ask the British people whether they want to stay in the EU on this reformed basis or leave. David Cameron has committed that he will only lead a government that offers an in-out referendum. We will hold that in-out referendum before the end of 2017 and respect the outcome.”

    So it is pretty clear that the Tories under Cameron were committed to the Single Market and therefore to either staying in the EU, or a soft Brexit. The hard Brexit was certainly not in their manifesto. For May to push for a hard Brexit now is to go against the manifesto commitment on which both she and Cameron stood. There is no commitment to reducing EU immigration in this section. UKIP and their fellow-travellers on the extreme right of the Tories were the only ones pushing immigration as a critical issue; it was not part of the manifesto and had it been the result of the 2015 General Election might well have been different.

  • Philip Knowles 4th Nov '16 - 10:29am

    Thanks to Laurence Cox for the excerpt from the Conservative Manifesto which has raised a thought that I’ve always had in the back of my mind about manifestos (or is it manifestoes?) . There’s a famous contract law case (Carlill v Carbolic Smoke Ball Co – 1893) which defines when a contract is in place. A manifesto pledge is an offer to do something in return for a ‘consideration’ – an elector’s vote. If someone voted (accepted the ‘offer’) for the Conservatives on the grounds that they wanted to retain access to the Single European Market and Brexit results in loss of access would they be able to sue the Conservatives on the grounds that they didn’t fulfil the terms of the offer?

  • Matt (Bristol) 4th Nov '16 - 12:02pm

    Yes, thanks Laurence – I think unless the government plays a blinder in the House of Commons and any Brexit Bill deliberately apes the language of the manifesto (which is anathema to half Tory the party and all of UKIP), any part of the Lords that wants to have an outright fight on 2nd or 3rd reading of said Bill the could seek to argue that the Salisbury Convention is null.

    I’m not saying they should, this is too high-stakes stuff to play with fire unless you’re sure you know what you’re doing.

    My personal preference (amazing parliamentary strategist that I am not) would be 1) a symbolic cross-party campaign in the Commons (and possibly the Lords) to insert a post-negotiation referendum into the Bill, 2) concede that won’t be possible because I doubt the numbers will stack up, then 3) try to ensure situation May realises she will lose parliamentary confidence unless she secures single-market membership, 4) assent to article 50, 5) keep the pressure up during negotiations.

  • Laurence Cox 4th Nov '16 - 2:04pm

    @Matt (Bristol)
    I agree with you that the Government cannot require the Lords to follow the Salisbury Convention here. They can, of course, invoke the Parliament Act (1949), but that would require the Commons to pass the legislation twice in successive sessions, separated by twelve months and that would mess up May’s timescale of invoking Article 50 before April 2017. The two-year negotiating period, assuming that Article 50 is invoked in March 2018, would take May right up to the next General Election under the Fixed-Term Parliaments Act.

    There is another factor that will cause delay and constipation of the Government’s legislative programme. You cannot guillotine debate in the House of Lords:

    http://www.parliament.uk/site-information/glossary/allocation-of-time-motion/

    so any Peers wishing to disrupt the Bill could do so by proposing amendments and speaking in debate, and in doing so they would also eat into time for discussion of other legislation.

    I hope that May will now come to her senses and accept the judges’ ruling. I suspect that Parliament will agree to invoke Article 50, providing that there is a safeguard in the form of another referendum to accept or reject Brexit on the basis of the terms negotiated; rejection here would imply going back to the position before Cameron began his negotiations, since these were rejected in the first referendum. There have been multiple referenda before in the EU.

    The other issue is whether Legislative Consent Motions apply. Since these have to be passed by the devolved assemblies, there is the argument that Parliament invoking Article 50 without LCMs is taking rights away from citizens in the devolved regions in contravention of existing statutes. So, any Bill to invoke Article 50 might need explicitly to exclude LCMs and that would no doubt be opposed by the SNP at Westminster and Holyrood.

    While I both voted and campaigned for Remain, as a democrat I will accept Brexit providing that it is clearly the settled will of the electorate.

  • Steve Trevethan 4th Nov '16 - 6:07pm

    “Orders in Council” is oligarchy in knee-britches.
    The governance of the EU is oligarchy in business suits.
    Oligarchy, in all its outfits, morphs into plutocracy.

    Democracy which is genuine and not a front for oligarchy, is the most accountable and so the least inefficient form of government.

    Let us not accept oligarchy, however it is dressed up or promoted.

  • @ Laurence Cox
    “I suspect that Parliament will agree to invoke Article 50, providing that there is a safeguard in the form of another referendum to accept or reject Brexit on the basis of the terms negotiated”

    If you read the full High Court judgment, which you can find at https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/, you will see that all parties to the case agreed that once article 50 has been triggered Parliament can have no further role because the process cannot be stopped, it can only be delayed. This was a major plank in the decision.

  • Perhaps my previous post above was not very clear.

    In the same way as Parliament has no further role once article 50 is triggered, there can be no referendum on the conditions negotiated because once article 50 has been triggered there is nothing than can be done to stop us exiting the EU. This seems to be an argument from silence which I agree with, powers and procedures have to be set down for them to be valid. However it could be argued that unless something is not proscribed it is allowable, but in this case I think that argument is weak.

    Clause 3 of Article 50 is the relevant clause: “The Treaties shall cease to apply … two years after the notification … unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

    I think it can be successfully argued that if the drafters of this article wanted there to be a method to halt the process instead of just delaying it, it would have been included here. A possible way would have been to add at the end “or end the process ensuring that the Member State remains a member of the Union”. The drafters might have included some wording in clause 1 to allow a Member State to stop their withdrawal from the EU (according to their own constitution) but again they didn’t.

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