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Samizdata quote of the day This argument is illogical and does not hold water. There are many acts which the government can carry out on the international plane under the European treaties which have the effect of altering UK domestic law, and in doing so either confer rights on people or deprive them of rights. Whenever the UK representative on the Council of Ministers joins in passing into law a directly applicable EU Regulation then the Crown in using the prerogative power to alter internal UK law without that alteration of the law going through Parliament. This is simply a consequence of the direct effect machinery of the 1972 Act.
So why should it be OK to have “more Europe” through exercise of the prerogative power, but wrong to have “less Europe” as a result of Article 50 being invoked and the direct effect parts of EU law ceasing to apply within the UK? Nothing in the wording of the 1972 Act supports such a distinction.
– Martin Howe QC, Thomas Sharpe QC, Clive Thorne, Francis Hoar from Lawyers for Britain
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This is another of several demonstrations of the illogicality of the judgement. One hopes for more honest appeal judges.
However, more for the intellectual exercise than as a recommended way to resolve this, I am also interested in other forms of illogicality. What is the situation If parliament dissents from the initial judges’ view? This could happen in effect by Theresa making a direct statement and daring dissenters to vote on it. This could happen by the repeal of the Europe act having a rider that “and parliament therefore recommends the government initiate article 50”. Etc. If either of these pass the commons, then the judges ruling has the absurd effect of claiming parliament has powers that it refuses to claim.
Having now read the Judgment, I’m left wondering why the Court didn’t decide that, while approval of the specific terms of a Withdrawal Agreement would require an act of Parliament, simply letting the two-year period pass and withdrawing completely, without any agreements, wasn’t already Parliament-approved through the EURA.
Of course, I haven’t read the EURA. Did that legislative act say anything about “and if the people vote to exit, the government shall give notice to the EU . . .”? If it didn’t – if it failed to call out exactly what Brexit would mean – then I suppose there’s an argument that the EURA did NOT authorize notice, but was simply a nonbinding vote to show the MPs the lay of the land.
The quotation in the post is making a correct logical point.
The judges have de facto declared that “more Europe” may be established by Executive action, but “less Europe” needs another Parliamentary vote – even though Parliament has already voted, when it established the referendum.
In short the judges have taken sides in a political dispute – taken sides against the British people and the independence of the United Kingdom.
Well at least it is out in the open now, no more pretence, the establishment are the enemy of the British people and of the nation. I suspect this has been true for a long time.
Exactly so Paul. I assume people recall this:
It does not say “vote what you want and maybe we will think about it”.
And I note it says, “The government will implement what you decide”, not “Parliament will implement what you decide”. Unlike many other valid arguments, I would not call that wholly decisive: as regards repeal of the Europe Act, it should be interpreted as “the government, by using a three-line whip on its majority, will implement what you decide”. However it is a strong indicator of prior parliamentary consent to all but the clearest “requires its own explicit vote” cases, making the judges ruling yet more ridiculous (were that needed in logic).
A piece penned many years ago by Dyson Heydon, a Judge of the High Court of Australia, seems not inappropriate. The title: Judicial Activism and the Death of the Rule of Law.
Paragraph 71 of the judgment is below, it concerns the European Union Act 2011:
Note that Article 50 (3) (extending withdrawal negotiations) is covered by that Act, and requires a referendum to approve before legislation is passed approving it, but Article 50 (1) -leaving – is not restricted or mentioned in the Act, so necessarily, this Act governs the use of the Prerogative and leaves it unchecked.
So Parliament looked at Article 50, restricted by Act the right of the Executive and itself to legislate for some but not all exercises of treaty rights, but not the right to leave.
Yet HM Attorney-General for England and Wales appears not to have raised this point. A deliberate oversight, or ineptness?
Yet HM Attorney-General for England and Wales appears not to have raised this point.
I’m not sure that’s right. Para 76(5) of the judgement makes it clear that the AG did make that point. So far as I can see the judges answered that point by completely ignoring it, and basing their judgement on the argument that the 1972 Act is a heap big important constitutional Act, so there !
The essential and unanswerable point made by Howe et al is this one :
“There are many acts which the government can carry out on the international plane under the European treaties which have the effect of altering UK domestic law, and in doing so either confer rights on people or deprive them of rights. Whenever the UK representative on the Council of Ministers joins in passing into law a directly applicable EU Regulation* then the Crown i[s] using the prerogative power to alter internal UK law without that alteration of the law going through Parliament. ”
Thus although by the 1972 Act Parliament expressly grants power to the EU institutions to pass directly effective laws in the UK, the Act grants no powers to UK Ministers to vote in the Council of Ministers to pass such EU laws. Ministers’ votes in the Council of Ministers, which have the effect of restricting the domestic rights of Britons, can therefore only be exercised pursuant to the Royal Prerogative (Ministers’ powers being restricted to those available under the Royal Prerogative plus those given to them by statute.) Since they must have done this several thousand times in the last forty years, it’s a bit rich to say “whoopsy, no Royal Prerogative !” now.
I suggest the government’s lawyers list a few hundred examples of Ministers using the Royal Prerogative to vote in the Council of Ministers for rights-restricting EU laws, to assist the Supreme Court in its deliberations.
* it isn’t, of course, just Regulations. It’s also Directives since the EC has concluded that these too have direct effect.