Tory MP John Redwood on the decision last week of the High Court to rule that MPs must be allowed to debate the case for triggering Article 50 of the Lisbon Treaty before the UK can start to quit the European Union:
As the judges wished to trespass into this territory they should have acquainted themselves better with Parliamentary procedure and the recent Parliamentary timetable. They would have discovered that Parliament has had plenty of allotted time for debate and questions on Article 50 and general Brexit in both government and Opposition time. They would have realised that if the Commons wanted a vote on Article 50 the Opposition could at any time table a motion to require one in Opposition time. It could formally ask the government to table one, though the government might reply they should table one themselves. The fact it has not done so implies that the Commons accepts an Article 50 letter will be sent. Indeed, many Labour MPs have confirmed they agree with sending a letter, as does the government side.
Whatever else one might conclude about the issue of the judges’ involvement in the process – I am told that their judgement statement is well worth reading – I think Redwood has it exactly right here. MPs should not expect judges to do their work for them – if they had wanted to force the issue, they had in their power to do so. That they haven’t is, I suspect, based either on laziness and cowardice, or a fear on the part of the Labour MPs that a no-confidence vote and possible early election will wipe Labour out (oh happy day); the most enthusiastic Remainer Tories, such as Ken Clarke, may fear losing their seats, at least if they are in marginal ones. I also think that our membership of the EU, and the gradual erosion of Parliament and the quality of people entering it, means that MPs lack the kind of backbone that legislators of earlier ages might have had. Indeed, one of the reasons I voted for Brexit (even though I am very different in my views from the more nationalist inclined Brexiteers) is my hope that MPs no longer can hide behind the skirts of courts, either in Brussels or here, and have to start taking direct responsibility for the laws that affect this country. With ownership comes responsibility, and hopefully, an improvement in the product.
‘…and have to start taking direct responsibility for the laws that affect this country.’
Well said, I couldn’t agree more.
One has to ask whether or not Her Majesty’s Attorney-General for England and Wales made these points in court.
Ken Clarke’s constituency voted for Remain, he is safe, if he carries on.
And of course, Her Majesty’s judges would wish that the matter be decided by not just the Commons but the Lords Spiritual and Temporal, for reasons which are obvious.
I think Redwood’s point is misconceived. It is clear from the court’s judgement, even though they don’t say so explicitly, that a vote on a motion in Parliament would be just as legally insufficient as an attempted exercise of the Royal Prerogative by a Minister. The rights the court claims may be wrongly removed are given by the 1972 Act. So to remove them – by giving notice under Article 50 – a new Act of Parliament is required. It is no answer to this to say that MPs could have demanded a vote. The fact is no one has passed a new Act.
The judgement is, IMHO, wrong not because the judges don’t understand Parliamentary procedure, but because they have invented out of whole cloth a new legal principle – that the Crown’s power to make and unmake treaties under the Royal Prerogative may be limited by the court’s assessment of an unspoken implication, rather than just by an express prohibition in statute. Hitherto the legal procedure for treaties and their incorporation into domestic law as been very well establlshed. The Crown can make, or end, any treaty it likes, under the Royal Prerogative, but the treaty has no effect in domestic law unless Parliament passes a domestic Act giving it domestic legal effect.
But that does not – unless Parliament says so in statute – fetter the Crown in its rights to make new treaties or end old ones. If the ending of an old one happens to affect a right under domestic law, because Parliament has in the past chosen to attach that right to the continuing applicability of a treaty, then the right disappears with the treaty precisely because that’s how Parliament chose to enact the right. If Parliament had wanted the right not to be dependent on the continuing applicability of the treaty, it need not have glued the right to the treaty.
When I first read the Judgment, I thought the Court got it wrong.
MPs must act if rights are to be taken away or added to the panoply extended to all citizens. If England wants a negotiated withdrawal, it must negotiate and then enact a withdrawal agreement – which is essentially a treaty. Treaties require Parliamentary action. So, I thought the Court got it right on this end – if there is to be a negotiated withdrawal, Parliament would have to pass it.
Where I thought the Court erred was in ignoring the possibility that, after the Article 50 notification, there need not be any negotiated withdrawal – you could merely give the notification, and then wait two years, at which point withdrawal would be automatic, on no terms.
Given that (I had thought) Parliament had written the Referendum Act in a way that said “we shall have a vote, and if we vote to leave, we shall leave”, then it seemed that Parliament DID act affirmatively, thus supplying the Parliamentary action this Court sees as being required for withdrawal. Acting on an act of Parliament that says “vote, and if Exit wins, we exit” should make this Court happy.
But, lo and behold, the Referendum Act was NOT written that way. There is nothing in the Act that orders any action by any governmental body once the referendum has been taken. The vote is not binding on anyone, for any purpose – at least by the terms of the Referendum Act, which was the only enabling legislation pertinent to Brexit.
People have pointed out that government-drafted flyers indicated that the government would follow the result of the vote – i.e., if Exit won, the government would pursue Exit. But that wording was not put on the flyers by any act of Parliament – it was simply the word choice of executive-branch employees.
Thus, I was wrong to think that Parliament had already approved a withdrawal without treaty. Parliament explicitly empowered NO action as a result of the referendum.
The Court got it right. I think it’s your Parliament that did it wrong. They needed authorization in the Referendum Act to use the results of the vote in any manner, but they left that out.
This isn’t a common-sense, “but of course they meant it to be binding” kind of opinion. It’s a legalistic, language-driven analysis of the authorizing and operating black-letter law pertinent to the situation – which is what the Court gets paid to do.
Frankly, I think your MPs either never expected it to pass and so they left out the Stage Two language, or they thought it might pass and so someone got cute and sabotaged it.
booby b,
Parliament has limited the Crown and its rights to make changes to the EU treaties under the European Union Act 2011, and it provided specifically for an extension to negotiations under Article 50 (3) to be subject to a referendum for approval
Thus, some decisions on the Lisbon Treaty require, not merely an Act or the Prerogative, but a referendum. Article 50 (1) (withdrawal) is not one of them. Parliament has left it open for the use of Article 50 (1) to be unfettered, and the argument that leaving the EU repeals UK law is nonsense. The 1972 Act would remain in force, so EU law up to that date would remain on the books, with Parliament entitled to repeal it or not. The right to leave is enshrined in law by the Act that gave the Lisbon Treaty force in law.
And now the Scottish Executive or Government wants to intervene in the appeal to the Supreme Court…
Not quite sure that it really has locus standi as this is a UK matter, voted on at a UK level by UK and Republic of Ireland citizens.
bobby b : Treaties require Parliamentary action.
This is where your argument goes off the rails. Treaties do not, and never have, required Parliamentary action. Parliament can pass an Act to give them domestic effect if it chooses, or not if it chooses not. But that has no effect on the existence of the treaty, which is made or unmade by the Crown.
The Crown has always had the right to make and unmake treaties under the Royal Prerogative (except to the extent that may have been expressly limited by statute.) As Mr Ed explains, under the EU Act 2011, the Crown’s right to make certain treaty amendments has indeed been expressly limited by statute. But giving notice to withdraw from the EU treaties under Article 50(2) is not one of those express limitations. The limitation is an “implied” one, a secret one, discovered by the gimlet eyes of the judiciary.
Mr. Ed:
(Too funny – couldn’t sleep, just turned the TV on, and what’s on? The real Mr. Ed.)
The Lisbon Treaty, Article 50, starts out with this statement:
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
The Lisbon Treaty, by itself, cannot alter or amend those “constitutional requirements.” By explicitly including this statement, Parliament guaranteed that an act of Parliament was still required for Article 50 withdrawal.
I’ve read through a lot, but not all, of EUA 2011. I can’t find anything that explicitly indicates that Parliament was ceding its prerogative over withdrawal to an act of referendum. Your link goes to a chapter summary, and I have not followed it down to all of the specific provisions, but the subheadings listed don’t intuitively lead me to any such provision. Any specific provisions you can highlight would help.
(I see your reference to the Art. 50(3) withdrawal negotiations time extension (beyond the two-year period contemplated between notification and withdrawal), but I don’t see where Parliament took the next necessary step concerning approval of any treaty. Once the referendum authorizing the time extension had been concluded and won, you still need to enact a withdrawal treaty, and nothing that I see in the EUA 2011 covers that.)
((“. . . the argument that leaving the EU repeals UK law is nonsense.” – It doesn’t repeal UK law. To leave the EU requires an affirmative act of law, the authority for which has not been ceded by Parliament anywhere I can find.))
Mind, I’m no expert on British law. You likely are. But I’m not seeing the specific provisions you’re speaking of.
Lee Moore, November 8, 2016 at 12:08 pm, summarises the issue well. The government’s has the right to issue article 50 without a parliamentary vote. A parliamentary vote is needed to repeal parliamentary acts that impose aspects of European law on the domestic scene. This was never denied by leavers.
However Redwood’s point is well worth making. Exposing the phoniness of the ruling is easier when it is clear parliament itself needs no such ruling to assert such a ‘right’ at any moment.
Lee Moore:
I thought that there were circumstances under which Parliament had to approve treaties?
Reading through a Chicago-Kent Law Review article, I came up with this:
It seems to me that withdrawing from the EU is going to affect existing domestic law to a great extent. While the Crown gets final say in treaties dealing with war and peace between countries, pretty much all treaty adoption seems to go through Parliament for approval.
Nay, I say! Nay! What makes you think our Mr. Ed is not in fact the real Mr. Ed?
I think you’ve got things a bit mixed up, bobby b. I suggest you read sections 6 and 7 of the 2011 Act. (Click on the Table of Contents and you will then find sections 6 and 7 easily enough.
You will see that the restrictions in sections 6 and 7 are directed at MINISTERS not at Parliament. Parliament, obviously, can do what it likes in a later Act. The law in sections 6 and 7 restricts what Ministers are allowed to do, not what Parliament is allowed to do. Without sections 6 and 7, Ministers, acting under the Royal Prerogative (which is a fancy name for “exercising executive power that isn’t expressly granted in statute”) could agree all sorts of stuff in EU meetings which could have the effect of extending EU powers and jurisdiction (because of pre-existing statute giving EU laws direct effect in the UK.) Sections 6 and 7 say a Minister’s power to do that is restricted unless there’s a law passed and in some cases a referendum is passed too.
And therein lies the rub – Sections 6 and 7’s express limitation on Ministerial power to extend EU law is a black and white double underlined acknowledgement by Parliament that without such statutory restrictions Ministers would have had these powers. It takes an express statute to take them away.
But this is exactly what the recent court judgement tries to deny. The court claims that the Minister’s powers to give notice under Article 50(2) have been removed silently, by implication. So according to Parliament in the 2011 Act, Ministers have to be prevented from exercising the Royal Prerogative in a way that affects the rights of UK citizens derived from EU law, by an express prohibition in statute. But according to the courts Ministers don’t need to be prevented from exercising the Royal Prerogative in a way that affects the rights of UK citizens under EU law (by giving notice under Article 50(2) – because Ministers are already prevented from doing so by an implied provision of the 1972 Act.
You complain that you can’t find the provision in the statute that Mr Ed was talking about. I’ve pointed you at it. But you’ll never find the provision in the 1972 Act that the High Court was talking about – the one that restricts Ministers rights to give notice under Article 50(2) because it’s not there. The court invented it.
It seems to me that withdrawing from the EU is going to affect existing domestic law to a great extent
That depends entirely on what UK domestic law already says. If the EU passes a rule saying “each member must pass a law requiring employers to provide employees with a pensions scheme” and Parliament then passes a law saying “Employers must provide employees with a pension scheme” then withdrawal from the EU makes no difference to the domestic law. It’s still there, even after the withdrawal.
But if the EU passes a law saying “Law 26199 – An employer in any member state must give any employee in any member state a pension scheme” and the UK Parliament passes a law saying “EU Law 26199 shall have effect” then withdrawal from the EU will affect domestic law, because the UK will no longer be a member state.
That’s why your article says “broadly speaking” – since the Crown can’t make domestic law without Parliament’s approval, broadly speaking a treaty is just a piece of paper unless Parliament passes a law giving it domestic effect. Here’s an illustration.
The Crown agrees a treaty with, say, the Netherlands saying “UK planes can land at Dutch airports and Dutch planes can land at UK airports.” Parliament passes a law saying “Dutch passenger aircraft can land at UK airports and Dutch ships can dock at UK ports.” UK domestic law is both narrower (no Dutch cargo planes) and wider (Dutch ships) than the treaty the Crown has agreed. But UK domestic law is what the UK Parliament has enacted.
Meanwhile the treaty is what the Crown agreed and the Dutch government will be on the phone complaining that the UK is in breach of the treaty in re Dutch cargo aircraft.
bobby b: To you, from the horse’s mouth, glad you see my impostor is still working.
Those are the words of the Treaty, and they indicate, I suggest, that the Treaty itself does not set up any requirements for notification, just whatever plays in the departing State. i.e. there is no extra mechanism required by the EU for it to be told. It just has to be a proper notification, throwing the ball back to the domestic court.
The EUA 2011 was put in by Cameron’s coalition to legislate in an area previously not governed by legislation, i.e. the common law and the Royal Prerogative. The heading of the title of the Act states:
So the Act provides for there to be restrictions, and goes on to list those restrictions in its various sections, including restrictions on part of Article 50, in 50 (3) but not 50 (1). If Parliament had wished or found in necessary to restrict the operation of Article 50 (1) (e.g. by requiring a referendum or an Act to effect withdrawal by 50 (1)) then it could have done so, but it chose not to. It did restrict the use of Article 50 (3) and many others. Therefore, Parliament has legislated for the Lisbon Treaty, providing for the right to withdraw and then again legislated on the treaty, yet did nothing to restrict the Crown’s power, therefore leaving the Crown free to act.
Lee, 6 and 7 were among the sections I did find and read earlier, and I’m still confused. (Not that that ever really changes. Confusion can be more a state of mind than a temporary condition.)
But if I’m confused, at least it seems I’m in good company. Those high lord chief justices and all. 😆
Good post.
Parliament has already voted – the Referendum measure was an ACT OF PARLIAMENT.
The judges are liars (there is no point in mincing words) the 1972 Act did not “give rights” to the British people – it took rights away, the right to self government that the people have just voted to have returned to them.
If the judges want another Parliamentary vote (on top of the ones that Mr Redwood has pointed to), then would a Bill of Attainder suit the three individuals concerned?