As we all know, the outcome of the referendum held in the United Kingdom regarding remaining with or leaving the European Union resulted in a vote 52/48 in favour of leaving. What no one within the “corridors of power” appears to have really thought about was how the result might be implemented if, as proved the case, it was a vote to “leave”.
Obviously the “executive” step required to leave the European Union is for the government of the day to trigger Article 50 of the Treaty on European Union. However, as is now well known the High Court of England and Wales, presided over by no lesser than the Lord Chief Justice himself, has ruled that Article 50 cannot be activated without the approval of Parliament to do so.
While the High Court’s decision is awaiting an appeal straight to the Supreme Court of the United Kingdom, to be heard over three days from 5 December 2016, the reasoning of the High Court is quite orthodox and easily explained. In the “Westminster” system of government Parliament is supreme and the “law of the land” in terms of that made by the legislature (namely Parliament) can only be modified or repealed by Parliament itself. Indeed, as support for that basic proposition, the High Court referred to a decision of what is now known as the High Court of this country in Fitzgerald v Muldoon that concerned an attempt by the government of the day, under the leadership of one Robert Muldoon, to change superannuation rights that were enshrined in legislation. Only Parliament can affect rights so created.
What everyone appears to have overlooked in the Brexit debacle – everyone, that is, but for the plaintiffs who brought the case to the High Court and the High Court itself – is that the various treaties that the executive branch of the government of the United Kingdom has entered into since the 1960s as its part of the creation of the EU cannot have had any domestic effect within the United Kingdom itself but for primary legislation passed by Parliament. In very simple terms, that legislation takes the form of the European Communities Act 1972 (UK) that has had the effect of incorporating into the domestic law of the UK the various treaties and regulations that create the body of EU law. By this means, EU law has become part of the law of the UK.
What the High Court has accepted, and ruled, is that activation of Article 50 which inevitably results in the extraction of the UK from the EU means that part of the UK’s own law, while deriving from its membership of the EU, will be changed. That can only be done with the sanction of Parliament. That is why the High Court has ruled that the executive branch of the government (essentially the PM and her cabinet) cannot, without that approval, trigger Article 50. That is notwithstanding the outcome of the referendum because as the Court noted, the Courts know no “will of the people” other than that expressed in the acts of Parliament.
That is where it may well become very interesting in the event that the Supreme Court dismisses the appeal and the High Court decision stands. The matter will then have to be considered by both houses of Parliament (namely the UK House of Commons and the House of Lords) and both will have to vote on the question of whether or not the UK should activate Article 50. In the UK the outcome of referenda such as that held recently are, from Parliament’s point of view “advisory”. They are not binding. Both houses of Parliament are at liberty to vote on this question as they see fit. But how does your average parliamentarian vote given not only the outcome of the referendum but the closeness of it? It is certainly not an outcome that is so overwhelming that no reasonable Parliament could ignore it. Indeed, is it so close that it is not one that Parliament can, really, have that much regard for?
One does have to wonder what the thinking was behind putting the question of the EU to referendum. Perhaps it was based on a misguided assumption within Westminster that the result would confirm that the UK wishes to remain within in the Union and, therefore, there was little thought given to the implications of the contrary result. Maybe that’s the case. Maybe that’s not the case. Maybe the government had considered this very question and decided, presumably on advice received, that reference to Parliament was not required. That, however, seems unlikely for the arguments put on behalf of the government to the High Court were not, at least on our reading, particularly persuasive. It seems unlikely that, if the point had been considered, it would have been left unmentioned throughout the referendum process.
What a mess. It is no wonder there is talk of an early election in the UK. What Parliament would want to hold this “poisoned chalice”?