FRANCESCHI: Lesson from Brexit ruling: Don’t apply political solutions to legal problems

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By LUIS FRANCESCHI
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British Prime Minister Theresa May could be in trouble.

Brexit, which was in high gear until two days ago, has stalled.

The Supreme Court of the United Kingdom has decided that triggering Article 50 of the Lisbon Treaty to exit the European Union without parliamentary approval is beyond the mandate of the Executive.

This decision has thrown Britain’s exit plans into disarray, just when May and the rest of Europe had already made elaborate plans on how to deal with the divorce blues.

The court argued that triggering Article 50 would change the UK’s domestic laws substantially, and this cannot happen without the input of Parliament, the body constitutionally mandated to enact and amend laws.

Someone may ask, what about the will of the people, the referendum? The court said the referendum was a mere statement of the people’s political will, but it did not deal with the aftermath.

According to the court, the referendum dealt with a political issue, it was a political convention, to leave or not to leave the EU. However, it did not deal with the legal issue of leaving and the necessary changes to existing laws.

Judges are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question, but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.

The Supreme Court ruling is pregnant with the heavy baggage of historic tensions between Parliament, the crown, judges and the people; between politics and the law.

Almost 500 years ago, Oliver Cromwell said to Colonel Walton:

“We study the glory of God, and the honour and liberty of parliament, for which we unanimously fight, without seeking our own interests…and in this cause, I hope to prove myself an honest man and single-hearted.”

The supremacy of Parliament over the Executive has always been at the core of power plays. Sir William Blackstone, in his 1765 Commentary to the Laws of England, states that by royal prerogative “we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary cause of the common law, in right of his regal dignity.”

The idea of prerogatives was very much in the mind of the Secretary of State for Exiting the European Union, Hon. David Davis. He argued that the UK Executive can enter and withdraw from treaties in the exercise of its prerogative powers where they do not have to involve Parliament.

The government was to give notice of withdrawal by the end of March 2017 and a ‘Great Repeal’ Bill introduced in Parliament to amend the 1972 European Communities Act.

The Great Repeal Bill was expected to come into effect within not more than two years after invoking Article 50, and the two years could be extended if the other EU member states unanimously agreed.

Gina Miller took the matter to court, stating that allowing Secretary Davis to issue the notice would usher in Britain’s exit with the effect that some of the EU law would cease to apply, even without Parliament having amended the 1972 European Communities Act.

Miller’s team stated that to allow the Secretary to issue the notice would amount to an exercise of power leading to an alteration of domestic law, yet this was not permitted by statute.

The Divisional Court ruled in Miller’s favour, and Secretary Davis appealed to the Supreme Court.

The Supreme Court noted that the Crown’s prerogative powers had, with time, lessened due to parliamentary democracy and the rule of law.

Parliament, therefore, “was and remains sovereign: so, no new source of law could come into existence without Parliamentary sanction – and without being susceptible to being abrogated by Parliament”.

The court also observed that once Britain invokes Article 50:

:…the die will be cast before Parliament has become formally involved…the bullet will have left the gun before Parliament has accorded the necessary leave for the trigger to be pulled.

What about the referendum? Was it not enough proof of the will of the people? Yes, it certainly was. However, the referendum was the political expression of the will to leave the European Union. It was a political act, which did not take into consideration certain required legal steps.

In this regard, the court observed that the statute sanctioning the 2016 referendum, just like that on the membership of the European Community in 1975, did not provide for “any consequences of either possible outcome.”

It is necessary for Parliament to change the law in order to implement the results of the referendum, and it is for Parliament to decide the form this legislation will take.

In concluding, the court highlighted that “because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

On Thursday evening, the government ran to Parliament and presented the Article 50 Bill, which is just a few sentences long. The whole Bill says:

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. (2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

The lesson to learn from the UK is this: Do not give political solutions to legal challenges. It is precisely such temptation that leads politicians to manipulate the courts.

As a result, the courts lose moral ground in the vital task of safeguarding the rule of law.

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