Tuesday, 8 November 2016

Lexit before Brexit

The judiciary has just reminded us of its role as the guardian of our constitution which, although unwritten, is clear about the division of powers between the executive and the legislature.

Despite the people having spoken in a referendum, Mrs May is not able to trigger Brexit without an Act of Parliament to authorise it.   So held three eminent judges last week, who ruled that the government’s attempt to give notice under article 50 of the Lisbon Treaty would otherwise be unlawful.

It was Parliament which first subjected us to European law, making it directly applicable in our own domestic law by the European Communities Act 1972.  Under our constitution, this can only be changed by further Parliamentary authority.  The 1972 Act did not reserve executive power, even with popular support, for the government to reverse the position and cast out European law on its own, so a fresh Act of Parliament is needed for this to happen.

The government is entitled, by virtue of the Crown prerogative, to act independently in matters of international law.   However, as Brexit would also affect the laws of the land, the government’s claim to be able to use Crown prerogative for giving notice under article 50 was “flawed at this basic level.”

MPs are elected to make our laws and we can’t pass the role to the executive, even on one off issues by referendum.  Brexiteers may consider that this is undemocratic, Leavers that it prevents mob rule but the High Court has said it is the law.

If the government loses its appeal to the Supreme Court in January (and assuming Mrs May doesn’t contemplate a further appeal to the European Court of Justice!) a bill will in due course be laid before Parliament.   Whatever political twists and turns accompany it, the result will no doubt be an Act of Parliament to authorise Leave, in support of the referendum decision.  Brexit therefore still seems inevitable but the issue behind the current constitutional diversion begs the question “what actually would be the effect on our own laws when European law no longer applies?”  We’ll give some thoughts on this next time…

Link to art 50 http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html


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