Tuesday, 8 November 2016

Brexit & the High Court

What every student of constitutional law should know

THE shock some people felt about the decision of the English High Court only serves to remind us how little attention most English people pay to the nature of our unwritten constitution.  In 1610 following 'The Case of Proclamations'  Sir Edward Coke ruled:  'The King hath no prerogative but that which the law of the land allows him'.  

Last week over 400 year later the English High Court has sought to cite that ruling and affirm that principle with regard to Brexit.

The High Court has now required that parliament should pass a bill to invoke Article 50.  Though the government is now going to appeal it would be surprising if the Supreme Court would reverse this decision.

Any first-year law student should know what a leading editorial in the Financial Times' last Saturday declared:

'It has been found that the government cannot trigger Article 50, initiating the UK's departure from the EU, without parliamentary approval.... Brexiters complain that the will of the people is being subverted.  But this is the rule of law; it is how UK democracy works.'

The government case had sought to argue that it could use perogative powers deriving from the concept of the royal prerogative to reverse the decision of the European Communities Act of 1972 to put the UK into Europe by triggering Article 50 of the Lisbon Treaty. 

The High Court rejected this argument, deciding that the European Communities Act was designed 'to introduce European Union law into domestic law'. 

For the supporters of the Leave campaign to now object to this decision of the High Court  is absurd, because it upholds the primacy of parliament, which is what they have always insisted upon throughout.

No comments: