Gibraltar left in 'legal limbo' by Brexit!

by Brian Bamford

IT now seems that Spain has was given an effective veto over the Brexit deal last Friday, when the EU Council's draft negotiating guidelines said Madrid could exclude Gibraltar.

It has been claimed Spain took this advantage when Theresa May failed to specifically mention Gibraltar in her Article 50 letter on Wednesday - prompting claims of a rift with the peninsula's government.

In the Spanish newspaper of record, El Pais yesterday, the journalist Lucia Abellan in an article entitled 'Spain could veto the application of a pact over Gibraltar between the EU and London' wrote:
'This situation leaves the British colony in a legal limbo that is able to force a negotiation between Madrid, and London.'   

There have been continual tensions in the relations between Spain and Gibraltar since the days of General Franco in the 1960s, when I first worked in Gibraltar.  I was living in Gibraltar at the time of the 'British We Are, British We Stay' referendum in 1967, shortly after which General Franco closed the frontier with La Linea completely.

Before that over 10,000 Spanish workers had been crossing that frontier from the Spanish towns of La Linea, San Roque and Algeciras to work in the dockyards and at the airport for the MOD  each day.  Today, similar numbers of Spaniards still work in Gibraltar despite the decline of the MOD as an employer.  If Spain closed the frontier restricting this movement of labour then Gibraltar would have difficulties replacing the Spanish labour.  It wouldn't be so easy to bring in labour from Africa as happened when the frontier was closed in the late 1960s under Franco.

Parliament Gets Vote on Brexit!

THE Supreme Court has ruled today that Parliament must vote on whether the government can start the Brexit process.

This judgement means Theresa May cannot begin talks with the EU until MPs, and peers give their backing - although this is now expected to happen in time for the government's 31 March deadline.
But crucially, the court ruled the Scottish Parliament and Welsh and Northern Ireland assemblies did not need a say.
During the Supreme Court hearing, campaigners argued that denying the UK Parliament a vote was undemocratic and a breach of long-standing constitutional principles.

They said that triggering Article 50 of the Lisbon Treaty - getting formal exit negotiations with the EU under way - would mean overturning existing UK law, so MPs and peers should decide.

The Decision of the Supreme Court

Reading out the judgement, Supreme Court President Lord Neuberger said:
'By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so.' 

He added:  'Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights.  The UK's constitutional arrangements require such changes to be clearly authorised by Parliament.'

The court also rejected, unanimously, arguments that the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly should get to vote on Article 50 before it is triggered. 

But Nicola Sturgeon has said that the Scottish government will propose legislation allowing Holyrood to have a say in the triggering of Article 50.

The Scottish Problem?

The justices held back from insisting that the devolved administrations would have a vote or a say on the process. That was, as described by a member of Team May, the "nightmare scenario".
The Scottish National Party has said it would not try to veto Brexit, but there is no question that having a vote on Article 50 in the Holyrood Parliament could have been politically troublesome for the government. After the judgement the BBC reported that it seems like an unexploded bomb.
And second, the Supreme Court also held back from telling the government explicitly what it has to do next. The judgement is clear that it was not for the courts but for politicians to decide how to proceed next.
That means, possibly as early as tomorrow, ministers will put forward what is expected to be an extremely short piece of legislation in the hope of getting MPs to approve it, perhaps within a fortnight.

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.