Brexit -an analysis of the High Court verdict

A court in the UK has decided that the UK Government must take the approval of Parliament for invoking Article 50 to set in motion the process of reversing its membership in the European Union.

According to the Court, the Parliament intended “EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers…”.

This can be reasonably interpreted in two ways:

(1) If these rights had already been incorporated into domestic law, then there is no need to worry about them being taken away merely because UK would withdraw from the European Union.

(2) On the contrary, if those rights had been conferred on British citizens because they would be entitled to exercise those rights as EU citizens, then naturally those rights would be withdrawn once Britain is no longer a EU citizen. Indeed, those rights would no longer be relevant.

It appears, to me, to be like a hair-splitting argument to suggest that rights conferred on the British by the British Parliament on account of them having become EU citizens can be taken away only by the Parliament when the citizens have voted not to remain members of the European Union!

It is not as though British citizens’ fundamental rights were being conferred on them only by virtue of them being EU citizens and that they would be lost if Britain ceased to be a EU member. If so, that would be a matter for concern. That is not the case.

The rights of Britons as EU citizens would be unnecessary and an irrelevant consideration when they do not want their country to be part of the EU.

The preference to leave the EU – expressed in the referendum – overrides any consideration of the rights of only the UK Parliament to remove the ‘EU citizen rights’ that arose on account of the membership of the Britain into the EU. It is a non-sequitur.

The court has taken an extremely legalistic position without respecting the will of the people and its spirit reflected in the referendum verdict.

Indeed, all that the Parliament should do now is to pass a resolution to acknowledge the verdict of the people to leave the EU and remove the ‘EU citizen rights’ conferred on Britons on account of the passing of the European Communities Act 1972 and leave it to the Government to invoke Article 50 of the Lisbon Treaty as per the verdict of the Referendum.

In other words, the Parliament cannot and should not stand in the way of the Government respecting the popular vote. If it does not do so, there is no legitimacy for the Parliament itself for it derives its sanction and authority from the will of the people.

Some have taken to argue that the referendum vote was always non-binding on the Parliament and that it was only advisory in nature. That is flawed on two counts. One, the court ruling was not about that at all. Two, it was not communicated to the public, that their vote would be non-binding and advisory in nature, before the referendum vote.

The Parliament voted to authorise the referendum by a margin of 544:53. In England, the final margin between ‘Leave’ and ‘Remain’ was 6.8%.

A 8-page guide was sent out to voters in the week of 16th May by the Electoral Commission. You can access it here. This is the official document about the Referendum. It says nothing about the Referendum being non-binding or being advisory in nature.

It would be a reasonable inference on the part of the voters that it would be binding, especially when 544 Members of Parliament voted to authorise the holding of referendum. One would reasonably assume that the MPs also voted to accept the verdict of the Referendum, no matter how it went, considering how an overwhelming majority of them voted to authorise the referendum. If not, it should have attached a condition saying that the Parliament authorised the holding of the Referendum subject to the provision that it would only be advisory in nature. That was not done. Nor did the Bill introduced in the Parliament have anything to say about the non-binding or advisory nature of the Referendum. Nor did the Electoral Commission’s document mention that.

The FT has published some select extracts from the Court verdict here. The judges have said the following:

The 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the EU would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the EU.

It cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law: “The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament.” [quote from the leading, 19th century account of the constitution by AV Dicey]

Yes, the briefing paper published by the House of Commons Library in June 2015 in page 25 says the following:

this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. [Link]

But, it is rather surprising that, before the vote actually took place, no one spoke or behaved as though the referendum was advisory in nature. If so, what the fuss was all about?

So, what should the ordinary voter make of this court verdict? What is the deemed advice of the Court to the Parliament which derives its sanction from the will of the people?

The judicial verdict raises a question on the very purpose of the Referendum. Why was it called if Parliament had the overriding authority? Why didn’t the Remain camp move the Court against the holding of the Referendum itself if it was not binding? Why did they wait for the result of the referendum to move the Court? Is it because the popular verdict went against them?

Yes, that is what seems to be at work. They wanted to have the cake and eat it too. The House of Commons Library Briefing paper published in 2015 suggested to the Members of the Parliament that the referendum was non-binding. Yet, the public was not told explicitly about it. Hence, if it went in their (‘Remain’ camp) favour, they wanted to make it binding. Since it did not, they want to argue now that it is non-binding, advisory in nature and that the Parliament had to first address the European Communities Act 1972, etc.

This is dangerously myopic. More than the Brexit vote, this has much deeper implications for the British society. Those who are crowing about the so-called ‘landmark’ verdict are declaring that their self-interest is more powerful than their intelligence, if any.

The Court, in my view, should have done the following:

(a) It should have dismissed the petition. [It did not do this].

(b) It should have told the government that the Article 50 could not be invoked before the Parliament removed the rights conferred on the Britons under the European Communities Act 1972. [Well, that is what the Court has done]

(c) It should have issued a ‘non-binding/advisory’ direction to the Parliament to fulfil its duties as per (b) above and thus respect the referendum verdict since it voted to authorise the referendum by an overwhelming margin, since it did not inform UK voters properly, adequately and repeatedly that their vote would be non-binding on Parliament, before the referendum took place and since it derived its sanction and legitimacy from the will of the people. [It has not done this]

A FT article on the Article 50 of the Lisbon Treaty published in July 2016 is here and the full text of the Article 50 is here.

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3 thoughts on “Brexit -an analysis of the High Court verdict

  1. Thanks for your comments. I do not think that your points contradict what I write. That the Parliament – if it derives its legitimacy from the will of the people – must have been directed by the Court to pave the way for the UK Government to invoke Article 50 of the Lisbon Treaty rather than the government being ordered to go to the Parliament. There is a distinction.

    The story may be intricate, no doubt, but that is because humans tend to complicate simplicity.

    I don’t necessarily agree that the Conservatives would dilute Basic Rights while interventionists like the Labour Party would defend them.

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  2. On the Questions of European Rights in UK law :-

    Point 1 above is irrelevant as ever since UK parliament agreed to accede to EU, UK is governed by EU laws in most cases – there is nothing called a separate UK law, it is assumed by parliament fiat that EU law is the same as UK law. Similarly, for matters concerning personal law, trade and commerce, etc. the European court of Justice dominates over any UK court as the law which needs to be upheld is European law and UK courts defer to European courts for wise counsel. This has been a bug bear in UK for a long time as EU courts have time and again upheld the law on “right to family” to the discomfort of UK people & politicians when it comes to immigrants.

    On the second point 2 – UK citizens are governed by UK parliament and are EU citizens. The laws are applicable not as EU citizens but by UK parliament decree that those laws apply to all UK citizens.

    And herein lies the crux of Brexit debate.

    Talking about Brexit, even before that for the last six years the conservative government has been toying with something called a British Bill of Rights (https://en.wikipedia.org/wiki/Proposed_British_Bill_of_Rights). On the point about British people’s rights are conferred on them because they are EU citizens is legally correct. The day UK ceases to be part of EU, all the legal rights of British citizens are lost (only obligations are left as they have been mandated by UK parliament in many cases not the EU). This is the crux of why Labour party is angry with Brexit (even though its utopian leader seems to disagree with the majority of his party). It is an irony of history that the European Charter and Rights were in fact drafted by Britain and conferred on EU. Recollect that EU in the 50’s was a war ravaged nation trying to rebuild itself and it was UK legal fraternity which conferred a lot of the Rights under EU charter – now unfortunately, the politicians have twisted the arguments in the name of Sovereignty to say that there needs to be separate British Bill of Rights (which is really what the current EU bill is). Labour clearly smells the risk of a Conservative party diluting basic rights and human dignity in the name of Brexit.

    The Great Repeal bill which Theresa May planned was funnily going to state that as on date all EU laws will be UK laws till UK exits EU. After that it will still remain UK law but from that date, parliament can change it on its own (http://www.express.co.uk/news/politics/716731/Great-Repeal-Bill-what-is-act-Brexit-Britain-take-back-laws-1972-European-Communities-Act)

    This story is lot more intricate and will go on for a very long time, not 6 months or two years.

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  3. The people have never mattered in England. Nor anywhere else, for that matter. In the US, it is the electoral college that matters for choosing the President, not the popular vote where four times in the past, the guy who became president didn’t win the popular vote.
    What matters is the fig leaf.
    This Article 50 thing is the much debated issue of where sovereignty resides. In Britain it has been around for at least 500 years, ever since James I tried to impose a duty on the import of currants in 1608 saying he had a sovereign right to impose a tax. A similar case came up in Hampden’s case in 1634 or so. A dozen judges sat on that one and ruled in favour of the King 7-5. The whole sovereignty issue came to a head in the 1640s and in 1649, the Brits showed the world where they thought it lay — by cutting off the King’s head and abolished monarchy. In 1660 they restored the monarchy but not before they had made it absolutely clear that parliament, not king, was sovereign.
    I think the high court has merely reiterated this position, for the nth time.

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