"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Monday, December 19, 2016

Brexit is Likely Not a Legal EU Exit Without UK Parliament Approval as Required by British Constitutional Law Principles

The Supreme Court of the United Kingdom began hearings on December 5, 2016 on an appeal from a High Court judgment that only Parliament could trigger Brexit.

We see "no legal exit" from the High Court's argumentation and judgment.

The BBC News earlier already reported on the judicial process to come at The 11 Supreme Court judges who could rule on UK's Brexit appeal [hat tip to CaryGEE] and more recently reported on the court's Brexit hearings under the misleading headline: Supreme Court Brexit case: 'No need' for MPs to get final say.

Well, the case is by no means decided yet and "need" has nothing to do with it. The correct headline should have been: Supreme Court Brexit case: Does UK constitutional law require Parliament to have the final say?

The Brexit case puts squarely to the test the system of checks and balances that define the separation of powers among the executive, legislative and judicial branches of government.

What the Supreme Court of the United Kingdom is now considering is an appeal from a High Court judgment of 3 November 2016 [The High Court of Justice, Queen's Bench Division, Divisional Court, Neutral Citation Number: [2016] EWHC 2768 (Admin), Case No: CO/3809/2016 and CO/3281/2016] which found that rights conferred by Parliament in 1972 were likely to be affected by Brexit and that only Parliament therefore had the authority to act on the matter of a UK withdrawal from the European Union.

The High Court judgment reads as follows (as excerpted by LawPundit):

"(7) Our decision on the legal question
[larger text as emphasis added by Law Pundit]

[Our] view is reinforced by reference to two constitutional principles.

(c) The principle that the Crown [LawPundit: "Crown" here means the executive branch of government] cannot use its prerogative powers to alter domestic law [block emphasis added by Law Pundit] 

First, the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers is the product of an especially strong constitutional tradition in the United Kingdom.... It evolved through the long struggle ... to assert parliamentary sovereignty and constrain the Crown’s prerogative powers.... As Lord Browne-Wilkinson put it in  
R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 AC 513 at 552E:

"It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body."

Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.

Moreover, the status of the ECA 1972 as a constitutional statute is such that Parliament is taken to have made it exempt from the operation of the usual doctrine of implied repeal by enactment of later inconsistent legislation: see Thoburn v Sunderland City Council, at [60]-[64], and section 2(4) of the ECA 1972. It can only be repealed in any respect if Parliament makes it especially clear in the later repealing legislation that this is what it wishes to do. Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.

(d) The Crown’s prerogative power operates only on the international plane [block emphasis added by Law Pundit]

The second principle is the well settled limitation on the constitutional understanding that the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers.... It is precisely because the exercise of the Crown’s prerogative powers in the conduct of international relations has no effect in domestic law that the courts accept that this is a field of action left to the Crown and recognise the strength of the understanding that it is not readily to be inferred that Parliament intended to interfere with it. But the justification for a presumption of non-interference with the Crown’s prerogative in the conduct of international affairs is substantially undermined in a case such as this, where the Secretary of State is maintaining that he can through the exercise of the Crown’s prerogative bring about major changes in domestic law.

For this reason, it is our view that the decision in ex p. Rees-Mogg, on which the Secretary of State sought to place considerable weight, does not provide guidance in the present case....

In the very different context of the present case, the question is whether the Crown has power under its prerogative to withdraw from the relevant EU Treaties where such withdrawal will, on the Secretary of State’s argument, have a major effect on the content of domestic law. It is clear that the court in ex p Rees Mogg did not touch on that question.

(e) Our conclusion as to Parliament’s intention [block emphasis added by Law Pundit] 

Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU."

Is there a "legal exit" for "Brexit" other than through Parliament?
We think not.

In any case, the Supreme Court of the United Kingdom will decide.

For Brexit supporters -- who may rightly worry that the court will determine that only Parliament can "trigger" Brexit -- they should note that it will be a decision not made by the European Union or by any outsiders, but rather very much by one of its own three principal institutions of constitutional democratic government. Take a look again at "home-based" Eleven Supreme Court Justices.

That is what checks and balances and the separation of powers is all about.

Ultimately, of course, the PEOPLE decide, but the legal processes in place that are required to be followed, must be followed.

A referendum can be an important indicator of the wishes of the people, but it has no force of law, and, indeed, is a only a momentary indicator of what people are thinking at the time of that referendum.

Given the many negative things that have happened to UK fortunes in the interim, especially on the financial side, it is indeed even likely that yet another referendum on the same question would currently probably give a different end result -- even if the vote were close.

There is good reason why democracy is based on representative government, i.e. people who are elected to serve for extended periods of time, rather than on having a direct popular vote on every governmental question. Representative government provides continuity of policy. Direct popular voting on every governmental question would be ephemeral and lead to boundless chaos.


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