Constitutional and EU law specialist Professor Sionaidh Douglas-Scott responds to high court ruling that parliament must vote on triggering Article 50.
3 November 2016
This judgement can be seen as a victory for Parliament. During the EU referendum, voters were constantly urged to ‘take back control’ and regain Parliamentary sovereignty from the EU. Yet in what sense is Parliament taking back control, if the government is able, using its ancient prerogative powers, to manage the whole EU withdrawal process without any significant parliamentary involvement? That would be extremely undemocratic, and democracy is what we are constantly told the EU referendum was about.
Furthermore, the Court’s judgement makes clear that exclusion of Parliament in the Article 50 process is not only undemocratic, it is illegal. There is a wealth of case law supporting the claimants’ case, some of it dating back to the 17th century and the time of the English civil wars. These wars, and the ejection of two kings, established that Parliament is sovereign and the Executive cannot ignore it, where it has no legal authority to do so. This judgement makes clear that the government does not have any such legal authority in the context of triggering Article 50.
Last but certainly not least, this judgement also makes clear the importance of rights in the Brexit process. Much of the judgement concerns legal arguments over the European Communities Act 1972, which can seem rather arcane. Yet they are of vital importance to every citizen. Through the European Communities Act, every UK national has been endowed with rights under EU law – rights of free movement and residence in other EU countries, but also many other types of rights, such as employment rights, consumer rights, or rights to information. Some of these rights will vanish altogether as a result of triggering Article 50 and the withdrawal process. The Government has said it will transfer some EU law into UK law through a ‘Great Repeal Bill’ and then decide in future whether to retain them or not. Today’s judgement makes clear that decisions that inevitably remove rights may not be taken by the Executive alone. Parliament must be consulted. This is to be welcomed. One of the most unsettling aspects of Brexit is the potential loss of so many rights. It cannot be so that this decision would be one for the Government alone.
As I write this, a government spokesperson has said the Government will appeal this decision, in which case it will be fast-tracked and heard very quickly by the UK Supreme Court. Yet today’s ruling is a very strong judgement, by an extremely powerful trio of judges including the Lord Chief Justice. Its reasoning looks compelling and hard to overturn.