Brexit England European Union Politics

A Victory For Democracy

The High Court Judgement reaffirms our democracy.

Dan Peacock

Naked Politics Blogger

“Brexit means Brexit”

In other news, quantum physics means quantum physics.

And cake means cake.

What these three statements have in common is that they are all utterly vacuous and unhelpful.

The dark comedy that is Brexit witnessed another significant development this week. The UK High Court has ruled that the decision to activate article 50 – the legal mechanism that needs to be triggered to exit the European Union – has to be taken by Parliament.

This is significant. In essence what this means – to the abject horror of certain brexiteers as demonstrated by the disgusting, petulant, ad hominem, slanderous and borderline illegal attacks upon the three judges who made the ruling – is that the nature of our exit from the EU will be subject to a long-forgotten, ancient practice called ‘reasoned debate and discussion’. This is not the end for Brexit, as some of the hyperbole suggests. It is exceedingly unlikely that Parliament will block our exit completely. However this decision has ensured that our break-up from the EU will not be as quick, clean and simple as many had hoped and will almost certainly not be begun as soon as March 2017.

To put it another way, whereas before we were planning on dumping the EU by text without any consideration of the consequences and fall-out, we will now be taking it out to Pret a Manger (or maybe not..) buying it its favourite coffee and explaining in a reasoned and heartfelt way why we are leaving it and thus minimizing the hurt caused and ensuring there is a good chance that we shall remain friends.

And whilst we are all picking up the millions of dummies that have been spat out since the ruling, let me tell you two reasons why this was absolutely the correct decision.

The first reason is legal. I am no lawyer or expert in the UK constitution, but the legal reasoning behind the decision appears fairly watertight. Put simply, the core principle underlying the UK’s unwritten constitution is ‘Parliamentary Sovereignty’. What this means is that when it comes to passing and changing domestic policy and law, Parliament has the last word. Always. Not the government, the judiciary, the Prime Minister, the Queen, Simon Cowell, but our elected Parliament. Not even a referendum – which is merely advisory and not binding in any legal sense.

This core pillar has evolved over many hundreds of years of history and is not disputed. In fact, it has been hard won with the blood of many against the excesses of tyranny. Consequently, only Parliament can pass laws, and only Parliament can repeal, change or amend said laws. The government has certain executive powers called the ‘royal prerogative’ that it can appropriate to bypass Parliament, but these powers only concern issues unrelated to domestic law, such as international relations and – due to the sacred nature of parliamentary sovereignty – are very rarely used. The royal prerogative cannot be used to repeal legislation. Only legislation can do that. The judges had to therefore consider whether the royal prerogative could be used on this occasion to trigger article 50.

This is of critical importance when it comes to Brexit. As the Leave campaign was at pains to point out, EU law currently forms a part of domestic law. When the UK first joined what was then called the ‘European Economic Community’ in 1972, it was an act of Parliament – the European Communities Act – that sanctioned our joining of this union and saw EEC law become UK law. Leaving the EU entails by definition the repealing of this bill. As Parliament passed the bill that took us into the EEC and made European law British domestic law, only Parliament can repeal it. In short, Parliament took us into the EU, and consequently only parliament can take us out. The logic is simple and fundamental to the British constitution.

All the High Court has done has affirm and uphold this core principle of British constitutional law. And besides, as James O’Brien of LBC eloquently pointed out, the Leave Campaign wanted British law interpreted by British judges. And this is exactly what they have got. As I was instructed on June 24th by exuberant Leave voters: “Just accept the result and stop being a sore loser”.

Moreover, if you would rather live in a country where the judiciary is influenced by the desires of politicians, you can be my guest. Just don’t expect it to be much fun.

The second reason is democratic. When we took to the ballot paper on June 23rd, the question posed on the slip stated: “Should the United Kingdom remain a member of the European Union?”.  A slim majority of the population decided that we should not, and despite wishing the contrary – this cannot be disputed. We have made our intentions clear and set the direction. I am sure Parliament will respect this.

However a ‘leave’ vote was inevitably going to raise further, far more complex and technical questions regarding the nature of Brexit. What will it look like? Should it be ‘soft’, ‘hard’, transitional or swift? Brexit does not simply mean Brexit. We are going to leave the European Union, but this could manifest itself in a million different ways. These questions are vital and need answering. Neither were they for us, the UK public, to decide. If they were, the government had either forgotten to ask us or omitted to adequately expand on the initial question asked. In the absence of such questions on the ballot paper on June 23rd or a follow up referendum, someone needs to make these decisions on our behalf.

But who should be granted this responsibility? This was the question essentially at stake as the High Court made its decision.

Before the High Court ruling, these decisions were being made brazenly, whimsically and without any degree of broad consensus by a collection of opportunists within the executive lacking any popular democratic mandate, who were determined to make their own personal fantasy of a ‘hard Brexit’ a reality without any recourse to public debate, scrutiny or consideration.

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But now the High Court has spoken, these pivotal questions that will determine my future, your future, the country’s future and the future of generations to come will be unpacked, debated, scrutinised and answered by our elected parliamentarians and settled by a majoritarian vote. Given that the UK is, believe it or not, a representative democracy, this will ensure that my voice, your voice, the voice of the 48% who voted to remain and the voice of leave voters will be heard during this historic and defining process.

And I, for one, am delighted.

What a fantastic victory for democracy.

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