The Royal Prerogative

4 Nov

In the UK we live in a parliamentary democracy. We elect Members of Parliament (MPs) to represent our interests. Our best interests are not necessarily what the majority voted for. Our representatives are not our slaves. They are supposed to be the best of us, able to see further into issues than the average voter can. They must also represent the interests of all voters, even the ones who did not vote for them.

When questioned by pollsters recently a large majority declared that they do not want Britain to leave the Single Market. When presented with the option of leaving the EU and the Single Market or remaining in the EU, this same majority would wish to remain in the EU rather than have a clean break, the so-called ‘Hard Brexit’.

On the 23rd of June 2016, 52% of those who voted turned out to approve a simple binary question. Many voted to Leave because they thought it the safer option.  They were swayed or persuaded to vote in this way by the most mendacious campaign conducted in this country since Georgian times.

The European Communities Act of 1972 was passed in Parliament and enshrined some EU law in UK law. It also provides, in section 2(4), that all UK legislation, including primary legislation (Acts of Parliament) have effect “subject to” directly applicable EU law. This has been interpreted by UK courts as granting EU law primacy over domestic UK legislation.

In an interview with BBC News Theresa May promised that UK will introduce a bill to remove the European Communities Act 1972 (UK) from the statute book. In order to do this she needs to have a vote in Parliament to rescind the previous act.

The effect of triggering Article 50 of the Lisbon Treaty is irreversible. We then have a two year timespan to negotiate the legal and economic ties with the EU. These negotiations are between diplomats and civil servants, but their direction and outcome will not be affected in any way by our elected representatives.

Theresa May and the Brexit cabal within the government wished to trigger Article 50 by the use of the Royal Prerogative. That is an ancient right of kings which is rarely used.  The royal prerogative has been called “a notoriously difficult concept to define adequately”, but whether a particular type of prerogative power exists is a matter of common law to be decided by the courts as the final arbiter.

As the courts are the final arbiter, Theresa May has no right to use the Royal Prerogative. Moreover, by triggering Article 50 without a vote in Parliament she would effectively have rescinded an Act of Parliament (the 1972 Act), without obtaining the permission of Parliament.

The judgement yesterday could not have been clearer. It is difficult to see on what grounds the government can hope to succeed in any appeal to the Supreme Court. When they fail, which they will, they could take the case to the European Court, but somehow I don’t think that will happen.

In yet another supreme example of irony, the more literate Leavers find their wishes frustrated by the very arguments they made for wishing to leave the EU. They argued very vociferously for the primacy of the UK Parliament and Law Courts. Now they have it. You won, get over it.


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