A British High Court ruling last week found that the government does not have the power to begin exit negotiations from the EU by invoking Article 50 without parliamentary approval.
It was known before the EU Referendum took place that the referendum result was advisory and that any outcome would therefore still need to be discussed in parliament. The Government could have made the referendum binding by making legislative changes prior to the referendum if they had so wished, but they chose not to. Instead Theresa May has tried to press ahead circumventing the law and hoping that she and just a few of her colleagues, alone, behind closed doors would be able to make decisions on behalf of the entire UK about the terms of leaving the EU without parliamentary scrutiny or debate.
The High Court ruling said that not involving parliament in the decision would be against a four centuries old established legal tradition. In a 32-page decision, Lord Chief Justice John Thomas and two senior colleagues, argued that some of the fundamental principles of the British constitution are at play, notably the respective roles of parliament and the Crown — the executive power wielded by the monarch in previous centuries and now exercised by Theresa May’s government.
Key points from the ruling found that the sole question in this case is whether, as a matter of the constitutional law of the UK, the Crown — acting through the executive government of the day — is entitled to use its prerogative powers to give notice under Article 50 for the UK to cease to be a member of the EU.
Virtually everyone in the UK or with British citizenship will have their legal rights affected if notice is given under Article 50.
It is common ground, the ruling said, that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme.
There has been a huge back-lash, to the court ruling, not least from the right-wing press against the independent judiciary, with the Daily Mail referring to the judges that ruled on the case in a front page splash as “Enemies of the People”. The UKIP leader Nigel Farage stoked up anti rule of law sentiment when he announced his plans to lead 100,000-strong march on the Supreme Court in protest at the decision.
Instead of defending the independence of our judiciary, cabinet member, Sajid Javid, ominously stated that “This is an attempt to frustrate the will of the British people and it is unacceptable”.
And in our constitution, when judicial independence is threatened, the Lord Chancellor has a legal duty to intervene. Liz Truss, however, failed to say anything for nearly 48 hours and when she did, she simply recited the principle of the independence of the judiciary and stated the government would be appealing against the judgement. She did not condemn the fact that our judges had been declared “enemies of the people”, nor that the sexuality of a judge had been introduced in to the debate.
You can read Emma’s question and the Secretary of State’s response here.
Speaking afterwards Emma said,
“The Secretary of State’s response to my question was poor. I am not trying to stand in the way of invoking Article 50 but I do have concerns over why this Government were not clear with the public from the outset that Parliamentary approval would be needed to invoke Article 50.
Because they failed to do that and instead have created confusion and anger, the Government are now wasting more tax payer’s money on an expensive appeal. What’s more they are undermining the independence of our judiciary and have done nothing to stem the tide or condemn those attacking the fundamental rule of law in our country.
It is vital to our democracy that parliament should be able to debate and decide on the details of the biggest decision affecting our country for decades to come.
It’s the process that is quite rightly in question. It must be done in accordance with British law and the sovereignty of parliament, two principles which were particularly important to many people who voted to leave
Instead of discussing these matters in parliament the Tories are focusing all their efforts into blocking debate. This can only be because they are afraid to debate in parliament because the real truth is they either have no plan or the plans they have will be detrimental for Britain. I will continue to fight for the best Brexit deal for my constituents.”