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British Exit, Royal prerogative power and a High Court decision (under appeal) by Paul McNulty, Lawyer

As many of you are aware, the United Kingdom voted to leave the EU in June. This vote will have an impact on Ireland in a large number of different ways. Some are obvious i.e. Northern Ireland, trade etc and some are unknown i.e. the impact on the E.U. U.K-Irish relations etc

So arising from this I have decided to write about the recent decision from the High Court in England and Wales on the right of the UK government to invoke prerogative powers when initiating article 50 of the Treaty of the European Union.

In 17th Century a civil war broke out in Ireland and the United Kingdom and one of the reasons for the civil war was the issue of prerogative power of the King. The monarchy believed that the prerogative power should be retained and prerogative power would have allowed the King or Queen to interfere with legislation enacted by parliament and with the common Law.

The outcome of the Civil War was that the parliament was solely responsible for the passing of legislation and that the Crown could not interfere with common law or statute law.

Alas despite the civil war and the victory of parliament over the Crown, there was no attempt to put these principals into written form and as a result, the United Kingdom has no written constitution.

When the Tory government under Prime Minister David Cameron sought to bring a referendum before parliament, the Act stated that the referendum was to be advisory. This arises as a result of the fact that referendums are not part of the constitutional law of the UK. I believe there has only been one previous referendum prior to the British Exit vote in June and that referendum related to whether the UK should remain in the European Union. It was held in 1975 by the then Labour government of Prime Minister Harold Wilson

The government of Prime Minister Theresa May has insisted that when it invokes Article 50 of the Treaty of the European Union it does not need to consult parliament and is entitled to use its prerogative power which now resides with the Executive branch of government.

A number of individuals brought a High Court action seeking that the Executive/government would consult parliament prior to initiating Article 50 Treaty of the European Union

On the 3rd of November the three divisional Court gave judgment in this case. The judges that heard the case were the Chief Justice Lord Justice Thomas, Sir Terence Etherton, the Master of Rolls and Lady Justice Sale. The Chief Justice and the Master of Rolls are the two most senior Judges in England and Wales.

In its judgment the High Court acknowledges at the start of its decision that it does not seek to circumvent the decision made in the referendum in June and that the sole purpose of the case was to determine whether the government could use prerogative power to invoke article 50 of the Treaty of the European Union.

The main argument raised by the Secretary of State for Exiting the EU was that the European Communities Act, 1972 was an International Treaty entered into between the United Kingdom and the European Union and that parliament when enacting the Treaty in primary legislation under the European Communities Act, failed to nullify the use of prerogative power.

The essence of the argument put forward by the Secretary of State was that the European Communities Act was an international treaty and the Secretary was entitled to rely on prerogative power to invoke article 50, as it was an international treaty and as a result the government could unilaterally invoke article 50 without consulting parliament.

Arising from this argument presented on behalf of the Secretary of State to the court, the government was entitled to amend any all EU legislation unilaterally without the need to consulate parliament.

Essentially, the Secretary of State was arguing that the Crown could unilaterally alter the EU legislation in areas of employment law, environmental law etc without consulting parliament thereby changing the law at a whim or the whim of the government of the day.

The two most senior judges in the UK and Lady Justice Sale found that Secretary of State did not have prerogative power and therefore must consult parliament prior to initiating article 50

In the judgment the Chief Justice viewed the Secretary of State’s argument as completely flawed. Judges hardly, if ever, state in a judgment that the arguments advanced are flawed. They may disagree with them but to use the word “flawed”, it clearly indicates that they have taken a dim view of the arguments presented by the Secretary of State.

The High Court, in a well reasoned judgment, stated that European Communities Act, 1972 was implemented into domestic law in legislation enacted by parliament. The Court further highlighted that the UK implemented EU directives via legislation and that EU law took precedence over UK legislation.

The decision of the High Court can be summed up in the following quote:

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.”

Aside from the judgment I would like to make a couple about the reaction to the judgment.

Despite the well reasoned judgment by the High Court, some of the British establishment vehemently condemned the decision. The smears and innuendo regarding the sexual orientation, religious orientation and privilege of these judges was an attack on the rule of law. If someone has a difficulty with a decision, they can appeal the decision to a higher court. However, it is completely unacceptable to abuse a judge for his religious or sexual orientation when the judge is simply applying the law or for the simple fact that you disagree with the courts decision.

As previously iterated above, the judgment clearly stated that it was not seeking to overturn the referendum vote but was solely deciding whether prerogative power could be used.

The failure of the British Prime Minister and the Lord Chancellor (Minister of Justice) to issue a statement in defence of the judges and to uphold principle of the rule of law was an utter disgrace. To so fragrantly ignore these attacks of the judges and on the judiciary undermines the rule of law. The language used was despicable and in one particular instance the front page included pictures of the judges under which was stated that the judges were “enemies of the people”. If the rule of law is undermined, then every citizen will be entitled to challenge decisions made by the judiciary that they do not like.

An independent judiciary is fundamental to democracy and allows citizens to take proceedings to uphold rights given to them via the constitution, via common law and via legislation. Undermining the judiciary is setting a dangerous precedent and must be stopped before any more damage is done.