Analysis: Why High Court got Brexit decision wrong

UPDATED: In its controversial ruling on Brexit, the HIgh Court misunderstood the relationship between parliamentary sovereignty and the status that parliament had granted to the referendum. This ruling can and must be overturned. Here's how

Tipping the scales back to Brexit
the commentator
On 4 November 2016 08:35

On Thursday, the High Court in London ruled that parliament, not the government, must have the final say in triggering Britain's exit from the European Union following the June 23 referendum.

Having read the ruling in full, we believe that it is fundamentally flawed, and that it can and should be overturned in the Supreme Court.

In a nutshell, the High Court ruled the way that it did because it held that the most fundamental principle of British constitutional democracy and the rule of law was "parliamentary sovereignty". While government can act independently on matters of international law -- treaties for example -- power remains inside Parliament where matters of domestic importance are concerned.

Since membership of the European Union has major implications for domestic rights and laws, only parliament can make the final decision on whether to leave or whether to stay.

It is when the ruling comes to the question of the referendum and its meaning that we see how deeply flawed this judgement is, and also how the government put the wrong case to the court.

Paragraph 150 states that counsel for the Secretary of State (ie the government) "did not contend that the 2015 Referendum Act supplied a statutory power for the Crown to give notice under Article 50. He was right not to do so."

In the following paragraphs, the High Court said that this referendum (like any other) was only advisory to parliament "unless very clear language to the contrary is used in the referendum legislation.."

In addition, a briefing paper to parliament made clear that the referendum was only advisory. In any event, there would be so many issues to resolve about the process of withdrawal that parliament must have appreciated that the referendum was merely advisory.

It is on this question that everything else turned, and it appears that the government dropped the ball. Here's why.

First, while the 2015 Referendum Act did not specifically state that the referendum was binding, the purpose of the referendum was billed by all sides as the place at which the decision on Britain's membership of the European Union would be made. There would have been no point in calling a referendum if its result was not intended to be respected. The government could have hired focus groups.

The High Court missed the point here.

Second, the referendum does not contradict the principle of parliamentary sovereignty since it was parliament itself that passed the bill enabling the referendum to take place. Parliament transferred its power to the people so that they could make a decision on parliament's behalf. This was clearly understood at the time. The HIgh Court missed the point on this too.

Third, in invoking the briefing paper --  European Union Referendum Bill 2015-16, House of Commons Library -- the High Court refers to a paper that in one crucial respect undermines its own ruling.

This is from the section entitled, Types of Referendum:

"It [the referendum] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions."

See what the High Court got wrong? The wording does not say that the result of the referendum is designed to influence parliament, it says it is designed to influence "the Government".

The reason why it says that is that it was widely understood that parliament had indeed transferred its sovereignty to the people, and that it would then be up to the government (ie. not parliament) to take the process further, and implement the will of the people.

If the government takes this argument to the Supreme Court, it has a realistic chance of winning, and putting Britain back on track for Brexit.

UPDATE: Here is another excellent point raised by the Telegraph:

"Into this constitutional quagmire the High Court unwisely strayed this week, ruling that the Government did not have the power to use the Royal Prerogative to trigger the process to leave the European Union. Yet it is also long established in legal precedent that the courts do not have the power to order Parliament to introduce and pass a Bill, which appears to be the upshot of the judges’ decision on Wednesday. This is a stand-off which the Supreme Court would do well to resolve by overturning the lower court’s ruling next month".

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