Much argument has been made already over the recent delivery of a judgement in the Article 50 case, on whether the judgement is right or wrong, or whether it turns its back on popular democracy.
But for me the most important argument has been missed – that this judgement proves yet again exactly why the case for Brexit was unassailable on purely constitutional and democratic grounds
The judgement shows us that the EU treaty is not like other treaties, even those which convey rights on the UK citizen. Recent legislation sets out the process by which Treaties must be ratified by Parliament, but is silent on the manner by which governments may withdraw from them. This judgement might have been used to attack the premise of Royal Prerogative in principle as it could have argued that all treaties are enacted by Parliament through a vote. But the legislation on ratification (2010 Constitutional Reform and Governance Act) does not force government to enable treaties through legislation, thereby creating UK Law – the ratification process creates no new legislation for which there must be repeal.
This clearly signals the intent of Parliament NOT to erode the nature of Prerogative by making all all treaties part of the UK legislative body, thereby requiring a Legislative process for repeal.
So why is this so different in the case of the EU? I’m a little at odds with the argument of the court, in that they concentrate so heavily on the issue of ‘Rights’ conveyed by by the 1972 Act rather than the issue of the Act itself. This is I think, because of the nature of the submissions from both sides, which of course raise rights as the issue.
The main thrust has weight though. It looks at the chain of events that must surely follow if the words of Article 50 itself are enacted correctly: That once there is a letter of notice then the process of leaving is started, and that there is no ability for the nation to halt this process entirely of their own volition. This means that there is effective repeal of the parts of the 1972 Act which enable other UK legislation (and the rights conferred therein) without express repeal of those clauses by the UK Parliament. This is why in essence, a Repeal Act for a great many issues will be necessary at the end of the negotiation process.
The point though is clear – Only Parliament may repeal legislation once it has enacted it. It cannot be done by Royal Prerogative. Article 50 Notification puts in chain an irreversible process that ‘In effect’ repeals parts of the 1972 Act, simply because the wording of Article 50 gives no power of the state to withdraw notice.
Why this proves the constitutional case for Brexit
When the Lisbon Treaty was ratified in Parliament, in no way was this issue publicly discussed. While there was note of the new ‘Process for leaving the EU’, there was certainly no discussion of the matter of ‘irrevocable notice’.
Even the government’s lawyers thought that this was a case that they could win. I was quite confident until I read the judgement that even if the government lost at this stage it would win on appeal. It won’t, the judgement might be an imperfect one, but it will stand, and it should. Executive power should be limited.
But this judgement exposes the uncertainty in Law that has rarely existed in British history until our entry into the European Community via the 1972 Act. The implications of changes in EU law is that each change may give rise to domestic effect without the direct participation of Parliament, but with its tacit legislative approval via an act written in a time in which the depth and scale of the European Project was not understood.
Where does this leave the citizen at Law? Largely he must be confused, because he may no longer be certain of the law even as it is written in statute and in previous case law. The Rule of Law is one of the most fundamental principles of the UK Constitution, and forms the part of the bedrock of the rights of the Citizen to parity and fairness before the state. The degree of complexity and conmpeting sources of law now subvert the Rule of Law into being the Rule of Lawyers, in that it is made more difficult for even the legally educated to absolutely certain where one right ends and another begins.
Constitutionally then, the words of Lord Denning at the time have clearly come to pass, in that EU law would flow into domestic law like the tide and differentiation would then become impossible.
In effect, for the Citizen at Law, the EU has already become ‘One Country’ – for he can no longer exercise many of his rights without encountering its legal tentacles.
Complexity is the friend of the Lawyer, and the Judge. It gives both power (and makes Lawyers rich). Even in Shakespeare’s time lawyers were looked upon in unfriendly terms as the confounders of the people – as Dick utter the immortal line in Henry the VI when planning his utopian society: “The first thing we do, Let’s kill all the lawyers!”.
Law is necessarily complex, as legislation attempts to cover a multitude of eventualities. But in general terms it is at least certain, in that once it has been interpreted by either conventional use or the courts, then the citizen can rely on this.
But of course, the layer of complexity added by of the system of directives in the EU helps to tip the Rule of Law into being the Rule of Lawyers. If Complexity is the friend for the lawyer, uncertainty is his mistress.
Nowhere is this better illustrated than in our own ‘Human Rights Act’ which is in effect a piece of ‘EU style’ legislation conferring rights on the Citizen. It simply moved ability of the UK courts to do what the ECJ would have done previously.
The confusion that this causes to the law can be seen in the range of cases brought on Human Rights Grounds in the domestic courts. No longer is law certain – where does my right end and yours begin? The courts often then become the arbiter of this. This is a largely alien concept in UK law , and removes certainty.
Even Parliament in writing law has fallen foul of the the EU’s legal powers. The Merchant Shipping Act is perhaps the most famous legal case (leading the the Factortame cases), but is far from a unique one.
Because UK law must be compliant with EU, then arguments arise even after the drafting and passing of UK Legislation as to whether this is in fact the case. This leads to further uncertainty in the law, because even the legislation as enacted might fail to be carried in its intent or letter by the UK courts, if it could be interpreted as non compliant or Parliament’s intent becomes non compliant to future EU Law. Politically then, it shows the power that has been eroded from the legislature of the UK and handed to the EU, in that its will is no longer paramount. If Parliament, as a representative democratic instrument, no longer has this primacy, then we the people no longer have that implied democratic primacy either. It has arguably been one further step removed from us.
This is the principle reason for which I fought the EU Referendum campaign on the Leave side. While I had always been sceptical of the benefits of membership, it was my study of law in the late 1990’s that convinced me that the UK was wholly incompatible with the EU. The principles of UK Law and historical evolution of democracy was at odds with the corpus of the rather more ‘Napoleonic’ EU law. Conflict and uncertainty were inevitable. The further the project moved to completion the more fundamental the clash would become.
The principle that all is permissible except that expressly forbidden by law, ensures to a degree the freedom of the individual from oppressive government. Many EU countries take an opposite view, that only that which is conferred on the citizen is a right.
The Westphalian principle of non interference in the domestic affairs of other states is of paramount importance also. Nation states comprise themselves of people largely of common cause and culture, even if that common cause is adopted by the course of immigration. Democracy is difficult enough to protect even in that purest circumstance, but in a state of 500 million people with no common cause, it is impossible. While there will always be co-operation between states and there will always be international regulation on issues such as trade, the individual should always have certainty in his own domestic law, passed by those who should fear him directly – the elected legislative.
If there was ever any doubt, this judgement proves the validity of the case for Brexit.