Process not Politics

24 January 2017

Cogito Ergo Non Serviam

UK Supreme Court Says Parliament Must Enact Brexit Legislation

The government of Teresa May lost an appeal to the highest court in Britain and is now required to get an Act of Parliament passed in order to begin the British exit from the European Union. At the same time, the court held that the devolved legislatures have no say in the matter. This means that the March 31, 2017, target date for invoking Article 50 of the Brussels Treaty, by which a member can leave the EU, remains in place. The decision addresses process and not politics. The Tory government has the votes to ram through the needed legislation. While it may be viewed as a waste of taxpayer money, the case settles serious constitutional matters.

At the heart of the issue was the 1972 legislation that took the UK into Europe. It established the process by which European law becomes part of British law. It was, therefore, a constitutional matter, and what Parliament enacted in 1972 could only be undone by Parliament in 2017. Some kind of Act is necessary. However, the government argued that the legislation that established the Brexit referendum was all that was needed, that Parliament had already enacted what was needed.

Supreme Court President Lord Neuberger said in reading out the decision, "By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so." He also said, "Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights. The UK's constitutional arrangements require such changes to be clearly authorised by Parliament."

Ramming through a short bill that merely says, "The government is authorised to trigger Article 50 of the Brussels Treaty,"should be easy enough. The Tories have the votes in Commons and in Lords. Labour leader Jeremy Corbyn has said his party won't interfere with the legislation, but it will offer amendments to "prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe." The Liberal Democrats will vote against the bill unless it includes language requiring a second referendum to ratify the final agreement with Brussels. Meanwhile, the Scottish National Party will offer numerous amendments that probably won't pass but will take up time.

This is small potatoes, though, compared to what the court prevented when it decided, "Relations with the EU are a matter for the UK government." That means that the Scottish Parliament and the Welsh and Northern Irish assemblies cannot derail the process. Had the court gone the other way on this, approval might not be coming. Laura Kuenssberg of the BBC blogged, "The justices held back from insisting that the devolved administrations would have a vote or a say on the process. That was, as described by a member of Team May, the 'nightmare scenario'." Scotland under the SNP would simply not approve of the withdrawal.

This decision was about process rather than politics. One of the campaigners against the government, hairdresser Deir Tozetti Dos Santos, said, "The court has decided that the rights attaching to our membership of the European Union were given by Parliament and can only be taken away by Parliament. This is a victory for democracy and the rule of law. We should all welcome it."

Constitutional matters are inherently messy. The court did the country, and the world, a service in ruling that clarity requires a new Act. Voices will be heard, votes will be recorded. The decision of the people in the referendum will go forward as planned, more or less. While Britain is about to do a damned silly thing, at least it won't be doing it in a damned silly way.

© Copyright 2017 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.



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