The Court deserved a say—but its reasoning was flawedby Adam Tomkins / November 7, 2016 / Leave a comment
The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. Some of the press coverage of the decision has been deplorable. There is nothing—nothing at all—in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. To rule on such matters is emphatically the courts’ job. For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and parliament. But this is no such case. The court has done nothing improper and those who sit idly by whilst others who should know better castigate the judges for doing their job should be ashamed of themselves. We are a country that abides by the rule of law, and we should act like it.
All of that said, as a lawyer I think the court’s ruling is wrong. What follows is a pretty technical legal analysis of why I think so. This is not a party political intervention, and nor is anything in this post informed by the fact that on 23rd June I voted to “Remain” in the EU.
The issue to be resolved in the case is simple to state. It is whether government ministers have the legal power to trigger Article 50. This is not a question of European law. It is a question of UK-wide constitutional law.
If the answer to the question is yes, the power that ministers have to trigger Article 50 would be a prerogative power of the Crown—the prerogative power to make and unmake treaties. If the answer is no, then parliament would have to pass a statute to confer such a power on ministers.
More specifically, the question is whether ministers can trigger the beginning of the Brexit process without further parliamentary enactment. The question is not whether ministers could conclude that process without further parliamentary enactment, something nobody serious is suggesting they could do. In other words, the live…