Unless you’ve been out on the lash with Kim Jong-un and his “hangover-free” alcohol, you’ll have noticed the Government are in the Supreme Court this week, appealing the High Court ruling that Article 50 must be invoked after a vote through Parliament. If you look at the case on the surface, you’ll see a barrage of confusing jargon and arguments. Nobody seems to have a clue what’s going on and it seems like there’s no definitive answer to the question ‘can Government invoke Article 50 without consulting Parliament’ – the answer is yes, and I’m going to explain why in the simplest way possible.
The main buzzwords and things to focus on to why Government can invoke Article 50 without parliamentary approval are as follows; the Royal prerogative, the European Communities Act 1972 (ECA), conduit, domestic law, EU law and EU membership.
Let’s begin by looking at the argument for the case of parliamentary approval being needed to invoke Article 50. They argue that when the European Communities Act 1972 was passed through Parliament, that then in turn made us a member party of the European Union (at the time, known as the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community, but for sake of simplicity, I’ll refer to it as the EU from now on). They say that by Gov’t using prerogative to invoke Article 50, that therefore cuts through the ECA without parliamentary approval deeming it unconstitutional. If this was the case, yes, the Government losing the Supreme Court case would be justifiable. However, the assumption that the ECA made us a signatory of the EU is wrong.
The European Communities Act merely incorporates EU law into UK domestic law in order to meet our obligations that make us a signatory of the EU (or in other words a member of the EU). The ECA didn’t make us a signatory of the EU, prerogative made us a signatory and ultimately a member of the EU. This synopsis of the ECA aligns with the act itself. The ECA is effectively nothing more than a conduit – or a metaphorical tube where EU law passes into UK domestic law. So for example, if the ECA was passed into law by Parliament in 1972 but prerogative was not used to become a signatory of the EU, the UK would have not joined the EU. However, prerogative was used to become a signatory of the EU, therefore we can use prerogative to invoke Article 50. If the Supreme Court states in its ruling that prerogative shouldn’t have been used to make us a signatory of the EU, it is therefore ruling that we unconstitutionally entered the EU in the first place.
The Government can constitutionally invoke Article 50 without parliamentary approval, but yes, the European Communities Act 1972 can only be repealed by Parliament. This is expected to be done in the form of a ‘Great Repeal Bill’ which will scrap the ECA, absorbing parts into UK law whilst getting rid of other elements of it. So even though Government does have the constitutional power to invoke Article 50 without a vote in Parliament, we won’t truly be rid of EU law until we ditch the ECA. It’s also interesting to add that in the scenario that we do not invoke Article 50 but we repeal the ECA, we then effectively breach our obligations as a signatory of the EU and I would imagine that would via such a breach, end our EU membership anyway. On a personal now however, I think we should invoke Article 50 & use the ‘Great Repeal Bill’ method to ditch the ECA. Repealing the ECA without invoking Article 50 should be a last option in the case of a worst case scenario.
The facts are there to be seen but I’m still skeptical that the Supreme Court judges will just overlook such facts and assume the ECA is effectively our EU membership. I do think this is what they will do as so many people have no clue about the facts. We may have to rethink the form our constitution takes with regards to the framework for rule/law setting and the powers a body may or may not have – the unwritten constitution in its current form makes it a case of ruling on interpretation of the constitution rather than ruling on what is actually constitutional.
On a final but very important note, the media have so far behaved disgracefully in the reporting of both the High Court case and the Supreme Court case. The likes of the biased Robert Peston and Faisal Islam know full well that Government has the constitutional right to invoke Article 50 on prerogative but they are making out like the Government have no case without providing any evidence for such claims and without even going over the arguments and facts in full. Both want to see Brexit fail and both will abuse their positions in order to keep the facts from the public.