The Constitutional Implications of the Article 50 ruling
Our previous post (November 12th) briefly reviewed the key reasoning behind the High Court’s ruling (November 3rd) against the Government’s being able to trigger Article 50 of the Lisbon Treaty without explicit Parliamentary approval. This is the only EU-mandated way of leaving the EU, although as stated in my book, “Britain’s Referendum Decision and its Effects (BRDE) the Vienna Convention on the Law of Treaties (VCLT) Articles 65-68, sets out procedures for withdrawal after a minimum of 3 months’ notice to the other signatories (27 in the case of the EU). Doubtless the UK Courts would try to block this also on the same grounds that it does not have explicit Parliamentary approval.
Much of the High Court 3MB judgement is concerned to emphasise that Statute Law is supreme and the Government, acting under the Crown Prerogative, cannot take away “rights” conferred on British residents by Acts of Parliament. The chief source of the rights affected by our departure from the EU, their Lordships contend is the European Communities Act (ECA) 1972. The Court asserted that the ECA was in effect part of the British constitution and any Act subsequent to 1972, which limits in any way the effects of the ECA on British citizens would be unlawful unless it were repealed. This was the basis of the 1989 judgement in the Factortame case which set aside the provisions of the Merchant Shipping Act (1989). The High Court in the Article 50 case refers at length to this 1989 judgement in support of its own (November 3rd) judgement. The Merchant Shipping Act was passed by both Houses of Parliament nem con. At the time the Thatcher government, besieged by protests against the Poll tax (the Community Charge) and in the process of committing 40,000 plus troops to help the US expel Iraqi forces from Kuwait, let the issue go. Spanish and French fishermen have continued to take fish from British internationally agreed waters unhindered ever since.
The Referendum principle in the British Constitution
The Referendum Act 2015 passed by a majority of six to one in the House of Commons, specifically passed the decision on UK membership of the EU to the British people through the mechanism of a nation-wide referendum. Nonetheless, although the rest of the world takes this as read, the High Court judges in their November 3rd judgement refused to accept this – repeatedly saying that the Referendum was only “advisory” and of no account in Law, referring back to Sir Edward Coke’s famous and much-quoted judgement of 1613: “quod rex non debet esse sub homine, sed sub Deo et lege” usually rendered as “the king ought not to be under any man, but under God and the law”.
Since 1973 there have been four referendums in the United Kingdom on issues directly affecting people’s national status: the positions of the UK in the EU; the position of Northern Ireland, and Scotland within the UK. There has also been one on the voting system for UK elections.
There have also been four referendums in Scotland and Wales on whether there should be devolved governments; two on the powers of these governments; and one on the form of government in Northern Ireland. In 11 out of the 12 it has been universally assumed that the electorate’s decisions were decisive not advisory. The UK government of the day set about implementing these decisions (where needed – as in setting up legislative bodies) with no vote taken in Parliament to decide whether they should implement these decisions (even though there may well have been a majority of MPs in Parliament against the results of one or more of the referendums).
In other words, the votes of the people in these 11 referendums have been taken to be supreme over Parliament in these matters.
The one exception to this rule has been made by the three High Court judges on November 3rd with their insistence, quoting Sir Edward Coke’s 400 year-old dictum, that Parliament is supreme in all matters pertaining to the laws of the Kingdom, both statute and common.
But it is clear from the precedent of the 10 other referenda going back 43 years, that a direct vote of the people in the nation concerned trumps Parliamentary law. Parliament has accepted that law has to be changed to reflect that reality. It is a reality unknown to Coke, but who knows what its view would have been had he been alive today?
Would Coke, as a noted English patriot, have accepted that his dictum would have been used to obstruct the negotiation of a Treaty, the intention and effect of which will be to remove foreign law’s precedence over English law?
What should the Supreme Court do when it hears the government appeal against the High Court judgement of November 3rd?
Answer: It should bow to the reality that times have changed since 1613 and that the decision-making Referendum is now an established part of the British constitution binding on Parliament as it has been for years in other parts of the Queen’s Realms – Canada, Australia, New Zealand (on Québec separation, Australian republic, New Zealand national flag).
The Supreme Court could use its powers to pronounce as much, in effect adding to the Common Law to reflect the new reality (for which it would be famous), reversing the High Court’s decision and allowing the Government to proceed with implementing the people’s decision on June 23rd 2016. Clearly a future government must put the supremacy of national referendums beyond the reach of the Courts, into statute Law.
 In my book BRDE, I say that in the event of a Leave vote, the ECA should be repealed as the first act of the post Brexit government (Chapter 10.3.3).
 Nemine contradicente “with no one voting against”.