Three Judges v The People
Put simply: the royal prerogative can’t be used to take away the people’s legal rights.
When I see the picture of the three judges, the image that instantly springs to mind is that of the three monkeys.
People are angry, and quite rightly so, as many see it rightly or wrongly, as a crude attempt to subvert Brexit, and many who are applauding the judgement, clearly see it as an attempt to negate Brexit.
Paul Mason has done a wonderful hatchet job on The Sun front page, but a pity did not also take the opportunity to explain what the judgement by the High Court means or could mean.
We have a democratic deficit inside and outside of Parliament, the government out of touch with Parliament, Parliament out of touch with the people.
The High Court judgement was about the use of Royal Prerogative. It was not a green light to Parliament to negate Brexit.
We already have Owen Smith gagging at the thought of being able to derail Brexit, call a second referendum. He is doing an excellent job at volunteering for his own deselection.
Royal Prerogative, is the executive exercising power on behalf of the Monarch without the consent of Parliament.
We saw this with war criminal Tony Blair exercising the Royal Prerogative to launch an illegal war on Iraq.
On the other hand David Cameron chose to consult Parliament on whether or not to bomb Syria.
David Cameron set a precedent, now very difficult to wage a war, without consulting Parliament.
The judges ruled, Theresa May has to consult Parliament to trigger Article 50, she cannot exercise the Royal Prerogative and bypass Parliament.
This is in general is a good thing, the executive has too much power, overriding a weak Parliament.
Parliament will now, unless the Supreme Court rules differently, be able to scrutinise the terms of Brexit. This means Brexit still happens, we decide the direction of Brexit.
We decide what are the red lines that cannot be crossed.
- environmental protection
- employment rights
- free trade with EU
- rights of EU citizens to remain
- control of borders
It has not made Parliament sovereign. The people are sovereign. They hand power to Parliament to exercise on their behalf.
Three Judges:
It is agreed on all sides that this is a [legal] question which it is for the courts to decide … Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the UK from the EU or on government policy.
The Conversation:
That legal question was one of the most basic the courts must decide in any state in which the government, like the people, is subject to law: does the government have the legal power to do want it wants to — in this case, trigger the formal Article 50 process of withdrawing from the EU?
The court decided, unanimously, that the government lacked this legal power, because it is a basic principle of the constitution that the prerogative cannot be used to take away rights granted to citizens by parliament — and that is precisely what triggering Article 50 would do.
So this was nothing whatsoever to do with trying to stop the UK leaving the EU: it was making a purely legal finding about whether it is parliament or the government that can lawfully implement the decision to leave.
More broadly, what the court was doing here was upholding two fundamental pillars of the “unwritten” British constitution — the rule of law and parliamentary sovereignty. This means the government can’t use the ancient, residual prerogative powers it inherited from the Crown to take away rights parliament has put into law — or render nugatory an act of parliament.
We should though be concerned that one of the judges had a conflict of interest and should not have sat on this case.
Baron Thomas of Cwmgiedd — the Lord Chief Justice — was a founding member of the European Law Institute, which says it works towards the “enhancement of European legal integration”.
Post-Brexit is too important to be left to politicians to decide. There should be open public meetings across the country, to decide what sort of post-Brexit future people wish to see. We saw with the EU Referendum how out of touch with the people are career politicians
38 Degrees have been crowd-sourcing ideas DIY Brexit on what Post-Brexit should look like. It includes things like protecting jobs, more funding for the NHS, an immigration system which welcomes new arrivals with skills we all benefit from — like nurses and doctors. In the past few weeks, groups of 38 Degrees members have met face to face with MPs, including the Home Secretary, the UK Brexit Secretary, and the Secretary for International Trade.
Crowd-sourcing is what Iceland did to draw up their new constitution.
The government should table a simple Bill, that asks Parliament to endorse Brexit.
This would quell the fears of many that there is going to be a sell-out.
This would be followed by further legalisation of what Post-Brexit should look like.
We also have to remember, UK is not the only party to this. We have EU, which is determined to punish the UK to set an example for others, as they have done with Greece, European Parliament, all 28 member states. And with elections across Europe, we may not even be talking to the same players.
Those politicians, who see this as an opportunity to sabotage Brexit, need to think very carefully. They will be playing with fire. We have already seen the anger. There will be riots in the streets.
