Brexit in Limbo

Since the High Court’s judgement last week that “Exiting the European Union” requires Parliamentary approval, the media both print and social, have issued a deluge of commentary. Remainers are optimistic for a second bite of the cherry and Leavers have been conspiring about Judges personal leanings. As the mother of most Judicial systems in the free world this is a significant political mess and very embarrassing for Britain.

The High Court’s decision relates only to the appropriate constitutional mechanism necessary to trigger Article 50. When the UK joined the EU, it did so by an Act of Parliament which adopted the Treaty into domestic law. This conferred certain rights on the British people. In order to remove those rights a piece of legislation needs to be passed by Parliament and not by the government using the royal prerogative.

Ministers and former-ministers have been critical of the High Court verdict and accused the judiciary of interfering with the Brexit decision. The judiciary are offended and outraged as it is not appropriate for politicians to attack the judiciary; they expected their integrity and incorruptibility to be defended by the Secretary of State for Justice.The Lord Chancellor is legally required to uphold the independence of the Judiciary but she failed to respond rapidly and to condemn the personal and vituperative attacks on the High Court Judges. Since then The Lord Chancellor herself has been basically summed up as inept.

The Conservative Government was ill prepared for the result of the June referendum on the EU, the appropriate advice at the time may have been wanting. Sources say the role of Lord Chancellor has been “watered down” since the days of Tony Blair, who wanted to modernise the powers of the Judiciary, to the extent that the present incumbent Ms Liz Truss is considered not quite up to her position, having zero previous legal experience. Ideally the position should be held by someone with Queen’s Counsel experience, who has a profound understanding of the unwritten British Constitution and the separation of the legislative, judicial and executive powers therein.

In 1965 capital punishment in the UK was abolished by an Act of Parliament. If the government of today wanted to re- introduce the death penalty after a referendum, where there was a majority in favour, the government would have to put a piece of legislation before Parliament in order to repeal this Act. The same is true for Brexit to be realised, thustriggering Article 50 will require an Act of Parliament.

The Attorney-General, Jeremy Wright QC, a young and according to press reports a relatively inexperienced silk, will lead the Government’s appeal in December;in January it is expected the judgement will be upheld by a majority in the Supreme Court. However this should not delay Mrs May’s opaque Brexit plans as it is unthinkable that Parliament would seek to overturn the will of the people. The bottom line is that Prime Minister Theresa May cannot use prerogative powers to change an existing Act of Parliament.