Article 50 ruling: Constitutional v democratic principles

Following the decision made by the Supreme Court yesterday (24/01/17) , speculation is brewing in regards to the impact on the government and the UK as a whole.

The claim that the royal prerogative was sufficient to trigger article 50 was rejected, with an 8 to three majority believing that Parliamentary approval was required before this could occur.

Whilst there has been various commentary on how the government will be affected by the decision, others have focussed on the reasoning behind the judgement.

Mark O’Halloran, Partner at law firm Coffin Mew, responded to yesterday’s landmark decision. He acknowledged that whilst although the decision may have been correct on a Constitutional level, the public referendum element added another layer of complexity to the matter.

“The Supreme Court’s decision today was undoubtedly correct as a matter of Constitutional Law but will disappoint many who had hoped the former Law Lords would put democratic principles above technicalities. The issue hanged on the so-called Royal Prerogative – the power of Government ministers to make and break international treaties without recourse to Parliament. But that power has always been subject to an important constraint: it cannot be used to change domestic UK law which Parliament had already created, and that’s what ultimately defeated the Government’s case.

“Our relationship with the EU has always been unique from a constitutional point of view and, as everyone knows well, EU laws are part of UK law. This is because Parliament itself said so in Section 2(1) of the European Communities Act 1972. So the question for the Supreme Court was in some ways quite simple: can the Government override an Act of Parliament without Parliament’s consent? In any other case, the answer on everyone’s lips would probably be a resounding “No”.

“But this case was different: we had a referendum. The issues were argued in detail and at length, if not always with much clarity. More to the point, the vote was one of the largest exercises in direct democracy the UK has ever seen. Most of the public thought they were making a decision, not simply expressing a view on which the Government might or might not act.

“But, in the end, only 3 judges dissented from the majority rule, with none placing much importance on the role of the British people. Lords Reed and Carnwath thought it was up to Parliament to deal with ministers, after they had exercised Royal Prerogative. Lord Carnwath, in particular, was dismissive of the argument that the lack of any precedent required the “invention of new principles”. Lord Hughes, in a wonderful display of semantic acrobatics, thought the Government could trigger Article 50 because that wouldn’t overrule the European Communities Act, it would just make it irrelevant.

“This was a unique case at a unique time in our history. If there’s one lesson to draw, it’s that the next time Parliament approves a referendum, it should make it clear that the Government can, and must, implement the will of the people.”

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