Parliament still matters

Black Rod - vestigial

Black Rod – vestigial

In parallel with the court case on whether parliament is required to authorise the departure of the UK from the European Union (read about it here and here), there has been an equivalent case in Northern Ireland.

The High Court in Belfast has been asked to rule similarly on whether the government can give notice under Article 50 without parliamentary assent, with particular reference to the Good Friday and other legal instruments of north-south cooperation.  The prospect that, in Ireland, the border between the republic and the north could also be the border of the EU provokes a lot of alarm: what does this mean for the free movement of people?  What does this mean for the free movement of goods?  Does the parliament in Westminster need to have a say?

The judgment last Friday from Mr Justice Maguire was that it did not.  Or rather that it did not, yet.  An important paragraph in the judgment reads thus:

The actual notification does not, in itself, alter the law of the UK.  Rather, it is the beginning of a process which ultimately will probably lead to changes in UK law.  On the day after the notice has been given, the law will in fact be the same as it was on the day before it was given.  The rights of individual citizens will not have changed – though it is, of course, true that in due course the body of EU law as it applies in the UK will, very likely, become the subject of change.  But at the point when this occurs the process necessarily will be one controlled by parliamentary legislation, as this is the mechanism for changing law in the UK.

I think the last sentence in this paragraph is wrong.

As a member state of the EU, the UK has got used to law in the UK being changed by European decision, not by parliamentary legislation.  This website thinks that this is a good thing, too, but even if you don’t, it is still a fact.

The process of leaving the EU is controlled not by UK legislation but the EU treaties: that’s what Article 50 is all about.  It is not up to the British parliament to make Britain leave the EU but up to the European institutions, once Article 50 is triggered.  The powers and obligations of those institutions are set down by treaty, a treaty which parliament has ratified but cannot amend on its own.

To say that it is parliamentary legislation that will take the UK out of the EU is not correct.  Two years after the government makes a notification under Article 50, the rest of the EU will cease to consider the UK as a member.  Changing British law – passing the European Communities Act 1972 – was necessary for Britain to join the EU; changing the law is not necessary for it to leave.

This analysis allows for the possibility that British law on EU membership could remain in force – if parliament refuses to repeal it – but to no effect, if the UK leaves the EU anyway.  The ECA 1972 would remain a vestigial piece of the British constitution.  We have plenty of those at the moment – Black Rod, anyone? – so there is no reason why we cannot add another.

It is increasingly alarming that a major constitutional change could be effected on the basis of such a poorly thought-out referendum procedure.  An unclear question, no threshold for vote or turnout, a scandalously dishonest campaign, and no obvious procedure now.

Anyone who believes in parliamentary democracy must surely be distraught that parliament might be sidelined at this crucial moment in our country’s history.  Maybe the silence from the Leavers tells us something about their real motives?

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