Prerogative Powers and the European Union
By Sean Gabb
(3rd November 2016)
Because I have other business today, and because the comment I have to make is most relevant for today, this will need to be a short essay.
I have read the Judgment of the High Court in the case of R (Miller) Secretary of State for Exiting the EU. So far as I understand, the Government claims that it may give notice to leave the European Union as a matter of prerogative power. The European Treaties are international agreements. These are not a matter for Parliament, though Parliament may be consulted for the sake of politeness, and must be asked for any change of domestic law for bringing a treaty into effect. But it is for the Crown alone to decide whether to make or withdraw from a treaty.
The opposing argument is that the European Treaties are unique, so far as they directly confer rights on British citizens. For example, it is the European Treaties that give British citizens the right to bring cases before the European Court of Justice, for the interpretation of the general rights and obligations created by our membership of the European Union. Even if all these rights and obligations are to be re-enacted into our domestic law, withdrawing from the Treaties abolishes the right of access to the European Court of Justice.
Now, the withdrawal process, once begun, is accepted to be irrevocable. At the end of two years following notification of intention to leave, we do leave, regardless of what agreement has or has not been reached.
For this reason, for the Government simply to notify its intention to leave the European Union is to give notice of the withdrawal of rights from British citizens. Therefore, notice can only be given once an Act of Parliament has been made to allow notice to be given.
The Court accepted this opposing argument. The case may yet go before the Supreme Court, and the Judges there may be of a different opinion. But, having read the Judgment with reasonable attention, I doubt the Supreme Court will be of a different opinion.
This leaves the Government with two options.
First, it can try to get a Bill through the current Parliament to allow notification of its intention to leave the European Union. The Government has a majority of twelve, or ten – I cannot recall what effect the resignation of Zac Goldsmith has on the matter. Whatever the case, this is a small majority. Many Conservative Members are against leaving the European Union. The Lords will probably vote any Bill out – the Salisbury Convention requires them to pass Bills sent up from the Commons without amendment or delay only if a Bill was a manifesto commitment at the previous general election. Since the Government did not promise, in the 2015 general election to leave the European Union, the Lords are at liberty to block or delay to the full extent of their powers. At the least, they may demand another referendum, this time with a threshold requirement.
The Government could create enough new Peers to flood the Lords. But even this threat has only been made in recent centuries once a general election has been called and won by the Government. For reasons I will discuss in a moment, this may not be possible.
This probably means that any resulting Act of Parliament will have tacked onto it any number of limitations on the manner and extent of our departure from the European Union. It may in effect prevent us from leaving the European Union in any meaningful sense.
Second, the Prime Minister can ask the Queen for a general election. However, the Fixed Term Parliaments Act 2011 prevents her from asking for this without a weighted majority in the House of Commons. Since Labour will not consent to an election that it would certainly lose, I do not see any easy way to call fresh elections.
The result, so far as I presently see it, is that either the Remainers will get some of their way, or the Government lawyers will need to think of something clever.
My suggestion is that the fixed Term Parliaments Act should be suspended. The relevant sections of the Bill of Rights 1688 says:
That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.
Let the House of Commons pass a resolution, by simple majority, asking for the Act to be suspended. Since this is a matter affecting elections to the House of Commons, the Lords need not be involved. Once the Act is suspended, new elections can be called.
Search me what else can be done. I suppose this is what happens when too many people with degrees from Oxford are allowed to rule the country