The Brexit judgement
On whether the Crown can give notice to terminate the UK’s membership of the EU, or whether this can only be done by Parliament. The QBD of the High Court (Lord Chief Justice, Master of the Rolls and Lord Justice Sales) judge that it is the latter.
Essential reading for all those constitutional geeks. Presumably this will leapfrog to the Supreme Court. One of the most significant constitutional law issues for years, which does seem to have been both argued and determined in a rather mechanistic way.
It has been said that 500 or more MPs were opposed to Brexit, which may, or may not be, the reason why the Government wishes to avoid a vote in the Commons, with the obvious risk of the Government’s life being cut short. Otherwise this whole legal issue may never have emerged.
The Attorney General’s position does seem to have a long traditional basis. Historically, heads of state made treaties with other heads of state, generally to create alliances, and their parliaments made domestic law, sometimes in consequence of those treaties (for example, involving taxation and conscription and trade arrangements). Treaties were undone, sometimes by agreement, but often by reneging on them or by invasion at the instigation of the heads of state. Sophisticated treaties now provide for notice to be given to withdraw. Parliaments will often, subsequently, have to make or repeal domestic law as a consequential of withdrawal. It does not seem to be entirely right that merely because the EU treaties involved making domestic law across the signatory countries, that the Crown’s prerogative is lost to giving such notice. More so, at least morally, in that the Crown in this case has the benefit of an organised public consensus supporting the Crown’s intended action. It will be interesting to see if the Supreme Court takes a more rounded approach. This does seem to be a case where the Crown is seeking to represent the wishes of its people. The underlying issue of brexit or not to Brexit is continuing to run.
https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/
Editor, Lawyers in Local Government.