In less than two weeks a disparate group of citizens, including a Spanish hairdresser, a campaigning fund manager, a British ex-patriate living in France, residents of Gibraltar, Wales and London and some unidentified children will challenge the UK Government in the High Court over Brexit.
Their intention is not to overturn the referendum result, although probably they would all like to do so, but to force the Government to hold a vote in parliament before triggering Article 50 of the Lisbon Treaty which would take us out of the European Union.
The Prime Minister has said that she does not need parliamentary approval and she can effectively end Britain’s EU membership by using the Royal prerogative. Part of the litigants’ case is that the prerogative is “a relic of a past age” and merely a means of side-stepping executive accountability to parliament.
The EU referendum was not mandatory, they argue. The Act enabling the vote did not oblige the Government to implement the decision. It is up to parliament, taking into account the result, to take the decision to leave the EU.
Pre-trial papers show that they intend to throw everything at the Government, including European treaties, UK laws, the devolution settlements, the 1689 English Bill of Rights and – surprisingly – the Acts of Union of 1706 of the English parliament and 1707 of the Scottish parliament.
The argument here is that the two Acts (effectively a treaty of union between England and Scotland) provided certain safeguards for the people of Scotland and particularly that alteration of their private law cannot be made except by the parliament of Great Britain. Withdrawing from the EU would affect many areas of private law in Scotland and so that decision can only be made by parliament.
Article XVIII of the 1706 Act states:
“That the Laws concerning regulation of Trade Customs and such Excises to which Scotland is by virtue of this Treaty to be liable be the same in Scotland from and after the Union as in England and that all other Laws in use within the Kingdom of Scotland do after the Union and notwithstanding thereof remain in the same force as before (except such as are contrary to or inconsistent with this Treaty) but alterable by the Parliament of Great Britain with this difference betwixt the Laws concerning publick right Policy and Civil Government and those which concern private right that the Laws which concern publick right Policy and Civil Government may be made the same throughout the whole United Kingdom. But that no alteration be made in Laws which concern private right Except for evident Utility of the Subjects within Scotland.”
The Act of Union has been used before in the context of the EU. As Professor Aileen McHarg has pointed out a fisherman tried to use it to stop Britain joining the EU in 1972. On that occasion a Scottish judge in the Court of Session in Edinburgh dismissed the argument. She is of the opinion that this attempt will also fail, although for different reasons.
The Government seems so far to be ignoring the Act of Union. It’s case is that the domestic courts have no jurisdiction over matters of international treaties. It also dismisses the notion that the referendum was merely advisory by arguing that the electorate voted in the expectation that the Government would abide by the result and would not allow parliament to overturn it.
A glittering array of legal stars is scheduled to pack the court when proceedings resume on 13 October, but some independent experts doubt that the court will want to be seen interfering in matters of international law. It is possible that an appeal might get to the Supreme Court, but it is much more likely that the issue will be solved politically rather than judicially.
Though many people might like it, it is probably impossible that referendum result could be overturned. There appears no appetite either in the Government or the country for a second referendum and no evidence that the result would be any different. Even the most Europhile of Conservative MPs would hesitate before voting against their constituents.
But the form of Brexit is a matter on which parliament should have a say: whether we seek to stay in the EU Customs Union and/or the Single Market (“Soft Brexit”), or whether Brexit actually means Exit and we leave EU institutions altogether to try to negotiate some alternative future for ourselves (“Hard Brexit”). The choice between those two pathways could have a profound effect on our future.
One of the arguments of the Leave campaign, after all, was that sovereignty should be repatriated from Brussels to Westminster, not to No.10 Downing Street.
First published by the David Hume Institute and reproduced with permission