In my penultimate post I recorded several instances when the Government, with support on occasion from the Opposition, undertook to make our EU membership a matter for decision by the British people in a referendum, calling that decision ‘the final say’, or ‘the final decision’. I pointed out that if the Supreme Court were to uphold the Judgement of the High Court, then the final decision would be made by Parliament, and the referendum would become, so to speak, the penultimate decision, and no longer the final one. Thus the Government would be obliged by the Courts to breach its commitment to the British people, which is a very serious matter.
From 28 May 2015, when the European Union Referendum Bill was published, it was known that the Government did not intend the resulting Act to contain any express authorisation for it to issue the Article 50 notification. If the High Court Judgement is right, then in the absence of such authorisation in this Referendum Act, a further Act would be required in the event of a Leave vote to authorise the notification. Since Parliament is sovereign in our constitution, it would be free, from a constitutional point of view, to decline to pass such an Act. It follows that the Referendum result could not properly be called ‘the final decision’.
If the constitutional position was known to be as the High Court has judged that it is, therefore, one would have expected that the Government would have been corrected on the occasions when it said that the referendum would be the final decision. Surely, someone should have stood up in the Commons on 9 June 2015, or in the Lords on 13 October 2015, or again in the Commons on 22 February 2016, and pointed out that the matter would have to be returned to Parliament for the final decision. Or a constitutional expert should have responded to David Cameron’s Chatham House Speech of 10 November 2015, or to Cm 9216 in February 2016, or to the Government’s information booklet of April 2016, and made that same observation. But no-one did, to my knowledge.
Surely, if the constitutional position was known to be as the High Court has judged, someone should have spoken up and said that although Treaty making and termination is normally a matter for the Government under the Crown prerogative, this case was different. Withdrawal from the EU, it might have been said, would lead to the loss of domestic rights, and the Government could not use the prerogative to take action with this result. Alternatively, Parliament had acted intentionally through the 1972 European Communities Act to incorporate EU rights as domestic rights. Withdrawal from the Treaties would render this Act nugatory, and thus cut across the intent of Parliament, which is unlawful. Or put a little differently, the ECA had displaced the relevant prerogative power. But no-one, so far as I have been able to ascertain 1, made these arguments, prior to the referendum.
Evidence for originality of Barber et al’s argument
In a 27 June response to Barber et al’s article of the same day claiming that authorisation by an Act of Parliament was required before the Government could trigger Article 50, Kenneth Armstrong, Professor of European Law at Cambridge University, described their argument as ‘intriguing’. On 30 June, Mark Elliot, Professor of Public Law at Cambridge University described Barber et al’s argument as ‘fascinating’. To my mind, the argument would not be ‘intriguing’ or ‘fascinating’ to these experts in the field if they were already familiar with it.
Barber et al make no reference to previous advocacy of their viewpoint. The September 2016 Report of the House of Lords Select Committee on the Constitution on ‘The invoking of Article 50’ cites (p. 6, fn. 11) no work earlier than Barber et al in defence of their view.
I conclude that before the referendum it was generally taken for granted that the Government would be free to trigger Article 50 in the event of a Leave vote. I have found no evidence that the argument which prevailed in the High Court had been put forward publically prior to Barber et al’s article of 27 June 2016. This does not mean that the argument is wrong. But if it were right, and the correct constitutional position is that an Act of Parliament is required before the Article 50 notification, then I for one would have expected someone to have said so publicly before the referendum. That no-one did so, so far as I have been able to ascertain, is a matter therefore that seeks an explanation, if the High Court judgement is right.
- I have made enquiries on this point, writing to some who might be expected to be in a position to know ↩