Occam Blushed and the Brexiteers Rushed: The Question of Article 50

 

Fashion History.
Charles I preparing to do battle with supporters of Parliament (Roundheads) during the English Civil War

A central component of the Brexit campaign was parliamentary sovereignty: more specifically, the need to “take back control”, as Lord Lester of Herne Hill QC explained in a recent letter to The Times. As such, it is time that we allowed it to take its course.

In Parliament today, Helen Goodman MP put the urgent question concerning the need for parliamentary approval of any decision to trigger Article 50 of the Lisbon Treaty to John Penrose MP, the Parliamentary Secretary. Article 50 makes clear that any decision to invoke it and to trigger negotiations to leave the European Union must be made within the confines of each individual Member State’s constitutional arrangements.

We live in a parliamentary democracy. A representative democracy. The reasons are plain: direct democracy does not work on such a large scale and nobody wants a fully fledged monarchy. That is why we plunge our hands deep into our pockets and fork out large sums of money to pay our MPs to make decisions for us.

In answering Helen Goodman’s question, John Penrose – a law graduate from the University of Cambridge, who has worked in the banking industry for a number of years – sought to decry and demean lawyers, 1,000 of whom today signed a letter explaining why it is that Parliament must vote on the question of Article 50; suggesting instead that this decision is for the new Prime Minister and her Cabinet alone. In light of his remarks, this short post will examine why, precisely, it is that such a monumental decision requires a full and proper, parliamentary debate followed by a vote.

In a fantastic article, Nick Barber, Tom Hickman and Jeff King take us back to a time of Kings, Queens and constitutional dilemmas. Specifically, we are taken to 1610, when renowned jurist Sir Edward Coke was handing down judgement in The Case of Proclamations (1610) 12 Co. Rep. 74. He asserted:

“…the King by his proclamation … cannot change any part of the common law, or statute law, or the customs of the realm …”

This principle has since been fleshed out in a number of cases, but the gist of it remains that the Prime Minister and his/her Government cannot destroy or render useless rights conferred on the British public by Parliament without the consent of those who gave us the rights in the first place. In other words, “if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.” A noble proposition.

Above notwithstanding, in a swift rejoinder, Mark Elliot proposed instead that the Royal Prerogative could be harnessed to activate Article 50. He explains that the Government used the prerogative to join the European Economic Community and Parliament’s job was to implement that decision by crafting new legislation.

It becomes swiftly apparent that his argument, with respect, is sophistry at its finest. While they undoubtedly played separate roles in the beginning, to suggest that they must, therefore, continue to play those same roles at the end is false. This is because, since we joined the club, Parliament have created numerous pieces of legislation – chief among them the European Communities Act 1972 – which conferred rights on the British public. Once those Acts were created, Parliament reserved to themselves the power to dismantle them.

However, Elliot has a riposte. He explains that the ECA did not really confer any rights on us at all, but merely gives us the prospect of receiving rights from the EU.

Roughly translated, the interpretative principle of Occam’s Razor suggests that entities should not be multiplied unnecessarily. While initially simple (“just invoke the prerogative”), Elliot’s rationale, that the ECA is understood not to be conferring rights but merely “to be enabling the UK to discharge such obligations as it has from time to time under the EU Treaties”, is so unnecessarily nuanced and legalistic that it would undoubtedly make Occam blush.

An Act which acts as a conduit through which countless rights are conferred on the British people is as good as an Act directly setting out what those rights are.

In stark contrast, the reason why Article 50 must be subject to a Parliamentary debate is simple: Parliament is sovereign. If this were not the case, the House of Commons would become the puppet of an – as of Wednesday – effectively unelected Prime Minister and her Cabinet. They would be held hostage to a vote which was won on the basis of a squalid campaign which cast the majority of our politicians in their worst possible light. Indeed, a campaign subsequent to which numerous voters have regretted their decision to vote leave. In this connection, as John F. Kennedy presciently opined, “[t]he ignorance of one voter in a democracy impairs the security of all.” This is precisely why we do not have a direct democracy and precisely why we do not vest the power to take such monumental constitutional decisions in the Government alone and/or based on a highly flawed referendum campaign.

As David Lammy MP put it in Parliament today, it would also be to ignore the (timely) Chilcot Report which decried the Government for going to war in Iraq on the basis of external pressure and without a sufficient plan. Notably, the Report also criticised the operation of the Royal Prerogative: a completely undemocratic and anachronistic power which for years has been crumbling under the strength of our Parliamentary democracy.

By way of conclusion, Geoffrey Robertson QC has remarked that to invoke Article 50 without parliamentary consent would make a mockery of our representative democratic system which countless “Parliamentarians fought and died for in the civil wars of the 1640s.”

We all accept that the referendum result will be persuasive – seductive, even – but it is not decisive.

Our politicians should do their job and properly debate this issue before Article 50 is invoked.


Post Script:

1,000 lawyers have had their say. If you agree, have yours too by signing the petition below:

https://petition.parliament.uk/petitions/133540

 

 

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