At 10.00 am on 3 November 2016, the High Court gave a ruling on the complaints by Gina Miller and others that the Government does not have the right to arbitrarily invoke Article 50 to institute the process of leaving the European Union (EU).
The judges’ decision ruled in favour of the complainants in the case.
Needless to say, this sent the various news media into paroxysms of analysis and somewhat crude conclusions as to the future of Britain’s Brexit position. Norman Smith of the BBC even likened the expressions at Number 10 to those shown in the famous painting The Scream. He even went as far as to say, that an Act of Parliament could well be required to trigger said Article. All of this was said with typical BBC gusto and very little know, except what exactly the judges had actually said.
We have now had the transcription of the ruling and considering its implications, a reamarkabky short piece of prose. Just 11 paragraphs restating the various positions dating back to the Act of 1972 and the arguments made in the High Court a few weeks ago with the Government argument being mainly based on the right of the elected Executive to use Royal prerogative to invoke Article 50 without recourse to Parliamentary approval. The complainants primary position was that the rights bestowed on them by the EU law makers would be annulled by invoking said Article.
In paragraph 11 of the ruling the judges found for the complainants. In the course of the ruling, no mention was made that the Government would need to create an Act of Parliament to invoke Article 50. As a matter of detail it did not even mention the need for Parliamentary debate on the matter but this is something MPs have been agitating for recently and this might be a prudent way to proceed.
I have expressed these points to the PM’s office but also added that the sovereign rights of the complainants seem to have been uppermost in the judges’thinking and with that one could presuppose, the sovereign rights of the 16.1 million people of the UK who voted to Remain in the EU in June’s EU Referendum. No mention was made of the sovereign rights of the 17.4 million people who voted to Leave the EU. I suggested to the PM’s office that there might be a case for considering this to be judicial discrimination. An opinion on that might be open to conjecture but we shall see.
The Government has decided to appeal directly to the Suoreme Court despite Ms. Miller’s exhortations not to – I am not convinced that had the ruling gone against her and her fellow complainants that she would not have reserved the right of appeal, but no matter.
As Mr. Carney at the Bank of England mentioned in delivering his optimistic view of Britain’s economy in 2017, this ruling has introduced a further element of uncertainty. However, that is what Parliamentary democracy and politics is all about and we will have to live with it for the time being.
For my part, I am optimistic that a positive result will be forthcoming from our PM and her team and that, as voted for in June, we will still be leaving the EU at sometime in 2019.