Contradicting Carl’s constitutional conundrum

Picking up on Mick’s post regarding comments by Carl Gardner, I thought it might be helpful to give another perspective, having like Carl read the full judgement, but I don’t think he has quite picked up on some of the most significant points.  This is what I posted yesterday on another site…

I’ve read the judgement (not all in one go, though!)

There are several key points, but it comes down to one thing:

The European Communities Act 1972 grants certain rights to British citizens. Only Parliament has the authority to withdraw these rights.

In reaching that conclusion, they took a number of things into consideration. They affirmed the royal prerogative can be used to enter negotiations for a new treaty per se, but perhaps the key reason for the judgement is the eventuality that the UK falls out of the EU without a treaty being agreed.

The effect of Article 50 is to give notice that in two years time, the European Communities Act and the various Orders in Council and Regulations made under its authority with the approval of Parliament will cease to apply, and with them the rights thus granted to British citizens.

This conflicts with British law, where only Parliament can change rights granted under primary legislation.

If a Treaty can be reached, then Parliament will be able to approve it, although again there would be a problem in that under the Constitutional Reform and Governance Act 2010 treaties are ratified by Statutory Instrument under negative resolution, but there is no power to amend the EC Act itself by secondary legislation.

While the “Great Repeal Bill” is planned, it will take a long time to compile because of how much legislation refers to the EU, even if they don’t arise from any EU regulations and directives. Again, however, as these mainly relate to rights of British citizens in the UK, they don’t affect rights under the EU treaties.

Short version: primary legislation is required to extinguish rights under the EC Act 1972, and Parliament (as the Queen in Parliament) has full authority to do that. The Government (as the Queen in Council) acting on its own does not.

Of course, it will pass the Commons, because of people looking over their shoulders at UKIP, although in Scotland it will be the other way round (SNP.) It will have a rougher time in the Lords, but on the Common Law of England and Wales (and the more or less parallel Common Law of Northern Ireland) an appeal against this judgement to the Supreme Court is unlikely to succeed.

Every international treaty negotiated under the royal prerogative has to be ratified by Parliament in some form or other, and this satisfies the obligation that the High Court has identified.  EU regulations are among the “obligations” approved in advance by Parliament under section 2(1) of the EC Act 1972, and EU Directives are transposed into UK law by statutory instrument authorised by section 2(2) – so Parliament can be said to have foreseen consequential obligations of entering the EU and provided for them.

In short?  A storm in a teacup.

On the subject of Parliamentary approval, which would have to be by a full Bill, because there appears to be no statutory provision to make secondary legislation for such an eventuality, the Bill only needs to amend the EC Act 1972 by providing for the appropriate Secretary of State to give notice, without committing them to any specific course of action – as I understand it, there is nothing to stop Parliament giving them a free hand.  Of course, whether they will actually give them a free hand is another matter altogether.

Andy has a very wide range of interests including Christianity, Lego, transport, music, and computers. Anything can appear in a post.

Andy tweets at @andyboal

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