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Judgement unleashes Brexiter vitriol against MP’s scrutiny

by David Hannay | 04.11.2016

If anyone doubted the Brexit debate still had the capacity to stir up febrile, even hysterical, reactions, those doubts will be dispelled as leading Brexiteers vie to cry foul at the High Court’s ruling this week that parliament must have a say on the government’s Article 50 plans. Their animus seems directed not only against what they see as the sovereignty-sapping jurisdiction of the European Court of Justice but against any court at all if their rulings do not go the way Brexiteers want. Those are Trump rules – no contesting outcomes so long as they go your way!

It should surely be welcomed that the High Court has upheld that we are a representative parliamentary democracy where parliament has the final say, and has confirmed that we have not suddenly switched to a fully-fledged plebiscitary form of government. After all, Brexiteers said they were campaigning to leave the EU in order for our own parliament to recover its sovereignty.

With its decision to appeal to the Supreme Court, it is a pity the government was not able to accept the High Court ruling and press on with drawing up a document setting out its approach to the Brexit negotiations as a basis for it to seek parliamentary authorisation for triggering Article 50.

Instead, the government will waste another month or more fending off the probably inevitable need to give Parliament a say in the Article 50 decision, whatever the Supreme Court rules.

Oddly, there is a serviceable recent precedent on how to proceed, pioneered just a few years ago by the then Home Secretary – one Theresa May. It was the process followed when the government had to decide whether or not to trigger the provisions of Protocol 36 of the Lisbon Treaty which gave us the right to withdraw from all pre-Lisbon Justice and Home Affairs legislation.

The process went like this:

Stage 1: The government sought the approval of both Houses of Parliament in an amendable resolution to trigger withdrawal. At the same time, it declared its intention to negotiate to re-join 35 of the Justice and Home Affairs measures in the Lisbon Treaty that it felt were in the national interest to retain. This was agreed by both Houses;

Stage 2: The government negotiated with the EU Commission and Council, finally agreeing on a slightly longer list of measures to re-join than those it had originally picked itself;

Stage 3: The government put the negotiated outcome to parliament for its approval and for it to make the necessary changes to our domestic legislation.

None of this is rocket science, and does not necessarily entail any delay to the Prime Minister’s timetable to trigger Article 50 by March 2017. So why not just get on with it?

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Edited by Yojana Sharma

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