Posted by: aboutalbion | September 30, 2016

EU referendum vote (9)

I approve of Mr Justice Cranston’s decision in the High Court this week to order the skeleton arguments of both sides in the forthcoming hearing (scheduled to begin on Thursday 13 October) to be put into the public domain.  The public were invited to fully participate in the referendum, and I see no good reason for the public to be locked out of the build-up to the first round of the ‘civil war’ that follows the ‘leave’ vote.

The ‘People’s Challenge’ will argue that the Sovereignty of Parliament means that a vote in the Houses of Parliament is needed to authorise the Prime Minister to trigger the formal leave-taking from the EU (by invoking Article 50).  The Government will argue that there remain discretionary powers in the hands of the Crown, the so-called Royal Prerogative, which the Prime Minister can exercise without a vote on a statute in the Houses of Parliament.

In favour of the ‘People’s Challenge’ is the ceaseless consolidation over recent centuries of the doctrine of the Sovereignty of Parliament.  In favour of the Government’s argument is the absence of the use of an authorising statute which could be repealed by a later vote in Parliament, and a corresponding reliance that no future Prime Minister would allow a vote to re-join the EU (if indeed the EU survives).

Blackstone’s opinion in the eighteenth century suggested that the Royal Prerogative was limited to an action that no other person in the UK could take … and he had in mind the dissolution of Parliament.  Dicey’s opinion in the nineteenth century suggested that the Royal prerogative was the exercise of discretion by the Crown wherever statute didn’t prohibited it.

Whatever the High Court decision, I feel that leave to appeal to the higher courts needs to be given because the issues at stake in the reception and understanding of the referendum result are so foundational to our understanding that we live in a ‘rule of law’ society.


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