Parliament cannot and must not deter the Government from preparing or delivering a no deal Brexit.
“The Universal Declaration of Human Rights “Article 21 (3) The will of the people shall be the basis of the authority of government…”
It is worth pointing out that pursuant to the doctrine of the “Separation of Powers”, the so-called sovereignty of Parliament, is limited to enacting legislation and holding the Government to account on behalf of the electorate.
“The separation of powers is the idea that government consists of three functions or branches (legislative, executive and judicial) and that liberty is best protected where the three branches are kept institutionally separate from each other” (Public Law).
First of all, Parliament is only Sovereign in the sense that it is the only institution in the Constitution with the power to enact laws. The real Sovereignty resides with the Electorate. They select by voting who should sit in Parliament and those chosen agree to ‘represent their constituents’ within that environment. The Courts interpret the laws and the Executive governs the day to day running of the country. This is called the Separation of Powers.
The Executive (i.e. the Government) has the power to enter into and depart from Treaties without reference to Parliament.
The European Referendum Act 2015 merely enacted the manner in which the Referendum should be conducted. The Prime Minister announced in Parliament that this is a once in a life time decision which would be made by the people and the decision to leave or remain would be accepted and implemented by them. Again in the Conservative Manifesto 2015, five times it was stated that they would respect the will of the British People – “We will negotiate a new settlement for Britain in the EU. And then we will ask the British people whether they want to stay in on this basis, or leave.” There was no mention of not leaving without a trade deal.
Because of the Gina Miller Supreme Court decision, Parliament was made to do what had already been done by confirming authority on the Government to invoke Article 50 which was duly done again. In the following General Election in 2017 both major parties (who received by far the majority of votes) put in their manifestos that they accepted that they were bound by the decision to leave and would implement it.
Article 50(3) states that the UK (the withdrawing state) shall cease to be a member of the EU
(a) when any such withdrawal agreement shall have come into force or
(b) 2 years from the date of the notification whichever shall first occur.
The House of Lords Constitution Committee in a 2010 report explained “because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory”. The opinion of the House of Lords Committee is wrong for the reasons given above in that the Sovereignty of the Electorate is superior to Parliament whose authority is limited to enacting laws and to some extent criticising the Executive and holding it to account.
In this connection, it’s only way of enforcing its power is to win a vote of no confidence. If the Executive loses this, then the recourse is a General Election which brings us back to the Sovereignty of the Electorate. In any event, as matters stand at present, such limited Sovereignty of Parliament has been severely diminished by the fact that it has over several years handed over a significant part of its law making powers to a foreign entity, namely the EU.”
The 2015 Referendum Act was only dealing with the machinery for holding the Referendum. The decision was a simple to Remain or to Leave. If the latter, it did not need Parliament because the Executive had received direct authority from the Electorate to invoke Article 50 (albeit this became subject to the Gina Miller nonsense).
When the 2016 Referendum took place, the U.K. was still under EU Law as it still stands at this present time. Accordingly, their ‘Code of Good Practice in Referendums’, to which the U.K. is a signatory, and adopted in 2006, specifically states “Parliament must not abuse their position”. Chapter 5 point 4.1 ‘the authorities must respect the people’s decision”.
It is not for Parliament to deter or change the course of the result. As stated in the Conservative Manifesto 2015 “And it is time for the British people – not politicians – to have their say.” and again by the Foreign Secretary in the House of Commons on the Referendum debate “the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber.”
It is obvious therefore that the call to the people was designed to bypass Parliament and by the Executive doing so, the people “have the right to accurate establishment of the result by the body responsible for organising the referendum.” (Venice Commission Voting Procedure 3.2 b iii)
Finally, Parliament has no legal authority to interfere with the conduct of the Executive in carrying out their duties. If they can, what is the point of the Executive? An Act passed by Parliament to prevent Article 50 proceeding “without a deal” would be unconstitutional and illegal.
Article 50 clearly states that the departing country will leave at the end of a two year period. The parties will endeavour to reach an agreement on their future relationship within that period but if they fail then the departure will still take place on that date. It is not a condition in Article 50 that the departing country must agree a trade agreement etc, by that date.
If there was, then no country could leave without the consent of the EU which would make a total nonsense of Article 50.
Furthermore, Parliament cannot lawfully pass a law which requires the Government to seek an extension in perpetuity until they accepted an agreement dictated by the EU because this would fly in the face of the Referendum decision and in any event would be an unconstitutional interference with the conduct of the Executive. What if the EU decides that they want the whole matter to come to an end and refuse any extension, what then, a law of Parliament forcing the Executive not to leave without a deal?
Boris Johnson seems to be making all the right noises; the Brexit Party holding his feet to the fire; but we will have to wait and see.
As for those MPs wishing to thwart the democratic process, it may be that, under Common Law, they should answer to the offence of Misconduct in Public Office; two elements of which are :
point 2 “wilfully neglects to perform his duty” and
point 3 “to such a degree as to amount to an abuse of the public’s trust in the office holder
Even their own ‘Code of Conduct’ points out “Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.”
Seems they forget their own Code of Conduct, but this is beyond the scope of this article.