The essence of the judgment of the Supreme Court on 24 January is set out at Paragraph 101 thereof:
“101. Accordingly, we consider that, in light of the terms and effect of the 1972 Act, and subject to considering the effect of subsequent legislation and events, the prerogative could not be invoked by ministers to justify giving Notice: ministers require the authority of primary legislation before they can take that course.”
In other words, exactly as expected, the Supreme Court upheld the decision of the High Court, as it had to do – because of the ECA 1972.
However, the most important words in that judgment of the Supreme Court on 24 January are these:
“Of course, consistently with the principle of Parliamentary sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute.”
In so saying, the Supreme Court has expressly confirmed that the Civil Service, i.e. the Whitehall Mandarins, are catastrophically wrong in informing the Government that to repeal the ECA 1972 would be a breach of international law. On the contrary, as has always been the case, it “can be repealed like any other statute”.
This point cannot be over-emphasised. For 43 years this statute has been placed on a pedestal as if it were entrenched and untouchable. Now at last the truth is out: Parliament is entirely at liberty to repeal it, and it is nobody else’s business. Of course it would have been wrong to repeal it before 24 June 2016, but ever since then it should have been repealed. If it had been repealed promptly, Gina Miller’s lawyers would not have had any case to argue. As it happens, happily and ironically, it is her very case which has at last brought the truth to light.
The Supreme Court has also spelt out the disastrous consequences of not repealing the ECA 1972:
“So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.
That is because of the principle of Parliamentary sovereignty which is, as explained above, fundamental to the United Kingdom’s constitutional arrangements, and EU law can only enjoy a status in domestic law which that principle allows. It will, therefore, have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament.”
Such is the grip of the Mandarins, however, that all that the “Little Brexit Bill” introduced to the Commons on 26 January does is this:
“(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”
Of course, the Bill should have read:
“(2) The European Communities Act 1972 is repealed.”
While we clearly cannot give three cheers for this, weak and submissive as it is, we can perhaps give half a cheer, for if the obstacle which is the ECA 1972 can be regarded as a wall, then for the first time in history, a tiny crack has at last appeared in that wall!
Nevertheless, and needless to say, and putting it mildly, the draft bill leaves much to be desired.
Given the way the politics is shaping up in the light of the PLP (Parliamentary Labour Party) three line whip, this would have been a golden opportunity to get the ship of state back on course, but as usual the civil servants have scuppered it – for their own ends.
The Prime Minister has stated that she wants to get the best deal for the UK, and that she will walk away from any deal that is not good enough.
Both of those objectives are entirely incompatible with voluntarily going into the Article 50 negotiations while “EU law [remains] an independent and overriding source of domestic law.”
Surely, Mrs May must be aware of this, given the clear and unambiguous statements of the Supreme Court – unless, of course, the Mandarins have neglected to apprise her fully of matters . . . ?
Given the vote on 23 June last year, it is clearly in the interests of the UK for the ECA 1972 to be repealed, and now we have the greenest of green lights from the highest court in the land. To do so would, at a stroke, restore full sovereignty to the UK Parliament (which is exactly what Gina Miller said she was determined to achieve!), and would oil wonderfully the wheels in the Article 50 negotiations.