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Só
o Parlamento pode reverter uma lei que ele próprio aprovou
ANA FONSECA PEREIRA
04/11/2016 – 00:59
A
decisão do tribunal confirma que só o Parlamento pode reverter o
que o Parlamento aprovou, explica Fausto Quadros, especialista em
Direito Europeu da Faculdade de Direito da Universidade de Lisboa.
Fausto Quadros,
professor catedrático da Faculdade de Direito da Universidade de
Lisboa e especialista de Direito da União Europeia, explica os
fundamentos jurídicos da decisão e argumenta que esta serve os
políticos.
Como vê esta
decisão do Tribunal Superior?
O tribunal
limitou-se a aplicar o Direito Constitucional britânico. O que
introduziu o Reino Unido nas comunidades europeias foi uma lei, o
European Communities Act de 1972. O referendo não é vinculativo,
não obriga ninguém. Ora, como o referendo não vincula, não
afecta, nem destrói o Act de 72. Este só pode ser revogado por nova
lei do Parlamento. Isto sabe-se desde a noite do referendo, os
juristas disseram isso logo a partir do dia seguinte. Até que um
tribunal vem agora dizer aquilo que toda a gente já esperava: o
referendo não obriga, o Parlamento tem de intervir, e o Reino Unido
só pode sair através da [aprovação] de uma nova lei.
Não tem então
dúvidas de que esta decisão será confirmada pelo Supremo?
Não tenho dúvidas
nenhumas, é a única decisão possível. Tenho até dúvidas de que
o Governo vá recorrer da decisão. A primeira-ministra Theresa May
já deu a entender que, tendo feito campanha pelo "Brexit",
não quer o "Brexit", porque já viu as consequências,
percebeu que de facto os britânicos não querem sair, porque estão
arrependidos do referendo, e das consequências do referendo – que
é os britânicos que estão fora do Reino Unido terem de voltar
todos para o Reino Unido porque passam a ser cidadãos terceiros e
deixam de ser cidadãos europeus, de ter direito a residir, residirão
se os outros estados deixarem.
Em todo o caso
haverá uma votação no Parlamento…
…Que dificilmente
não será contra o "Brexit". Com os votos do Partido
Trabalhista que é quase unanimemente a favor da União Europeia, com
os votos da ala, maior ou menor, do Partido Conservador que é contra
o "Brexit", e com o Partido Liberal que é a favor
manutenção na UE, deverá aprovar a manutenção. A não ser que
haja um terramoto, não me custa a admitir que a maioria do
Parlamento vá confirmar o Act de 72 e dizer que o referendo não
obriga a revertê-lo.
E os deputados
estarão prontos a pagar o preço político?
E qual é a
alternativa? Vamos supor que passa o "Brexit". Há
negociações para um novo acordo. Esse acordo que venha a ser
celebrado entre o Reino Unido e os outros Estados tem de ser aprovado
pelo Parlamento britânico e pelos parlamentos dos outros
Estados-membros. Qual é a alternativa? É o "Brexit"
triunfar agora e depois não haver nada. Porque o Parlamento
britânico, ou um dos parlamentos nacionais recusa o acordo sobre o
novo estatuto do Reino Unido na União Europeia. O Reino Unido fica
na pior das posições: não estar na União Europeia e não ter
nenhum estatuto a ligá-lo aos Estados da UE.
E votando pela
manutenção resolve também o problema da Escócia, que não vai
levantar o problema de querer sair e continua no Reino Unido.
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MPs
will demand a heavy price for a clean Brexit
Theresa
May’s EU exit course was set. A High Court ruling has thrown it up
in the air.
By TOM MCTAGUE, ALEX
SPENCE AND CHARLIE COOPER 11/3/16, 8:12 PM CET Updated 11/3/16, 9:15
PM CET
LONDON — The murky
politics of Brexit just got a lot murkier.
On Thursday three
senior judges did what Theresa May’s political opponents have
struggled to do: put the prime minister on the back foot on Brexit.
By ruling that she
doesn’t have the legal power to begin the formal EU exit process
without parliamentary approval, the judges dealt a major blow to
May’s plans for a tightly-controlled, clean withdrawal.
Downing Street
insists it is pushing ahead with plans to invoke Article 50 in March
and the prime minister will inform European Commission President
Jean-Claude Juncker on Friday that her strategy has not changed.
The reality is that
her Brexit timetable has been thrown up in the air.
The ruling adds
significantly to the complexity and uncertainty surrounding a process
that was already unclear and opens the way for parliament to demand
concessions that May was not planning to give.
Lawyers at Clifford
Chance, one of Britain’s biggest law firms, said there were now at
least five plausible routes to Brexit as a result of Thursday’s
decision — all of them politically fraught.
Mark Carney, the
Bank of England governor, warned the court’s decision will add to
anxiety about the impact on Britain’s economy.
The decision even
rekindled talk of an early election in 2017. The prime minister has
ruled out going to the electorate before the end of the current
parliament in 2020, despite having a huge lead in the polls over the
opposition Labour party. But she could now change her mind and seek a
clear mandate for Brexit on her terms — making it less likely that
parliament will defy her.
A spokeswoman for
Number 10 said: “There shouldn’t be an election before 2020. This
remains the PM’s view.”
Nothing stays the
same
Until Thursday,
those lost in the fog of Brexit were at least able to cling to two
certainties: when the U.K. will leave the European Union, and how.
May insisted that
her government had the power to unilaterally trigger Article 50, and
that she wouldn’t put it to a vote of the House of Commons. The
prime minister said she would invoke the clause before April, setting
in motion a two-year negotiation between the U.K. government and the
EU on the terms of the divorce.
Now, thanks to the
High Court, even that is unclear.
Rejecting the
government’s contention that it was within its powers to invoke
Article 50, the judges ruled that only parliament has the legal
authority to take Britain out of the EU.
The government
immediately said it will appeal — and the U.K.’s Supreme Court
was already primed to hear the case in December — but its chances
of overturning the decision appear slim.
The High Court’s
judgment was unambiguous, giving the government’s legal arguments
short shrift — at first reading, it seems appeal-proof.
Let the horse
trading begin
It seems inevitable
that May will have to ask MPs for authorization by putting a bill on
Article 50 before parliament.
That leaves open the
prospect of pro-European and opposition MPs and peers trying to
frustrate, delay or even derail the Brexit process — or at least
demanding concessions from May on the terms of Britain’s withdrawal
in return for pulling the trigger
Ultimately, May
still holds a great deal of power.
Brexiteers
complained that unelected judges were trying to subvert the will of
the people. UKIP leader Nigel Farage warned there would be an
uprising if there was an attempt to stop Brexit.
In a significant
admission Thursday afternoon, Brexit Secretary David Davis said
unless the High Court’s decision was overturned, a full act of
parliament was now required to trigger Article 50. In other words, a
simple motion will not suffice — both houses of parliament need to
agree to Britain’s withdrawal.
It sets the stage
for the most important parliamentary battle since the 1972 act taking
Britain into Europe — and a constitutional crisis if MPs or peers
refuse to give their assent.
Ultimately, May
still holds a great deal of power. If parliament refuses to let her
enforce the will of the people, she can call an election and get a
new parliament.
Because of that
threat, it is extremely unlikely that the government will lose a vote
authorizing Article 50.
Although most MPs
backed Remain, British politics has shifted so far since June 23 that
many would consider it electoral suicide to be seen blocking Brexit
when 401 of the 632 constituencies outside Northern Ireland voted to
Leave.
The question, then,
is not whether MPs stand in the way of Article 50 being triggered,
but how much they will demand in return.
Once the government
introduces the bill — which will be as tightly-drafted as possible
to avoid troublesome amendments — any member of parliament can
propose changes.
It will be up to the
Speaker of the House of Commons, John Bercow, whether to accept the
amendments for debate.
The opposition, for
instance, might try to amend the bill to make membership of the
single market a condition of Brexit. Would they win a majority for
that? It’s unlikely but this is the political calculation MPs must
make.
May could easily use
a single market amendment as a stick to beat Labour MPs in
constituencies that voted heavily to leave because of concerns about
immigration.
But MPs could also
push for an amendment authorizing Article 50 on the condition that
parliament gets to vote on the final terms of the divorce. That would
empower parliament and the soft Brexiteers considerably during the
negotiation process.
Senior Leave figures
said the expectation in Number 10 is that MPs will demand far more
scrutiny throughout the process, empowering the “soft” majority
and exposing the government’s hand in negotiations with Brussels.
“We think they’ll
go lower than single market,” one senior Leave figure said of the
MPs’ likely demands. “They’ll extract a price though —
something that gives them extra tools in the fight. Process, debates
on the floor of the House, oversight, that kind of thing. It’s more
noise than light. What we are going to see now is even more noise —
and noise means pressure.”
Brexit on hold
At the very least,
this could add considerable delays to the timetable for Brexit.
Dominic Cummings,
who masterminded the Vote Leave campaign, urged Euroskeptics to take
a “deep breath” and focus on winning the battle in parliament.
Assuming the Supreme
Court upholds the decision in December, and May then has to introduce
a bill to trigger Article 50, it could take months for the Commons to
haggle over the legislation before voting on it. Members of the House
of Lords — unelected, fiercely pro-Remain and unbiddable — will
also get their say.
At its heart this
was never a political question for the judges — it was purely
constitutional.
They were at pains
to say they weren’t making a political point. “Nothing we say has
any bearing on the question of the merits or demerits of a withdrawal
by the United Kingdom from the European Union,” they said.
Dominic Cummings,
who masterminded the Vote Leave campaign, urged Euroskeptics to take
a “deep breath” and focus on winning the battle in parliament,
rather than engaging in “confused whining” about the court
decision.
The judges had
upheld the important constitutional principle of parliamentary
sovereignty, Cummings tweeted. The government should drop the doomed
appeal and concentrate on trying to “smash” the Brexit critics in
the Commons, he said.
Former Attorney
General Dominic Grieve also defended the decision. “Laws and
statutes conferring rights on people passed by parliament cannot be
removed without parliament voting to do it.”
In other words, what
parliament gives, only parliament can take away – and vice versa.
“That is what this question is about,” Grieve said.
That is also what
Brexit was supposed to be about. Britain has always enjoyed irony.
Brexit
has caused havoc already. Now parliament must save us
Polly Toynbee
The
ruling on article 50 is a huge opportunity. It would not be
anti-democratic to try to stop what many other countries see as
economic suicide
A momentous
constitutional decision was taken by the high court of England and
Wales this morning. A prime minister’s absolute power to do what
they like, when they like, regardless of laws and treaties, was
struck down. Theresa May cannot tear up our right to be EU citizens
without the authority of parliament. Those rights were bestowed by
parliamentary votes in a series of treaties. She can’t
high-handedly abandon them and trigger our exit from the EU without
parliament’s agreement.
Judges, wisely, do
not generally want to usurp the power of elected governments to
govern. Laws made by judges are a poor substitute for those made by
elected MPs in parliament. But this is a matter of the profoundest
constitutional importance, with deep implications, controversial
whichever way they had decided. They rightly pronounced that
parliament is sovereign – which is what the Brexiters claimed we
were voting on, until it no longer suited them.
What now? The
government will appeal to the supreme court in December, though some
suggest May should dash to the Commons immediately for a quick vote,
before an as-yet hazy coalition of cross-party remainers has time to
organise and solidify. If the appeal fails, will MPs galvanise?
Leaving it to the unelected Lords is no answer.
There are times when
MPs need to rise above their party interests, their own interests and
the views of their constituents. That may risk being voted out, but
they may earn more respect by standing up for the national interest
as best they can determine: that’s what representative democracy is
for. In times of war or national crisis, defending the country from
grave error, at whatever personal cost, is their duty. Brexit is the
greatest threat to national wellbeing since the war, and this will
test the mettle not just of individual MPs, but of the nature and
purpose of a representative democratic system.
How difficult and
brave that is: Labour MPs are painfully mindful that 70% of their
seats returned majorities in favour of Brexit. Raucous anger against
any parliamentary attempt to let the country pause for thought is
bellowed out daily by the Tory press denouncing all 48% of remain
voters as an anti-democratic remoaning metropolitan elite. Stifling
all experts just for being experts, intimidating even the Bank of
England governor, Mark Carney, is a bullying demagoguery that
paralyses many who should speak out. A non-binding referendum, voted
on amid a thicket of utterly cynical lies and promises, cannot be a
tombstone block to the judgment of MPs on this vital matter of
national interest. It’s not anti-democratic to try to stop what so
many other countries see as an incomprehensible act of economic
suicide.
Why does the
government fight so hard against what would almost certainly be a
parliament that folded instantly on an article 50 vote? Because
during such a debate they would have to bring forward some kind of
plan for how they will negotiate Brexit. No such plan exists, because
the split cabinet could not possibly agree even a vague outline to
satisfy both Liam Fox and Damian Green. Even a wishlist of
impossibilities would be impossible, with the demented John
Redwood/Daily Express faction calling daily for an immediate crashing
out, with no deals and no treaties.
Best news of the day
came from a BBC interview with Lord Kerr, former head of the foreign
office and ambassador to the US and the EU. It was he who drafted
Article 50 and he says: “It is not irrevocable. You can change your
mind while the process is going on.”
The pound soared
following today’s high court news because markets are idiotic,
shaped by punters second-guessing one another’s idiocy. This
doesn’t suggest, alas, that Brexit is much closer to being
reconsidered. Reality will take the pound back down, predicted to
sink further with each step towards to the exit gate. Next year’s
prices will rise, NIESR reckons, by 4%, hitting those who are “just
managing” even harder.
Every day another
bad effect is revealed before anything has even happened. Today
reveals an acute labour shortage in the food processing industries,
as east Europeans are reluctant to come here. The shrinking pound
decreases the value of their pay, and they hear awful stories of
racist attacks and abuse. Without actually leaving, we are already
keeping EU immigrants away. The damage is beginning already.
The latest regreters
are the £4bn curry house operators, who voted out. They were lied to
outright, as Priti Patel and others told them fewer EU migrants would
open the door to the chefs they desperately need and promised a
points-based system to let chefs in. This has now been reneged on.
There will be massive closures, they say. How naive could they be? A
public stirred by Mail and Sun anti-migrant horror stories were made
even more fearful of Muslim refugees pouring than of Poles: of course
the government now says the screw is tightening and there will be no
more Asian visas. Others too will find how badly they were lied to.
There is time for
people to change their mind, and polls suggest opinion is on the
move. The vote was narrow. But MPs can’t wait for public opinion to
shift by itself. They have a role to play - as leaders not as
followers. Today’s judgment tells them exactly that.
Once in a while, by
mistake, Boris Johnson tells a truth: “Brexit means Brexit and we
are going to make a titanic success of it”, he said last night at
the Spectator awards. Yes, we are on the Titanic and he’s the
captain. God help us. Can parliament help save us from him and the
damage he has done before we sink?
Keir
Starmer: Britain’s last Remaining hope
With
Labour’s leader sidelined, the party’s Brexit spokesman has
stepped into the spotlight.
By TOM MCTAGUE AND
CHARLIE COOPER 11/4/16, 5:30 AM CET Updated 11/4/16, 7:11 AM CET
LONDON – Meet the
real leader of the opposition.
Following Thursday’s
bombshell High Court decision that forces Theresa May to get
parliamentary approval before taking Britain out of the EU, Labour’s
Brexit spokesman Keir Starmer is suddenly one of the most important
figures in British politics.
Labour Leader Jeremy
Corbyn is increasingly absent or ignored. In his stead, MPs are
turning to the U.K.’s forensic former chief prosecutor as their
last hope of serious resistance to a hard Brexit. Despite only being
elected in 2015, what Starmer thinks about Brexit now matters. His
ability to build and cajole parliamentary opposition to the
government will shape Britain’s relationship with Europe for
decades to come.
In the most
comprehensive explanation of his position on Brexit to date, Starmer
told POLITICO that Britain’s membership of the single market will
have to “lapse,” that Labour will push for “the fullest
possible” tariff-free access to European markets, and that any new
deal with Brussels will require Westminster to have some control over
who comes to work in the U.K.
Setting a course at
odds with his leader, Starmer argued that immigration has been too
high and said Labour must support “some change to the way freedom
of movement rules operate” as part of the Brexit negotiations.
Starmer is also open
to the U.K. leaving the jurisdiction of the European Court of Justice
— the prime minister’s core demand — as long as another body is
established to settle disputes between Britain and the EU.
In all, it suggests
Labour is flexible on the practicalities of Brexit, but only within
certain red lines, beyond which the party is not prepared to cross.
“If she’s out, out, out then there’s no compromise,” Starmer
insisted. A total, clean break from the EU, its single market and
customs union is not acceptable to him. If May does not compromise,
Starmer said he sees no possibility of consensus.
Starmer sounded
prepared to play hardball in the upcoming skirmish over Article 50 in
the House of Commons sparked by Thursday’s court ruling. He is
adamant Labour has no intention of blocking Brexit in any vote, but
is determined to exact his pound of flesh. “We have been pressing
the government to disclose its opening negotiating strategy and we
will continue to press for that,” he said. “The broad objectives
have to be disclosed.”
The Conservatives
have a working majority of 15 in Parliament, and some of their own
vocally supported Remain and prefer a softer form of Brexit. While
most MPs regardless of party accept that Britain will leave the EU,
May doesn’t have a clear mandate for what that means. That opens
the way for someone like Starmer to influence the process in the
months to come by building coalitions across the aisles.
Labour’s Brexit
spokesman said the government cannot expect MPs to “debate Article
50 in a vacuum” and expects the prime minister to publish a
document setting out Britain’s opening position by January.
Starmer’s
intervention points to an emerging political consensus — although
far from universally accepted — on the central questions of
Britain’s exit from the European Union. The battle, as he sees it,
is no longer to keep Britain in the single market, to preserve free
movement of people or retain the authority of the European Court of
Justice over British law.
But to hear him none
of this grants May a mandate for a “hard” Brexit and, within the
parameters of a British political landscape upended by June’s
referendum, Starmer intends to make sure that the prime minister’s
negotiating hand does not go unchecked.
Understanding
Brussels
Starmer, the son of
a working class, Labour-supporting family, came into politics late.
The 54-year-old rose quickly after his election in May 2015 to become
one of Corbyn’s junior shadow ministers. He resigned after the EU
referendum, arguing that Labour needed a new leader to guide the
party through the Brexit negotiations.
He insisted that the
opposition must not set its sights on the next general election but
must focus on influencing discussions with Brussels that will shape
the country for “decades.”
“If you look at
Brexit, the future of this country is going to be determined over the
next few months and years and the Labour party has to put in very
effective opposition and challenge, both for the Labour party and for
the country,” he said in his Westminster office overlooking the
River Thames. “Simply setting out what a Labour government might do
in 2020 is not an option on Brexit. It’s what the Labour party does
right now that really matters.”
Despite being
dismissed by the Euroskeptic former cabinet minister Iain Duncan
Smith as a “second-rate lawyer,” Starmer is highly rated at the
top of government and commands respect from many former Remainers on
the Conservative benches. He is viewed as a more formidable opponent
for the prime minister than many of Corbyn’s crop of inexperienced
frontbenchers.
During his time as
the U.K.’s director of public prosecutions between 2008 and 2013 he
worked closely with May, who was home secretary from 2010. Politics
aside, Starmer is fan of the prime minister — professionally at
least. “She is clever, she is cautious and she knows that the
language matters,” he said.
“It’s what the
Labour party does right now that really matters” — Keir Starmer,
Labour’s Brexit spokesman
On some of the
fundamental parameters of the Brexit debate, Starmer accepts that
Britain’s political climate has moved since June.
“Negotiation
should start on the basis that there be some change to the way
freedom of movement rules operate,” he said. “That’s a big ask.
But that ought to be the opening position.”
The idea that
Britain could retain full membership of the single market, as
demanded by the Open Britain campaign supported by Starmer’s Labour
colleague Chuka Umunna and other leading Remain voices, is now a moot
point, he said.
“There’s been a
discussion about whether one should aim for membership or access. At
the moment our membership is because we’re a member of the EU. That
membership will have to lapse,” he said. “That’s why I have
used the phrase fullest possible access to the single market.”
May’s mistake, he
argued, is her reading of Brussels.
By setting the
specifics of immigration controls up as a red line in her speech to
the Conservative Party conference in October, the prime minister
risked shutting down compromise before the talks even began, he said.
“The mistake the government is making is, from the outset, saying
it is not even worth us trying. It is not even worth us having a
discussion about this,” he added.
May’s other red
line in her October conference speech was taking Britain out of the
jurisdiction of the ECJ. This, even more than her stance on
immigration, poisoned the mood in Brussels, Starmer said.
“They interpreted
that as you want out of the single market and out of the customs
union. Their analysis is straightforward: It’s a rules-based
system. The ECJ is the adjudicator in a rules-based system. If you
don’t want the ECJ, you don’t want the rules.”
Despite his support
for Remain during the referendum campaign and his conviction that May
doesn’t have a mandate for a “hard” Brexit, Starmer is
convinced Labour must change its “state of mind” on the
negotiations.
However, he believes
May’s position is “shifting.”
“Her position
hasn’t been consistent. It’s moved from: ‘way outside any
rules,’ to ‘not binary choices,’ so you might be in a bit for
some sectors, out a bit for others,” Starmer said.
As to who polices
any future relationship between Britain and the rest of the
continent, Starmer believes there has to be some body enforcing the
rules – but it doesn’t have to be the Luxembourg court.
He points to the
EFTA court that arbitrates on trade between Norway, Iceland and
Liechtenstein and the EU. “Whether it’s the ECJ or some other
body, it’s hard to see how you can make any agreement of an
international nature without a clause in the agreement about how you
resolve disputes.”
Eyes on the prize
Despite his support
for Remain during the referendum campaign and his conviction that May
doesn’t have a mandate for a “hard” Brexit, Starmer is
convinced Labour must change its “state of mind” on the
negotiations.
“We have a duty to
accept and respect the outcome of the referendum on the 23rd of
June,” he said. “We have a duty to fight for the best possible
deal or outcome for the country … The role should be to hold the
government to account, to challenge what they’re doing and to
challenge it robustly, but also to bear in mind that what we want to
achieve for the sake of everybody is the best outcome.”
Brexit will likely
dominate British politics for far longer than the two-year
negotiating period allowed by Article 50. “The idea that some have
advanced that this can all be sorted out within two years is pretty
far-fetched,” he said.
As well as the core
issues of immigration and trade, new settlements will be needed on
agriculture, fisheries, security, counter-terrorism, data sharing,
environmental issues and “a whole host of other issues,” he
added. “There will almost certainly have to be some kind of
transitional arrangements.”
With Labour looking
increasingly unlikely to enter government any time soon, Starmer
could be forgiven for ruing his decision to hang up his barrister’s
wig for the hard slog of opposition.
He’s having none
of it.
“I’m really glad
to be in,” he insists. “To have the opportunity to hold the
government to account on some of the biggest decisions for probably
50 years is an incredible privilege and I’m very glad to be in
doing that.”
Speak to many Labour
MPs, and so are they. No wonder they see him as a leader in waiting.
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