Three British High Court judges are currently preventing Brexit. They have said that the elected government and will of the people via a referendum is not enough to make the decision to leave. They have stated that Brexit cannot be triggered without a Parliamentary vote. Given these restrictions we have to ask who or what exactly got Britain into the EU in the first place? Was it via a parliamentary vote or did a government or referendum result in Britain joining the European Union?
Many constitutional experts believe that Britain isn’t actually a member of the European Union since our apparent entry was in violation of British law and was, therefore invalid.
In enacting the European Communities Bill through an ordinary vote in the House of Commons, Ted Heath’s Government breached the constitutional convention which requires a prior consultation of the people (either by a general election or a referendum) on any measure involving constitutional change. The general election or referendum must take place before any related parliamentary debate.
…Just weeks before the 1970 general election which made him Prime Minister, Edward Heath declared that it would be wrong if any Government contemplating membership of the European Community were to take this step without `the full hearted consent of Parliament and people’.
However, when it came to it Heath didn’t have a referendum because opinion polls at the time (1972) showed that the British people were hugely opposed (by a margin of two to one) against joining the Common Market. Instead, Heath merely signed the documents that took us into what became the European Union on the basis that Parliament alone had passed the European Communities Bill of 1972.
So there you have it. Britain was plunged into the European Union without consulting the people via referendum and despite opinion polls showing strong opposition to the idea. The decision was passed by parliament alone which gives validity to the High court Judges’ claim that parliament must give Britain permission to leave the EU. What is in debate though is whether parliament had the legal right to sign off on such a drastic measure that involved constitutional change without consulting the will of the people in the first place.
After the decision had been made and the deed was done in 1972 it was then put to the people via a referendum three years later. The people were asked to decide whether or not to stay in it and 67% were in favour. However, the way the referendum was worded was criticised.
But, almost inevitably, the question asked in the referendum was also illegal since voters were asked: `Do you think that the United Kingdom should stay in the European Community (the Common Market)?’
The problem was that since Heath had ignored the constitution duties and requirements of Parliament and had signed the entrance documents illegally the words `stay in’ were deceptive. We couldn’t stay in the EEC because, constitutionally, we had never entered. We couldn’t enter the Common Market because Parliament did not have the right to sign away our sovereignty.
The referendum Wilson organised to remedy Heath’s constitutional breach misled the electorate on a simple constitutional issue and was, therefore, itself illegal. (Wilson’s referendum was passed after a good deal of very one-sided propaganda was used to influence public opinion. If the nation had voted against our `continued’ membership of the EEC the political embarrassment for all politicians would have been unbearable.)
…Some MPs have subsequently claimed that `Parliament can do whatever it likes’. But that isn’t true, of course.
…We have (or are supposed to have) an elective democracy not an elective dictatorship.
…Precedents show that the British constitution (which may not be written and formalised in the same way as the American constitution is presented) but which is, nevertheless, enshrined and codified in the Magna Carta (1215), the Petition of Right (1628), the Bill of Rights (1689) and the Act of Settlement (1701) requires Parliament to consult the electorate directly where constitutional change which would affect their political sovereignty is in prospect. (The 1689 Bill of Rights contains the following oath: `I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have jurisdiction, power, superiority, pre-eminence or authority within this Realm.’ Since this Bill has not been repealed it is clear that every treaty Britain has signed with the EU has been illegal.)
…Attempts through the courts to annul our membership of the European Union on the basis that Parliament acted improperly have failed because Parliament, through its legal sovereignty, is the source of the law in Britain and the courts are, therefore, unable to challenge any Parliamentary Act.
Only Parliament can reclaim the legislative powers that Heath and subsequent Prime Ministers have handed to the European Union.
…Is there any hope that Parliament will repeal the 1972 European Communities Act and restore sovereignty to the people? Not in the immediate future.
But the errors made by Heath and Wilson mean that when we want to leave the EU it will be very easy.
Because, officially, we never joined.
An independent British Parliament would simply have to pass one short Act of Parliament and give notice to the EU and we would be out of this accursed club.
As it turns out Vernon Coleman’s 2011 analysis is way off base. Leaving the EU is turning out to be like the Hotel California.
You can check in but you can never leave.