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The Sixth Section of Private International Law of the Royal Academy of Jurisprudence and Legislation of Spain is organising an online session on 08 March 2023 at 19.00 hours and coordinated by the Honourable Ana Fernández-Tresguerres, Academic...

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The impact of the British justice system on brexit
Feb 10, 2019

In Europe, the courage of two people - an executive and a hairdresser in the City of London, always David against Goliath in the great struggles, has led to a resolution of the European Commission. High Court London, which is still subject to appeal before the Supreme Courtwhich has shaken British government policy.

But it is well known that the Island's legal system, especially its constitutional system, is not transferable to other legal systems, nor can the reactions to the ruling be transferable to other legal systems, nor can the reactions that the ruling provokes among the British legal class, which is once again divided insofar as a large part considers that the ruling is not in accordance with the law.

In any case, the latter ( has already been identified as the most important constitutional issue of the century in the UK.

In essence, the judgment establishes that it is not for the High Court to decide on the substance of the decision regarding the implementation of the operation of Article 50 TFEU, but rather to analyse the way in which the announcement of this decision, the initiation of this procedure, can be made. Whether it should be a unilateral matter for the Government, on the basis of royal prerogatives, or whether Parliament should actively intervene in the process, given that it affects British domestic law because of the radical change implied by the repeal of the 1972 Act of Accession of the United Kingdom to the then European Economic Community. This would fundamentally alter the rights of citizens in respect of a law passed by Parliament in breach of parliamentary or statutory law (Bill of Rigth, 1689)

On this exquisitely British question, the government considered that it was for the Crown to retain the prerogative to choose whether or not EU law should continue in force in the internal order of the United Kingdom. The referendum, it added, was approved by an Act of Parliament. On the contrary, the Court agreed with the applicants and considered that neither the wording of the 1972 Act of Accession, nor the importance of the domestic legislative change, could omit active parliamentary negotiation. It thus considered the process, as of primary legislationwhich requires statutory action by both Houses and the sanction of the Queen.

Understanding the problem posed, and the divided reactions in the British legal class, arises from the peculiarly unwritten British constitutional system in which there are several historical sources of law, which design the powers of the Crown - the rectius, in general, not in exceptional situations, of the Government - in that as a parliamentary Monarch, the King reigns but does not govern - based, essentially on Common LawStatutes, y Royal prerogative.

The control of this complex legal framework belongs only to a limited extent to the courts, which have maintained only a possible oversight of the royal prerogative, for example in justice or foreign affairs. In general terms, it is considered that only exceptionally does it fall to them to assess the way in which the royal prerogative is used, because the medieval distinction between jurisdiction and governaculum- Courts and Government- (Chadler v. D.P.P, 1911).

Parliament, on the other hand, does exercise its statutory power - it is the Parliament that has the most power.statutes-either by legislative acts; or by assessing the disuse of a royal prorogative (the House of Lords famously vetoed the Queen's attempt to create peers for life) or by Constitutional Conventions.

Therefore, despite the enthusiasm of the 49 per cent of Britons, especially young people, who do not want to leave the EU, technical constitutional issues could dash expectations. Not least, the High Court of Northern Ireland, which has jurisdiction in Northern Ireland, may differ from the London court, albeit in nuances.

What is certain is that the ruling adds uncertainty to the legislative process in the UK. Especially the very sensitive financial sector, which needs not only the European regulatory connection in which it fed its essential volume, but also legal certainty, which is increasingly insufficient. The final resolution of the Supreme Court is expected by the end of January 2017 - at least these are not the times of the Spanish courts -, and until then the mechanism of article 50 of the TFEU will not be set in motion. From then on, unless there is a unanimous extension or new circumstances dictate, it will be two years to stage the most expensive divorce in history. For both parties.