As was to be expected, the UK is now embroiled in a constitutional crisis over the government’s plan to negotiate its departure from the EU. On 3 November 2016 the UK High Court ruled that the UK government cannot activate the Article 50 process to leave the European Union without Parliamentary approval. In doing so it asserted a fundamental principle of the UK’s unwritten constitution, that Parliament is sovereign. This issue goes right to the heart of Britain’s system of government.
May’s proposal to activate Brexit by royal prerogative
The UK government has said it intends to trigger the Brexit process by royal prerogative, in that Prime Minister Theresa May would, on the Queen’s behalf, take the appropriate action with the EU commission. The basis of this is that it is the government that conducts foreign policy and agrees treaties and this would be an action relating to that area of competency. Moreover May has insisted that the Brexit negotiations are so complex and subject to such potential dissent from other EU members, who state that they intend the UK to suffer through Brexit, that it would hamper the UK’s ability to gain a good deal by discussing in public its negotiating hand in advance.
Leading Brexiteers are also concerned that Remain MP’s are in the majority and may try to de-rail Brexit if triggering Article 50 has to require Parliamentary consent. Nigel Farage has gone so far as to say that there is a risk of betrayal of the referendum result: “I worry that a betrayal may be near at hand“.
Why should Parliament have a say?
Opponents have argued that this is a bit rich coming from Brexiteers who claimed that Brexit was needed to reassert Parliamentary sovereignty. However there are also more powerful arguments at stake.
Central to those arguing for Parliamentary consent was that a major change was about to be initiated that affected all UK citizens and their rights in fundamental ways and that this would, under the UK constitution, require legislation in line with the rule of law and the right of consent, in other words Parliamentary consent. The referendum result could not be a substitute for this under the UK constitution.
Put another way, to activate Article 50 by royal prerogative would violate key constitutional principles going back hundreds of years. It was the titanic struggles of the 17th Century that finally, in the settlement after the Glorious Revolution of 1688, asserted that the Crown could only pass laws with Parliament’s consent. Moreover in that same century it was the English judiciary that asserted the core principle of the rule of law, first laid down in 1216 in Magna Carta and reasserted in the 1610 Case of Proclamations. As Chief Justice Coke stated, “The King has no prerogative but that which the law of the land allows him”.
In the High Court decision, one could hear the roar of the ghosts of history down the ages. The Lord Chief Justice, Lord Thomas of Cwmgiedd, said on Thursday:
“The court does not accept the argument put forward by the government. There is nothing in the 1972 European Communities Act to support it. In the judgment of the court, the argument is contrary both to the language used by parliament in the 1972 act, and to the fundamental principles of the sovereignty of parliament and the absence of any entitlement on the part of the crown to change domestic law by the exercise of its prerogative powers.”
Parliament is sovereign. There you have it.
This is however now the subject of appeal and the case goes to the Supreme Court in December. In the meantime, political forces are realigning around how the Government may or may not proceed.
Brexiteer fury and the politics of Brexit
Brexiteers have reacted predictably. The Brexit press was furious and verbal attacks have been launched on the judiciary. The Daily Mail’s headline was “The enemies of the people”, referring to the judges. This has prompted the legal profession to come out in the judiciary’s defence. They have argued that it is also central to the UK constitution that due legal process be respected. Such inflammatory language can undermine confidence in our legal system, particularly with regard to such fundamental issues.
As stated in this blog, the UK system already faces a crisis of legitimacy, which is reflected in the unrest we have seen over the last few years. When people feel sufficiently disconnected from the political process, consent is undermined. This is how revolutions happen, when people refuse to accept the process by which political decisions are made.
We are already seeing the consequences of such questioning in the US presidential election, where for example Trump has threatened to dispute the election result and vigilantes are expected to appear at polling stations.
Like Trump, Brexit campaigners have argued that a remote “metropolitan” elite controls and manipulates the system and connives in a remote EU bureaucratic control over the UK to British people’s detriment. One context of this is the unrest of the “left behind” in various parts of the UK referred to in this blog. The desire is to “take back control”, or, one could say, feel empowered once again. Thus attempts to get Parliament to have a say in the Brexit process, given the Remainer majority, is viewed with deep suspicion.
What form of Brexit?
Those defending Parliamentary consent say they respect the result of the referendum, to leave the EU, but state that the referendum, notoriously, did not answer the question of what form Brexit should take. This takes us to the heart of why Brexit is fraught with difficulty.
To be brief, “hard” Brexit is thought likely to take the UK out of the single market and the customs union, where we would revert to World Trade Organisation rules, and thus inflict a massive hit on UK GDP. “Soft” Brexit would, depending on which version you consider, retain the single market/customs union, but at the cost of free movement of labour which was the key issue driving the Brexiteers’ campaign, and oblige us to accept EU decisions over which we would have little influence. It is thought that most MP’s are likely to take the opportunity of Parliamentary involvement to exercise leverage in favour of soft Brexit.
The political battle is now entering a fascinating, if not perilous stage, and we could yet see a general election to help resolve the impasse.