For many centuries, the story of much of English and British history has been a tale of Parliament and the estates it represents, attempting to attain influence and power over the monarch. The first and perhaps still most well-known instance of such matters took place at Runnymede in the year 1215 when Magna Carta (the Great Charter) was signed by King John.
In the 17th century, The English Civil War was fought on the basis of the rights of Parliament versus the rights of the monarch and after the restoration of the monarchy in 1660, the Glorious Revolution of 1689, affirmed the gradual trend that Parliament would remain sovereign and in most instances superior to the whims of the monarch.
In modern Britain, the King or Queen is constitutionally compelled to accept that Parliament acts in His or Her name, irrespective of the personal views of the monarch. This is why Britain is known as a Constitutional Monarchy rather than an Absolute Monarchy.
Whilst many of these concepts may seem somewhat quaint or archaic when debating about the very here and now nature of Brexit, the role of Parliament vis-à-vis the monarch is playing a rather large role in determining the trajectory, viability and practicability of Brexit.
Recently, a concerned individual called Gina Miller brought a lawsuit against the British Government in an attempt to stop the government from invoking Article 50 of the Lisbon Treaty without a Parliamentary vote.
Legally the concept involved is that of Royal Prerogative. Royal Prerogative is a term used to denote the King or Queen making a decision without a Parliamentary vote of approval. In modern terms it is not the Queen herself making the decision but her government. Ultimately such responsibility falls on the Prime Minister.
Prime Minister Theresa May has indicated that she intended to use Royal Prerogative to invoke Article 50, the process whereby an EU member declares its decision to exit the Union. This had many Parliamentary scholars up in arms for several reasons.
First of all, in Britain, referenda have no legal status. They happen infrequently and when they do they are considered ‘advisory’ rather than legally binding, unlike in other countries where they are fully legally binding. In Britain, an official government referendum ought to be thought of like a giant public opinion poll. It will doubtlessly sway the opinion of the government and much of Parliament, but ultimately it can legally be ignored. Whether it ought to be morally or ethically ignored is another matter altogether.
Secondly, Royal Prerogative in the modern age, is generally reserved for declarations of war and even then, most recent declarations, including the controversial illegal war in Iraq was subject to a Parliamentary vote where the majority of Parliament cowardly followed Tony Blair down a road to hell. In this sense trying to use Royal Prerogative for Brexit was a foolish move.
Today, the High Court in London ruled that the British Government cannot use Royal Prerogative for Article 50 and thus a Parliamentary vote must be taken. This throws the governments strategy to legitimise the referendum into disarray but beyond this, it may not have lasting impacts on Britain’s Brexit. In any case the Government can appeal the ruling. Whether this would be a wise political move is up for debate.
There is however, a much more fundamental legal issue at hand here. The issue relates to the concept of Parliamentary Sovereignty. Parliamentary Sovereignty is a concept in English law which allows Parliament to be the sole arbiter of any law. It can create and end any piece of law at any time it sees fit. There is no check or balance on Parliament in the way that certain legislative bodies around the world are held to account by written constitutions, supreme courts or foreign treaties. In Britain, Parliament can do as it likes.
This then leads to a discussion of Britain’s legal obligations to the European Union. Whilst many European legal scholars believe that EU treaties are superior to the laws of national legislatures, in the eyes of many British legal scholars, this does not apply to Britain. When Britain entered then the European Economic Community (aka Common Market), the legal basis was an Act of Parliament called the European Communities Act of 1972.
This Act incorporated European law into British law and provided Parliament with a mechanism whereby every time new European legislation was made, it was the 1972 Act which allowed such laws to enter into force in Britain. In this sense, every time Parliament votes on a new European act or treaty being incorporated into British law, it is done so under the auspices of the 1972 Act. So when for example, Britain had a hotly contested vote in 1993 concerning the ratification of the Maastricht Treaty, the debate from a technical point of view was less about the treaty itself than it was about whether to incorporate the Maastricht criteria into the existing European Communities Act.
Theresa May has said that she intends to repeal the 1972 European Communities Act. Whether she knows it or not, this literally means exiting the EU from the perspective of British law as it means repealing all pieces of EU legislation incorporated under the terms of the act, up to and including association/membership of the EU. In this sense, Britain doesn’t legally need to invoke article 50 at all in order to leave the EU. According to Parliamentary Sovereignty, by repealing the 1972 Act, Britain will have already left!
Practically speaking however, this is not a very fraternal gesture as it would mean reneging on Britain’s international treaty obligations. If Britain wants a ‘good deal’ from the EU in Brexit, leaving under the terms of British law rather than both British and European law, isn’t exactly the way to go about it, even though it is legally possible. It would create more problems than it would solve.
All of this is symptomatic of both a remain and Brexit side who did not enter into the debate with any legal preparations. This is not the end or the beginning of anything. It’s just another of many unforeseen legal stumbling blocks on the road to confusion.
Post-Script: Should the Government appeal the decision, no further ruling will be made until 2017. Should it come to a Parliamentary vote, people ought to remember that Theresa May quietly campaigned to remain in the EU. If she has to vote in Parliament will she vote her ‘conscience’ or vote according to her new imagine as Brexit Queen?
Making matters worse, one of the many calamitous pieces of legislation that David Cameron left behind is the Fixed Term Parliaments Act of 2011. This act takes away the ancient right of the British Government from deciding when to prorogue Parliament and hold a General Election. However, in light of today’s High Court ruling, a general election is exactly what the country needs. It will represent a true referendum on the EU and unlike the referendum of June 2016, it will be one which is legally binding. It should have happened anyway, but David Cameron’s toxic legacy continues to plague British democracy and traditions.