Today, the High Court ruled that the British Government cannot provide notification to leave the European Union without first seeking the approval of Parliament. Whilst this is still subject to appeal in the Supreme Court, I have written a brief guide in plain-English as to the Constitutional aspects at play here.
What is a Royal Prerogative?
The Government initially wished to use a Royal Prerogative to notify the rest of the EU that it intends to leave the EU. Royal Prerogatives are effectively powers of the Crown that the government exercises in the day-to-day running on the country. Here are some examples of Prerogative powers:
- appointment of public officials (ministers, judges) and giving honours
- declaration of war, making of peace, movement of the military
- pardoning criminals and reducing their sentences
- issue, withdraw and refuse British passports
As you can see; these powers are very far reaching and none of these need the consultation of Parliament. In the United States, the Constitution grants Congress the sole power to declare war - in the United Kingdom, the power to declare war lies with a Royal Prerogative. In recent times Parliament has usually been consulted on decisions of war and peace, but there is no legal right to this.
Prerogative powers previously allowed the dissolution of Parliament, but this was repealed by Nick Clegg’s Fixed-term Parliaments Act 2011.
There exist other powers given to the Executive, but through Acts of Parliament; for example, Section 40 of the British Nationality Act 1981 allows the Home Secretary to deprive people of their British Citizenship (a power Theresa May used widely when she was home secretary).
What is Parliamentary Supremacy
The British Constitution is wholly “uncodified”, there is no single document containing it. To add to this, a significant part of the Constitution is unwritten; which often makes it difficult to explain.
In the UK, Sovereignty lies with Parliament - not the people. A. V. Dicey summarised Parliamentary Sovereignty as this:
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
In short, this asserts that Acts of Parliament are Supreme; Parliament can make or unmake any statute regardless of whether it breaks International Law, treaties binding the United Kingdom or if it alters Common Law.
The European Union Referendum Act 2015
The legislation which allows there to be a referendum leaving the European Union contained no clause to explain what would happen next. As far as the law was concerned, this was purely advisory.
In order to initiate the process the British state would need to notify the European Council that it wished to withdraw, in accordance with Article 50 of the Lisbon Treaty.
As the rights given, when joining the EU were conferred by an Act of Parliament (in the European Communities Act 1972) the High Court has ruled that these rights can only be removed by Parliament.
Regardless of the opinion of the electorate, the only legal opinion that matters to the judiciary is that of Parliament as demonstrated through an Act of Parliament. Regardless of whether there is public agreement or not.
The will of Parliament is exercised by the legislative process in the House of Commons, the House of Lords (subject to the Parliament Acts) and subject to a Bill being turned into an Act through Royal Assent (signing into law by the monarch). The Parliamentary process can therefore heavily slow down the process should the Government need to enact an Act to notify the European Council that the UK seeks to leave the EU. This is especially true, given that the Government doesn’t have a majority in the House of Lords; meaning legislation can be delayed here for a year before the Commons can override the Lords.
Is Parliamentary Supremacy Ultimate?
Contrary to popular opinion, the European Union is not supreme over the UK; this was reaffirmed in the European Union Act 2016 where Part 3 states:
Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.
Ironically, this law which was pushed by so-called Eurosceptics, can now be used to argue that solely Parliament has the authority to trigger Article 50 of the Lisbon Treaty.
Whilst there have been some constitutionally significant Acts (e.g. Human Rights Act 1998), most of these are clearly revokable should Parliament wish to do so. There is however one recent exception to this.
The Scotland Act 2016 (after the Scottish Independence referendum) amended the Scotland Act 1998 to enshrine a promise by the UK Government that the Scottish Government and Parliament would be permanent:
(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.
(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.
(3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.
It would clearly need to be tested in Court as to whether this was truly exempt from Parliamentary Supremacy.