Don’t be fooled: Parliamentary Sovereignty has only won its first battle – The UK High Court Ruling on Brexit

In: European Union

4 Nov 2016

Yesterday, the UK High Court has ruled that Parliament is to have a say both on Brexit terms as well as on the moment that Article 50 TFEU, the provision allowing Member States to withdraw from the European Union, is triggered. This is a major defeat for the government which intended to use its royal prerogative to trigger exit from the EU on its own.

As a result, the UK government has already announced that it is going to appeal the case in front of the Supreme Court, preparing for a ‘constitutional standoff’ between Parliament and government.

While the judgment of the Supreme Court will ultimately be the judgment that counts, this High Court judgment is to be welcomed from a constitutional point of view, that is as per the constitution as it stands today.

Parliamentary Sovereignty is at the very heart of the UK constitution. As Paul Craig has stated in a recent blog post on this issue preceding the ruling, it “is parliamentary sovereignty, it is manifestly not sovereignty of the executive or the government.“

It is, therefore, not the question as ‘to Brexit or not to Brexit’ that is legally contested. Instead, what is contested is essentially the interpretation of the principle of Parliamentary Sovereignty and its scope. Whatever the Supreme Court’s ruling may be, it will have profound influence on the constitutional landscape in the UK.

The principle of Parliamentary Sovereignty in the UK has a long history. Parliamentarism has its roots in the UK and has shaped our understanding of representative democracy like no other, albeit that different forms of representative democracy exist today. Deeply enshrined in constitutional tradition, Parliamentary Sovereignty has now served as the claimants’ principal argument against triggering Brexit without parliamentary approval, a challenge that the High Court accepted today.

The main argument put forward by the UK government, as represented by the Secretary of State for Exciting the European Union in this case, is that the decision to exit the EU falls under royal prerogative (a term to describe government’s residue of legal authority in cases where there is no statute or Common Law available, and which do not alter domestic law and individual rights- see judgment section 24 ff.). The government has argued that Brexit falls under royal prerogative since no provision has been made that exiting the EU needs parliamentary approval.

This interpretation was struck down by the Court mainly on the grounds that (1) Royal prerogative does not apply to the making and (unmaking) of international treaties and (2) Exiting the EU would lead to changes in individual rights, which do need parliamentary approval.

At the same time, the government has also implicitly (during the Court proceedings- see section 105 of the judgment) and explicitly (outside of the Court room) stated that the referendum of June 23rd was a strong enough mandate to trigger art. 50 TFEU:

“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum. We will appeal this judgment.“- Government spokesman on November 3rd, 2016 (emphasis added)

This quote raises an interesting constitutional question. The current constitutional interpretation of Parliamentary Sovereignty states that, by default, referendums can only be advisory in nature. This was affirmed by the High Court in section 106 ff of today’s judgment:

“A referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act.”

What the government (including the Prime Minister), however, seems to suggest (see for example here and here) when reiterating that “Brexit means Brexit”, is that, in case of the implementation of referendum results, the principle of Parliamentary Sovereignty is already adhered to, since an Act of Parliament approves the holding of the referendum itself.

It remains to be seen whether the government will actually use this argument during Appeal proceedings. If, however, the Supreme Court accepts this argument, even only in part, the consequences for the constitutional principle of Parliamentary Sovereignty cannot be understated: referendum results would be elevated to be binding in nature, reversing the traditional relationship between direct democracy and parliamentary democracy in the UK.

Having said that, the more likely result of the Appeal proceedings is probably yet another victory for the claimants. Arguing its way out of the principle of Parliamentary Sovereignty would also result in huge loss of constitutional credibility for the Supreme Court and raise fundamental questions on the nature of UK democracy. Nevertheless, constitutional traditions can be replaced by new constitutional traditions and legalise a loss of Parliamentary Sovereignty. That is the beauty and the danger of a Common Law constitution.

Proponents of parliamentary democracy (and Parliament itself!) should, therefore, continue to be on guard as the battle is not over yet.

Anna Sting

1 Response to Don’t be fooled: Parliamentary Sovereignty has only won its first battle – The UK High Court Ruling on Brexit

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Alessandra

November 6th, 2016 at 09:33

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