(Image: Josh Hallett, Eton - Windsor Berkshire, UK, https://creativecommons.org/licenses/by-sa/2.0/)
An important part of the case for Vote Leave was the perceived undemocratic character of the European Union and the 'democratic deficit' of its institutions. But just how democratic are we in the UK? We have a hereditary head of state. Ironically, she is of German ancestry (me too). She has a Greek husband (I myself have Greek relatives, but that is all we have in common). By law, the monarch is the person who is the descendant of Sophia, Electress and Duchess Dowager of Hanover next in line to the throne and a Protestant (Act of Settlement 1700) .
The government is not your government or my government, it is Her Majesty's government. Ministers retain certain powers under the royal prerogative, which are left over from the days when they really were the King’s or the Queen’s ministers.
Members of the European Parliament are elected by proportional representation. Members of the House of Commons are elected by first past the post. We rejected a (flawed) proposal for electoral reform at a referendum in 2011. Our parliament, which of course includes the Lords, has the right to make or unmake any law it chooses, unconstrained by a higher body of law contained in a constitution.
The referendum result has created a constitutional crisis in which these and many other aspects of our constitution have been thrown into sharp focus. The call by Vote Leave to take control and make Britain sovereign again seems to be having the opposite effect. We now have a (‘sovereign’) parliament with a majority of MPs who would prefer to remain in the EU representing a nation that voted out. Parliament appears impotent - and not just over EU membership. Whatever you think of George Osborne or his long-term economic plans, they were the policy of an elected government. But following the referendum, and as a result of the economic uncertainty it created, the Chancellor has now had to abandon his fiscal target.
A central problem is that the referendum is only advisory. There are two reasons for this. Firstly, the European Union Referendum Act 2015 essentially only required there to be a referendum. Parliament could have included a requirement on the government to take certain steps in the event of a yes vote, or a yes vote over a certain threshold, but did not do so. Compare this to the Parliamentary Voting System and Constituencies Act 2011, which introduced the referendum on the alternative vote. That required the government to introduce the AV system in the event of a simple majority.
But there is another reason why the result is only advisory: parliament can make or unmake any law it chooses. The constraints on parliament ignoring the wishes of the electorate expressed in the referendum are political rather than legal. Our parliament could quite properly do something that thwarted the wishes of the electorate, whatever those wishes were. Parliament could, for example, decide that we must now stay in the single market and retain free movement. That would lead to further loss of faith in our political institutions and further divisions in the country. That said, the political landscape could look very different in a year or so.
The process of leaving the European Union is set out in Article 50 of the Treaty of the European Union. Article 50 requires a member state to notify the EU of its intention to withdraw and obliges the EU to try to negotiate a ‘withdrawal agreement’. There has been much discussion about when the UK must notify the EU, but there has been rather less focus on the very first paragraph of Article 50. This states that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. What exactly are our 'constitutional requirements'? Do we even know?
The view from the EU is that the result of the referendum is sufficient to trigger notification under Article 50. This is plainly wrong as a matter of domestic - that is, UK - law. So what legal steps have to be taken to trigger the Article 50 process? Put very simply, there are at least three different points of view, although this post barely scratches the surface of the arguments.
the government could use powers to make treaties under the royal prerogative;
it could use powers under existing legislation, particularly the European Communities Act 1972;
Parliament could pass a European Union (Withdrawal) Act to amend the 1972 Act, which on one interpretation does not contemplate withdrawal
On the first analysis, foreign affairs and negotiating treaties are matters for ministers, acting under the royal prerogative. When David Cameron made his speech on the morning after the referendum, he said that the timing and substance of the Brexit negotiations would be a matter for the next government. He did not say anything about the need for parliamentary approval.
But prerogative powers may not be enough. Legal authority to begin the Article 50 negotiations may require a ministerial Order in Council under the European Communities Act 1972 or indeed an amendment to the 1972 Act.
A further complication is that the courts have said that where parliament passes legislation authorising government to do something that would previously have been done under the prerogative, then that something can only be done under the legislation passed by parliament. It would be an abuse of process to frustrate the will of parliament or to pre-empt something to be done by using powers in legislation made by Parliament.
The academic debate revolves around different interpretations of the meaning of the legislation and the legality of the use of prerogative powers. A full account of these different points of view is outside the scope of this post. These issues are discussed in great detail on the UK constitutional law blog and at public law for everyone
Why does it matter whether the authority to begin negotiations comes from the royal prerogative or from legislation passed by parliament? It matters because parliament must assert itself so representative democracy takes back control from direct democracy - from the wishes of the people expressed in the referendum. It is important even if the majority of MPs - who support Remain - agree with Theresa May that Brexit means Brexit.
This is not to criticise the principle of a referendum. There is a lesson here from Scotland. Before the independence referendum, the Scottish government produced a lengthy White Paper setting out exactly what people would get if they voted for independence.
Of course, parliament will play a role whatever happens. But the exercise of prerogative powers to negotiate an exit treaty would only ever lead to parliament being consulted. For example, there does seem to be an emerging constitutional convention - in the sense of a rather British flexible rule – that parliament will be consulted before the exercise of the prerogative power to deploy the armed forces. When David Cameron lost the first Syria vote, he took it as a parliamentary instruction not to send in the troops. The constraints on him were political rather than legal. It would be open to the government to consult parliament before beginning the withdrawal process and indeed a parliamentary debate is quite likely. But an order exercising powers under the 1972 Act (even though it would be made by Privy Council) would be subject to parliamentary approval, and therefore essentially democratic, whereas the use of the prerogative is inherently undemocratic. But on the other hand, surely a Parliament that blocked Brexit would also be undemocratic?
Some academics argue that the 1972 Act does not apply here, but say that a new Act is unnecessary because of the prerogative powers that exist. If the 1972 Act does not apply, because it does not contemplate withdrawal, then Parliament must take back control and pass a further Act to amend the 1972 Act so that it can authorise withdrawal.
There has been some talk of an application to the courts in support of the argument that Parliament must decide. The judges could be asked to issue a declaration, setting out the state of the law. But the courts are reluctant to intervene in matters of high foreign policy and also in many matters best left to parliament and to the court of public opinion. An appeal for crowdfunding to instruct a QC on whether parliament should make the decision to leave the EU has reached its target.
So much for the start of the withdrawal process. At the end of it all, we will either enter into a treaty the EU or we will be out on our ear. We will then need to start negotiating treaties with EU states and with other states too. Once those treaties have been agreed, they need to be ratified in order to become binding. Ratification of treaties used to be entirely a matter for ministers acting under the royal prerogative. However, the Constitutional Reform and Governance Act 2010 gives the Commons a veto on the ratification of treaties that would make it it unlawful for the Government to ratify the treaty. The Lords do not have such a veto. It is uncertain whether this power would apply to the withdrawal treaty, but it will apply to future trade treaties. So we can expect more constitutional fun and games in a few years' time - a consequence perhaps of piecemeal reform of our constitution.
Where does all of this legal uncertainty leave us? The supreme irony of all of this is that many voted Leave to take back control and to reclaim sovereignty. But the next step towards leaving could involve the use of the royal prerogative. Moreover, parliament could quite properly and lawfully now do something which would make many who voted for a Brexit feel cheated.
As Roger Masterman and Colin Murray say, ‘the ability of the constitution of the United Kingdom to respond to the ebb and flow of political and societal change has long been presented as a strength, and as one of the defining features of a system whose fundamental features have otherwise remained relatively stable.’ No longer. Our constitution has been put under great strain and is showing its weaknesses. A written constitution, perhaps drawn up by a constitutional convention and adopted by a referendum would not be a panacea. But it would provide greater clarity of the respective roles of government and parliament and assert the representative character of our democracy. Many people who voted Leave felt excluded, both politically and economically. The challenge on those of us who support a written constitution is to appeal to those who feel excluded and to convince them that a written constitution would make them feel included once again.
*Eton mess is a traditional English desert made of crushed meringue, strawberries and whipped cream.
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