1. Introduction
On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.
Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.
2. R (Miller) v Secretary of State for Exiting the EU
In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)? The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.
This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court. Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”
a. Royal Prerogative
The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.
b. Parliamentary Sovereignty
In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’ implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.
2. EU Referendum Act
The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015. The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.
3. Article 50 TEU: Withdrawing from EU
Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.
A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).
4. Looking forward
The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.
The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.
Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.
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*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)
On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.
Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.
2. R (Miller) v Secretary of State for Exiting the EU
In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)? The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.
This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court. Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”
a. Royal Prerogative
The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.
b. Parliamentary Sovereignty
In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’ implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.
2. EU Referendum Act
The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015. The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.
3. Article 50 TEU: Withdrawing from EU
Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.
A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).
4. Looking forward
The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.
The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.
Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.
___________________________________
*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)
