Last week, on the 24th January, the Supreme Court ruled that Theresa May’s cabinet does not have the authority to envoke Article 50 of the Lisbon Treaty without a parliamentary vote. This case reached the Supreme Court after the High Court gave the same ruling. In response to the original High Court ruling, the Daily Mail, vying to reach peak demagoguery, brought us the infamous “Enemies of the People” headline. At the same time the Liberal Democrat leader Tim Farron now claims that the prospect of a parliamentary vote is a chance to block the UK from ever jettisoning from the European Union. Similarly, Green Party MP Caroline Lucas wrote in the Gaurdian that she would like to see Parliamentary vote used to veto the type of deal the UK gets with Europe, and while Jeremy Corbyn has insisted that he wants to honour the public’s decision, a senior Labour party source told the BBC that between 60 and 80 MPs might decide otherwise and vote against triggering Article 50.
For my part, though in favour of remaining in the European Union, I was an eager supporter of turning the decision over to the British people. I thought it essential to enduring membership with a political union with as murky a conception of democracy as the EU. Moreover I find attempts from fellow people on the left wing to sweep the vote under the carpet as an example of infantile contempt for democracy and, in the case of Farron, an attempt to pass off cynical pandering as principled politics. So why did the judges rule that triggering Article 50 requires a Parliamentary vote? Why does the referendum result not stand on its own? And if not, who is to blame? A brief explanation of the case itself will make this clear.
To withdraw from the EU, a country must invoke Article 50 of the 2007 Treaty of Lisbon. This is one treaty in a long line drawn up and ratified since the original 1957 Treaty of Rome that created the European Common Market. When the United Kingdom joined the ECC in 1973, the government signed A Treaty of Ascension, retroactively ratifying all previous treaties and, since joining, the UK has ratified all subsequent treaties. The executive branch of our government (Theresa May and her cabinet) wanted to invoke article 50 using “the royal prerogative.” This is the term given to the political powers that, once belonging to the monarch, fell to the cabinet as our island crawled slowly away from the despotism of a king, to representative democracy. The term is as vestigial as the crown jewels on display in the Tower of London and the ER on our every post-box. This prerogative allows the cabinet to propose budgets, declare war, and, yes, sign and withdraw from international treaties. Therein lies the argument made by May’s cabinet that it can trigger Article 50 without consulting parliament.
Our membership of the EU is, however, contingent on more than just our signature of various treaties. The other prong of our union is the 1972 European Communities Act, which was passed alongside the singing of ascension treaty, and enshrines laws introduced by the European Parliament as law within the United Kingdom. To trigger Article 50 would be meaningless without repealing this act.
The Supreme and High Court’s rulings rested on the decision to uphold the sovereignty of Parliament as the only branch of government allowed to repeal an act of Parliament. The precedent for this dates back to 1610 and the then Chief Justice Sir Edward Coke who ruled that royal prerogative could not be used to overrule the authority of parliament. Coke ruled that since acts of parliament grants certain rights to citizens, only the legislative arm of government (Parliament) can remove those rights granted to the people by legislation. To grant the cabinet this power would, hypothetically, give ministers the power to over-turn any British law without a word needed from Parliament.
Unless parliament expressly allows it, this power cannot be taken up by the executive branch. As the ruling noted, the 2015 Referendum Act (that granted the public the chance to vote on our membership of the EU) did not contain a provision granting the cabinet the power to repeal this act. Without such a provision, the power continues to lie with Parliament.
Law is never open-and-shut, but this about as close as you can get. As I hope is clear from, the argument is not remotely political and is entirely legal. The UK’s constitution is un-codified, scattered across scraps of paper, wrapped up in traditions and rituals, and laid at the feet of a monarch both omnipotent and impotent. As such, the principle of Parliamentary sovereignty on the matter of legislation, dating back to Coke’s ruling, is the nearest thing to constitutional bedrock in British law.
Now we come to our second question: where does the referendum fit into all of this? Parliament may be sovereign, but they have the right to submit questions to the public as they did in the 2014 Scottish Independence referendum. Why then did the 2015 Referendum Act (that granted the public the right to vote on our membership of the European Union) not give the power of choice to the people, as we were told it did?
The answer is that, as already mentioned, the 2015 Referendum Act did not contain a provision allowing the government to trigger Article 50 in the event of a majority vote to leave the EU. Neither the High Court nor the Supreme Court are to blame for this: the constitutional case is clear (as clear as it gets), the problem instead lies with the legislation. As such, the party at fault is the person that the left have spent the last six years haranguing: David Cameron. Cameron’s government drafted the referendum act and it is hard to imagine that they were unaware that without a provision giving the cabinet the right to repeal the European Communities Act, a parliamentary vote would inevitably have to be called at some point. The issue is not so much that the referendum was non-binding, but that it ignores a constitutional principle nestled at the core of our democracy. If the Referendum Act had been sufficiently strong, it likely never would have passed through the House of Commons, which was and remains mostly loyal to the EU.
Cameron has been accused of calling this referendum under the presumption that the UK would never have voted to leave. The discord between feeble nature of the legislation and Cameron’s insistence that the referendum was historic seem to support this point. This also helps explain why Cameron resigned rather than immediately triggering Article 50 on referendum day as he repeatedly promised he would. Such a move would have been extremely unpopular with any of his successor’s, even the most arch of Brexiteers among them, as it would have significantly weakened the UK’s negotiating position with Brussels. Once again, it begins to look more likely that Cameron never thought he would have to do any such thing.
Casting this decision as political seems perfectly natural, given how many times we had to sit through the awful cliché “once in a lifetime” this summer. As we stand in 2016’s wake, nothing seems more remarked upon than how momentous a year it was. The political events of this year gone by are compared to the movements of the planet beneath our feet – seismic, tectonic. Pundits and politicians alike were keen to emphasise that the United kingdom’s vote to leave the European Union is a point on which history turns. But the constitutional question at the heart of this Supreme Court ruling dwarfs even the referendum. Had it sided with the government, the Supreme Court would have been following one of two paths. Either, the court would have found a way to nuance and subvert a principle resting at the core of our democracy enough to make an exception just this once. Alternatively, they would have overturned this principle, granting unprecedented and virtually unlimited power to the current cabinet and those yet to come.
Leaving the EU would and will undo a union of 40 years – overturning the ruling of Chief Justice Coke would break a precedent of 400. To try and look at this story with an apolitical eye is perhaps asking to much, but if we continue to do so with an ahistorical one, our aim will be forever misdirected and we will remain the prisoners of squabbles we had last year, never capable of lifting our eyes above the talking points and polling data from a single vote in June of 2016.