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Brexit, Article 50 and the constitution of the UK

The result of the referendum has thrown the UK into a constitutional crisis of a severity not experienced in my lifetime. We are starting, already, to see attempts to recalibrate the constitution. Battle lines of power, political will, and law are being drawn.

Four horsemen of a constitutional apocalypse

First, there was a rush to argue the consequence of the vote. For some, the referendum was advisory; when Parliament legislated for it, it chose to say nothing about the consequences of the outcome. For others, it was a clear statement of will of the people, which demanded immediate respect and immediate action. That demand was dealt an immediate, if perhaps temporary, blow by the resignation of the Prime Minister.

Second, people started to actually think about the mechanism of Brexit. Article 50(1) of the Treaty on European Union makes the apparently neutral (and perhaps obvious) statement that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. What, please, are those constitutional requirements? Might they include a vote in Parliament, or even a second referendum?

Third, fractures in the United Kingdom widened, with the SNP attempting to start negotiations with the EU on its own membership and raising the prospect of second independence referendum, with similar views receiving support in Northern Ireland.

Fourth, and most bizarrely, the Labour Party threw itself into an existential crisis. Its Parliamentary party decapitated its leader, voting overwhelmingly to depose him. But the leader simply responded by saying that his power came not from his Parliamentary party, but from elsewhere. He would not budge. If he was challenged, he would win again. In terms of the British constitution, there is a case to be made that this side show is in fact the main event.

For once, there is more than a passing interest in constitutional law. However, there is a risk of the law being misstated and misused for political ends. Leading lawyers are writing letters to the papers stating “the law requires X”, expecting that they will be believed without question, and without troubling non-lawyers with any nuance in the argument. This is an abuse of the law, and of intellectual power.

These are my initial attempts to unpack the crisis by reference to basic principles of constitutional law. Because we have an unwritten constitution, the answer to a crisis may be more difficult to discover, and in some circumstances the answer is supplied in the political rather than legal sphere. But there will be an answer.  

Two sources government power

The power of central government comes from two sources: Parliament (through legislation) and what is often called the “Royal Prerogative”. The idea of the prerogative is that it is a residue of discretionary authority which is left in the hands of the Crown, and deployed by the government of the day. When Parliament legislates on a particular issue, it squeezes out the prerogative. So if the government has a power from an Act of Parliament to buy potatoes, subject to various controls, it cannot avoid those controls by saying that it is buying potatoes under the prerogative.

The prerogative power to conduct foreign affairs, including making and breaking treaties, is relatively unrestricted. Treaties have an odd place in English law, because we operate a “dualist” system whereby the government signs treaties to bind the country as a matter of international law, but the treaties are not part of English law until they are incorporated through legislation. In other words, you cannot sue someone in an English court for breaching a treaty, unless Parliament has allowed you to. The traditional way of enforcing treaties is to start a war rather than issue a writ.

A further features of the prerogative is that, since at least the 1980s, the Courts have been willing to supervise the way it is used through judicial review. That means that if a prerogative power is used on an irrational basis, for instance, an affected person can seek an order from a Judge quashing that exercise of power and stopping it from happening again. However, there is a twist to this, because whilst the Courts were emboldened to interfere with prerogative powers generally, they have traditionally declined to interfere in certain areas on the basis that they lack the competence to do so – the concept of “justiciability”. As a result, there is case law at the highest level which suggests that the exercise of the treaty prerogative should not be interfered with by a domestic court.

This is an important point. If someone says that the law requires something to happen, but in fact no-one can deploy the machinery of the law to secure that outcome, can it really be said that the law requires it?

Prerogative or legislative power?

In March this year, the Foreign Secretary was asked in Parliament whether a further vote in Parliament would be required to give effect to a “leave” vote in the referendum. He said that it was not. The implication is that the government regarded this as a matter falling within the prerogative.

There are several arguments against this, set out in detail here. These are strong arguments from respected lawyers which have been endorsed by others.

However, there are also arguments to support the Foreign Secretary’s position. Parliament has legislated as to when the government’s actions in making and breaking treaties requires the approval of Parliament in the Constitutional Reform and Governance Act 2010. At first glance, that Act does not suggest that Parliament’s approval is required to give notice under Article 50. More specifically, the European Union Act 2011 sets out where various decisions under the Treaty on European Union require the approval of Parliament, or indeed a referendum. Article 50 is not mentioned. In both passing both Acts, Parliament had the chance to bring Article 50 under its control, but did not do so. This might explain why the Foreign Secretary thought that no further approval was required.

Who should sort out this question? The first option is to go to Court. Whilst the Court is unlikely to interfere with the decision to give notice under Article 50 for the reasons explained above, there is a strong and perhaps overwhelming argument that it should rule on the process.

The second option is to go to Parliament. Whilst the Court can decide whether, as a matter of law, Article 50 can be triggered by prerogative powers, it cannot decide whether that is a good idea. Parliament can decide that: it can legislate to remove the prerogative in this area, or to lay down rules for its exercise. This would put the matter beyond doubt, without having to drag the Courts into what is essentially a political question as to whether the outcome of a referendum should mandate a Prime Minister to take action which appears to be opposed by Parliament.

It is worth adding that, whilst they are vested in the government rather than in Parliament, prerogative powers are not exercised in a vacuum. There is an inextricable link between Parliament and the government. Ministers are drawn from Parliament, make decisions collectively in Cabinet, and are held accountable to Parliament. If they lack the support of Parliament, they lose their jobs, since the person invited to form a government is (generally) the person who can command a majority in the House of Commons.

Whose power is it anyway?

Part of the leave campaign’s argument was to emphasise the need to regain “sovereignty” and to make “our own laws”. Whilst some leavers presumably would wish for further constitutional change, it is a safe assumption that many took the view that it is Parliament that should be sovereign and making the law.

Parliamentary sovereignty is a basic tenet of the British constitution; Parliament can do as it pleases. Note that this is not Parliament as an agent for British people. It is Parliament as the decision-maker. It occasionally does what it pleases in a way which does not command majority support amongst the public – such as scrapping the death penalty.

The democratic legitimacy of Parliament in the UK is derived through the application of the principle of representation: the will of the populace is enacted through members of Parliament. This is the key to our present crisis. If the word “democracy” is captured by those who would want it to mean direct democracy, then they tear down the entire system. We have never operated on the principle of direct democracy, but on the principle of representative democracy. There are many good arguments in favour of that system. I for one think that out of this crisis, it is the most important thing to fight for. As Martin Loughlin wrote:

“... if political authority does not derive from the establishment of a top-down system of authority, then  neither does not rest in the “will of the people”, whatever this confused notion might mean. If the expression reflects a belief that this “will” is discerned by an aggregation of the desires of the multitude, then is leads not to authority but to impotence... [P]olitical power is the product of representation. Only through representation can conflict be positively harnessed, appropriate governing arrangements devised, and real political will established”.

The reality is that people cannot agree on many things. Even when they do agree, the decision of the mob is often not the right decision. Some people can’t accept that, particularly if they think that the choice of prospective representatives on offer is not good enough. But no functioning democracy for a country of this size has ever or will ever work through direct democracy.

Democracy, in the UK and elsewhere, is not power shared by all. It is power held by a few, as representatives of everyone else. The list of representatives can be revised every five years through an election in which everyone can vote, but that is the full extent to which the populace hold power.

And – it might be said – this is the fundamental way in which the referendum has misled people. They were led to believe that they had the power, when in fact they didn’t. The problem, perhaps, with making people think that they have the power, is the repeated evidence that those with power tend to misuse it. So if you suggest to a racist idiot on a tram in Manchester that he suddenly has power, he will use that power to further his racist idiocy.

A big question is this: how do we regain the principle of representative democracy, without bringing the whole edifice down?     

Turning back the four horsemen

My answer to turning back the tide of constitutional crisis is to reaffirm our faith in Parliament, and in representative democracy. I think it is, in fact, the only viable answer.

First, Parliament must assert control over pulling the Article 50 trigger. It is remarkable that no-one thought to legislate for this before, but there is time to legislate now. True it is that the courts may be asked to rule on the point, but what if they say that the prerogative to pull this trigger still exists, and what if the courts become the subject of national outrage in either event? Unlike the judiciary, we can vote out the House of Commons if we don’t like what they do; which is why it should be for that House to rule on this point of huge national controversy.

The case for taking this action now is overwhelming. The person vested with the prerogative power, if it exists, will not be a person who has won a general election. It will be a person selected by the Conservative Party membership to be Prime Minister. The legitimacy of his or her decision on this issue – which will go to the heart of our national identity for the foreseeable future – could be called into question if it is made without Parliament’s support.

Second, if Parliament decides it would wish to ignore the will of the people expressed in the referendum, it should seek to renew its democratic mandate through a general election. This is not to say that Parliament is bound by the outcome of the referendum. Parliament can obviously make unpopular decisions, and it should retain its right to do so. But if individual MPs know that a majority of the national electorate would wish them to pull the Article 50 trigger, surely they should wish to take question back to their constituents if they proposed not to follow the outcome of the referendum. The case for this is made stronger by the fact that the majority Conservative government, elected last year, promised an “in/out” referendum on EU membership. Ignoring the outcome without the democratic check of an election would be dangerous.

Third, the Scottish Government should wait until the constitutional crisis in Westminster is resolved before attempting to take another step towards independence. It promised to do so only if there was a fundamental change in the UK’s constitutional arrangements. At the moment, there is no such change. Precipitating a second crisis before the first is resolved would be careless to say the least.

Fourth, our political leaders need to respect Parliament, the institution and its members. They must recognise that they have no separate legitimacy other than that deriving from Parliament. That means that if he cannot command the support of his Parliamentary party, Jeremy Corbyn must stand aside. To do otherwise is to fail to respect Parliament and its power, and to encourage your supporters to do the same.

If we rally around Parliamentary democracy, the apocalypse can be avoided. There is no short cut to resolving this crisis through the Courts, and beware the lawyers who tell you otherwise.