UNITED KINGDOM – LONDON – It is more than six months since Britain voted to leave the European Union, yet the people of Britain still have no clear idea what Brexit means. The “Brexit means Brexit” facile non-sequitur is no longer tenable. The first hurdle is triggering Article 50 of the Lisbon Treaty. There is no clarity on the legal process to begin Brexit negotiations with Britain’s 27 EU partners. There is even less clarity on how the British Government intends to conduct the negotiations or what they are actually aiming to achieve. This does not bode well for the negotiations or for future democratic governance in the UK.
Article 50 stipulates that “Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements”. The British Government’s interpretation of this text is that it can trigger the two-year negotiating process using the ‘Royal Prerogative’. This would mean they could bypass both Parliamentary scrutiny and having to enact primary legislation. In other words, the Government believes that they can unilaterally decide to take away the rights of British citizens that were originally conferred to them by Parliament on 1st January 1973. This was done through the ‘1972 European Communities Act’, the act of Parliament that made the UK a full member of the European Communities.
The ‘Gina Miller versus The Secretary of State for Exiting the European Union’ case, currently before the Supreme Court in London, challenges this interpretation and seeks to defend one of the fundamental tenets of the British constitution and rule of law. The legal challenge is based on the constitutional principle that Parliament is sovereign. This aspect of sovereignty was established over 400 years ago and asserts, in no uncertain terms, that the government of the day, acting as agents for the Crown, cannot by exercise of prerogative powers, override legislation enacted by Parliament. Above all, it cannot diminish or take away from its citizens rights that were conferred to them by Parliament, such as the rights that British citizens enjoy as Members of the EU. First among those rights is the freedom to take up residency and live in any of the other 27 Member States, as currently more than 1.2 million British citizens have done. The Theresa May Government is determined to invoke the Royal Prerogative to change domestic legislation and take away rights from British citizens. This would not just undermine parliamentary sovereignty, but it would also set a dangerous precedent.
It is important to stress that the Gina Miller challenge was never intended to go against the will of the people expressed in the June 23rd EU Referendum. On the contrary, by seeking to ensure that the Government respects and acts within the rule of law, the Gina Miller challenge is profoundly democratic.
This is why the question before the Supreme Court now is whether a Parliamentary decision, in the form of primary legislation, is constitutionally necessary before the Government can start the process of taking the UK out of the EU by triggering Article 50.
The Gina Miller submission is that the royal or crown prerogative is a residual power reserved for the conduct of international relations and the making and unmaking of treaties. In other words, prerogative powers end where domestic law begins. Consequently, it is our view that the Government does not have prerogative power to decide that the UK should withdraw from the EU, nor can it lawfully notify the European Council of any such decision without being authorised and instructed to do so by Parliament. The High Court in London last October ruled unanimously in favour of Miller et al. Mrs May’s Government chose to appeal to the Supreme Court against this unanimous ruling.
If the Supreme Court was to rule in the government’s favour and the Government was to trigger Article 50 without consulting Parliament, Britain would risk entering a new and, potentially, autocratic phase. A constitutional legal precedent would be established that any government could bypass Parliament and decide which rights ordinary citizens keep or loose. In the specific light of Brexit, this would mean that the Theresa May government could and would have the power to decide amongst themselves, behind closed doors, which rights under the EU Treaty to strip away from British citizens and which they would keep. A constitutional precedent set by a government taking such drastic action without consulting Parliament would be a dangerous political issue for Britain, and would rock the very foundations of Britain’s constitution.
Fundamental principles of the UK constitution, such as the rule of law, the separation of powers, representative Parliamentary democracy, sovereignty of Parliament and the independent judiciary, together provide the very framework within which the people can express themselves democratically and enjoy living in freedom. Each and every one of those principles is critical for the functioning of Britain as a free and fair society and each one of them must be protected each time they are under threat.
Consequently, by seeking legal certainty through British Courts, we are seeking to ensure an informed, detailed and responsible debate within the British Parliament and between Parliament and Government, so that Brexit is brought about not only in respect of the law and according to the unwritten Constitution of the United Kingdom, but also in the best interest of the British people and democracy. No Government can be allowed to violate the most basic of British constitutional rules – that it is only Parliament that can grant rights, and only Parliament that can diminish or extinguish rights. This is why Gina Miller put her head above the parapet and this is why she was prepared to endure whatever backlash was to be expected.