Contrary to many misconceptions, Britain’s recent EU referendum was not legally binding. The UK does not have constitutional provisions that would require the results of the EU referendum to be implemented.
Instead, the EU referendum was “consultative” only, enabling the electorate to “voice an opinion,” which can then influence the government’s policies.
In a parliamentary democracy, government policies are usually subject to parliamentary scrutiny and a vote.
Therefore, the British government’s plan to implement Brexit (by triggering Article 50 – the “notice to quit” the EU) following the referendum should also be subject to parliamentary scrutiny and a vote.
However, the government has refused to promise MPs and peers a vote on the Brexit decision. Instead, it’s now widely anticipated that the government will use an archaic “common law” procedure, called “the Royal Prerogative,” to proceed with Brexit without Parliament’s authority.
The Royal Prerogative originated as the personal power of the monarch, going back to 13th-century England when the King or Queen ruled supreme. Today, the Royal Prerogative allows decisions to be made by a government without the backing of, or consultation with, Parliament
Until quite recently, the function and use of Royal Prerogatives were masked in mystery, with requests to reveal them refused by the government.
But, in 2003, Parliament’s Commons Public Administration Committee managed to obtain more information about Royal Prerogatives from the Department of Constitutional Affairs. Subsequently, they listed under what circumstances a government could use the Royal Prerogative to bypass Parliament.
In domestic matters, the Royal Prerogative covers:
- the issuing and withdrawal of passports
- the appointment and dismissal of ministers
- the appointment of Queen’s Counsel
- the granting of honours
- the appointment and regulation of the civil service
- the commissioning of officers in the armed forces
- the dissolution of Parliament
- the calling of elections
In foreign affairs, the Royal Prerogative covers:
- the declaration of war
- the making of treaties
- the recognition of foreign states
- the accreditation of diplomats
One of the more unusual Royal Prerogatives is the royal ownership of all swans in Britain.
According to the entry by Wikipedia about the UK’s Royal Prerogatives:
“Prerogative powers are exercised nominally by the monarch, but on the advice of the prime minister (whom the monarch meets weekly) and of the cabinet. Some key functions of the British government are still executed by virtue of the Royal Prerogative, but generally the usage of the prerogative has been diminishing as functions are progressively put on a statutory basis.”
One prominent Labour MP and former government minister, the late Tony Benn, campaigned unsuccessfully during the 1990s for the Royal Prerogative to be scrapped. He argued that all government powers should be subject to Parliamentary scrutiny and require Parliamentary approval.
Although Royal Prerogative allows a British government to go to war without Parliament’s approval, in recent times that has not been the practice. For example, former Prime Minister Tony Blair sought the permission of Parliament before going to war with Iraq in 2003 – but because of the tradition of the Royal Prerogative the result was only advisory, not binding.
In 2005, the then-Labour government said that new Royal Prerogative powers cannot be invented. In any event, over the years, various prerogative powers have become redundant and never expected to be used again, for example, the Royal Prerogative power to press-gang men into joining the Royal Navy.
Some of the Royal Prerogative powers have also been diluted by new legislation or challenged through the courts by legal judicial review.
In my view, the use of the ancient, mysterious, and archaic Royal Prerogative to implement Brexit without the scrutiny or approval of Parliament is totally unacceptable.
Britain is a parliamentary sovereignty and it is absurd that Parliament should not now be allowed to consider and vote on the EU referendum result and subsequent government policy, especially as Brexit involves a major constitutional change for Britain and her future direction.
It is somewhat ironic that one of the prime arguments of the Leave campaign during the referendum was that Parliament should have more sovereignty. So how could any Leave supporter now argue against Parliament having an opportunity to scrutinise and have a say on the government’s Brexit policy following the EU referendum?
In my view, anyone – Remain or Leave voter alike – who believes in Britain’s system of parliamentary sovereignty should object to Brexit being implemented without the involvement of Parliament.
There are now going to be legal challenges against the government’s anticipated decision to deny Parliament an opportunity to have a say on the government’s Brexit plan following the referendum result.
However, this is not about challenging the outcome of the referendum (that we already know). It’s all about preserving and maintaining Parliament’s role as the UK’s supreme legal authority.
The relationship between statute and the use of the ancient Royal Prerogative has long been contentious.
One of the legal arguments against the use of the Royal Prerogative to implement Brexit is that parliamentary intention should always take precedence over prerogative power. Therefore, the Royal Prerogative cannot be used to initiate the withdrawal process from the EU. Instead, it must be Parliament that does so.
As the legal saying goes, “Statute beats prerogative.”
Or to put it another way, if the British Prime Minister’s use of the Royal Prerogative to implement Brexit changes any parliamentary legislation (such as the European Communities Act 1972, which was the law passed by Parliament to approve Britain’s membership of the European Community), the Prime Minister will have arguably breached Britain’s constitutional law.
The importance of this legal action isn’t to do with the referendum outcome (Parliament may well decide, if given a vote, that it has to accept the referendum advice for Britain to leave the EU).
The legal action is about process, not outcome. It’s about what role Parliament should have in the decision for Britain to Brexit. It’s about not allowing the government to set a precedent in modern times by pushing through major constitutional changes without the approval of Parliament.
If Parliament is given an opportunity (as I believe it should be) to properly debate and authorize the government’s Brexit policy following the referendum, MPs will also be able to challenge and take into account the poor quality of the referendum campaign (many agree that the Leave campaign “lied to win”) and the fact that the majority vote for Britain to leave the EU was wafer-thin.
In the meantime, those who still want Britain to remain in the EU – and that includes myself –should not rely on this legal challenge to reverse the Brexit decision.
Instead, we should hope and push for other legitimate and democratic opportunities for the Brexit decision to be reviewed and reconsidered.
After all, democracy does not end with one vote and nobody gives up their beliefs because they lose an election – they fight on in the hope of winning another election.
At this stage, I can only think that the Brexit decision might be legitimately reconsidered if there is another referendum specifically to approve or reject the Brexit terms when they are known. Such an option, however, is unlikely to be offered by the current Conservative government.
Alternatively, the Brexit decision could be put to the electorate in a General Election, which has to take place at the latest in May 2020 under Britain’s new ‘five-year fixed-term’ election law. It’s possible, although unlikely, that Parliament could call for an earlier General Election.
It’s also possible, and some even say likely, that by 2020 Britain will not have left the EU. The LibDems, although a minority party, have promised that they will campaign in the next General Election for Britain to remain in the EU. The Scottish National Party, which is also strongly pro EU, will likely campaign on the same platform. The Green Party may also do the same.
We don’t yet know what the Labour Party position will be, because they are currently two contenders for the party’s leadership, both with completely different outlooks on the EU.
Labour’s current leader, Jeremy Corbyn, has stated that the EU referendum vote for Brexit must be respected and cannot be overturned. But his challenger, Owen Smith, has said that if he becomes leader the Labour Party will vote against triggering the Brexit process unless the government agrees to put the final Brexit deal to the British people. The leadership result will be known by September 24.
The EU referendum has split Britain in two, with 48% voting for Britain to remain in the EU, and 52% voting to leave.
The current Prime Minister, Theresa May, before the referendum stated that Brexit would be bad for Britain’s prosperity and security, but she has now switched position and promised that ‘Brexit means Brexit’ (even though, so far, she’s not explained what Brexit means).
In the meantime, my advice is that all those who earnestly aspire for the Brexit decision to be cancelled should try their best to persuade as many of the 52% who voted “Leave” to change their minds. That’s the only way it can work in a democracy and the only way us Remainers could win next time (assuming we are lucky enough to have a “next time”).
- House of Commons Library Briefing Paper published a year before the EU referendum regarding the function and scope of the referendum (see in particular page 25).
- More details about the Crowd Justice People’s Challenge to the Government on Article 50
- Declaration of interest: Jon Danzig is running a campaign for Britain to remain in the EU. More details on his Facebook community page Reasons2Remain
Jon Danzig is an award winning medical and investigative journalist, formerly at the BBC. He specializes in writing about health, human rights and the European Union. More at: http://www.jondanzig.com