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The UK Government is Trying to Pass Brexit by Bypassing Parliament

Written by Jon Danzig

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”).  

 

 

 

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

55 Comments

    • @wojathome Responding to your Volksverräter ‘repeat’ comment specifically. While the Daily Mail seem intent on living up to their gutter press reputation with the headline “Enemies Of The People”, the claim of a repeat of history is a stretch too far. There is no ‘race’ accusation within the DM headline. therefore there is no parallel, no repeat. Maybe if they had gone with “Enemies of the (white) race” you might be right in highlighting a terrifying parallel, but it’s not. Instead, imo, it’s a wrong-headed headline for other reasons.

  • “Brexit” is a paradoxon, because the Birtish subjects are not leaving Great Britain (or after Scotland and Northern Ireland will have left) but the EU, so it rather should be “EU-ixt”. This being said, the Brits have now a problem: they don’t actually know what they want: leave the EU and become “separated from the continent” or rather stay and have their say how the EU manages to face up to the challenges of tomorrow. The referendum with its rather small “exit” advantage was but an “advisory” vote that must be submitted to final acceptance of the Parliament where the majority is with the “remainers”. So, in order to solve this poblem and in view that the Brits are not citizens but rather “subjects” to the crown, why let let the Queen solve this problem, as she still has the ultimate say in matters that matter (with the exception of her lovely ship that unfortunately the cost of which she can’t afford any more). Leave it up to her, and everyone will be happy to abide.

  • Brexit is simply wrong, is that simple enough to understand?

    The way economics works is largely based on safety, perceived or real.

    Brexit is uncertainity and therefore insecurity = the current fall in the £, companies halting further investments/cancelling long-term projects, relocation out of UK, etc… These are facts!

    The Leave campaign made out like it’s a simple “vote leave = everything will be fine”.
    This is like saying you can still run after we’ve cut one of your legs off…

  • Federal dictatorship rapidly becoming the United State of Europe Federal dictatorship rapidly becoming the United States of Europe? Are the United States (of America) really a “dictatorship”? Or is a president of the U.S. a dictator? I think that this terminology is wrong. What I really don’t like about the EU is that they try to push through CETA and TTIP without putting these deals to EU parliaments for either acceptance or rejection. But facing the world-wide commercial challenges (Chinese, Indian and also U.S. – the latter trying to put through their own interests by all means), I feel that a co-operative E.U. has more effect to protect its members from being affected by U.S. world-market domination).

    • @Thoroughbred What you have written about TTIP is incorrect (similarly CETA).

      I also have misgivings about TTIP, but I also have confidence in the European Parliament, and the overall consensus of the member states of the EU, to ensure that the final deal is a good one.

      If done well, TTIP could be a wonderful deal that will enable the EU and the US to benefit from a free trade that could create tens of thousands of new jobs and be worth billions of pounds to the UK (if we stay in the EU).

      All EU member states have to either approve or reject the negotiated TTIP agreement in the EU, at which point the European Parliament will also be asked for its endorsement.

      The EU Parliament is empowered to approve or reject the agreement.

      In the United States, both houses of the Congress would have to pass the agreement.

      There are several layers and hurdles of democracy to be passed before TTIP can be ratified and we don’t yet know the full agreement being proposed.

      TTIP is not a good reason for Brexit.

      • I might be wrong, but if secret negotiations between the USA and the EU over TTIP have dragged on for such a long time and no consensus has been found over one single issue yet, it is difficult to have an oversight what actually is going on. Why this secrecy? If a U.S. company can file a claim against a European country that changed its laws (i.e. environment protection) and if the U.S. company can sue this country on the grounds of an imaginary loss of profit even though without having made any investment to substantiate such loss, and if the case is brought forward before a tribunal whose judges have been assigned (by whom?) it appears to me as a leverage effect to offset the judicative authority of an individual EU member country. If, on the other hand, CETA will be accepted, TTIP would be superfluous, as U.S. companies can export their goods via their Canadian branch companies.

  • I believe we got the right answer for the wrong reasons. Unfortunately, there was a great deal of FUD (Fear, Uncertainty & Doubt) being thrown around in an attempt to frighten naive voters one way or the other. The only important decision really was: do we want to be part of a non-democratic, federal dictatorship rapidly becoming the United State of Europe, or would we prefer to go back to the British form of directly-elected parlimentary democracy we had enjoyed for many years.

    The people having voted, the powers that be now have a moral obligation to carry out their wishes. A bit of jiggle space to haggle a better deal is fine, but spinning the entire thing so leave becomes remain but called something different is not OK at all.

    Bi-directional trade with Europe is important for both parties, but it is the EU that is stuck on all this free movement rubbish. It is akin to me wanting to swap my potatoes for your tractor but you insisting we can’t trade unless I marry your spinster sister first. The EU is presenting this as a deal-breaker, but it is just something they have managed to bully countries into previously, not something written on tablets of stone sent down from the mountaintop. We negotiated to not be forced into the Euro and we should be negotiating this time to just trade freely.

    • The ‘four freedoms’ – free movement of goods, services, capital and people – are foundational principles of the European Union, enshrined in the Treaty of Rome upon which the European Community’s ideals are based. They essentially work together, and it’s a concept that has worked well for the EU – the most successful union of countries in the world.

      Nobody was forced into this as you claim. All member countries joined the EEC/EU voluntarily and all are free to leave.

      I believe Free Movement of People is a wonderful concept, something that Churchill discussed during the war as a great aspiration for our continent. I for one do not want to lose the right to live, work, study or retire across my continent – just as I am sure people living in Florida would not want to be stopped from moving to Texas, or California, or anywhere else in the USA.

      • “the most successful union of countries in the world.”

        Nope, nobody believes this anymore.

        EU is crumbling. It’s a disaster.

        Either UK is leaving, or this will get ugly.

  • I campaigned for Remain in the run-up to June 23rd. The majority of Leave-inclined people admitted they didn’t know what they were voting for, but “it’ll be ok somehow”.
    One guy actually told me he’s against the EU because of gay adoption. How mixed-up is that?
    I don’t personally believe that most Leavers voted against the EU, but against ‘something else’…

    • I also spoke to many remainers and asked them why they were intending to vote remain and the majority told me they didn’t understand it, the issue was all too complex, so they were going to vote remain to stay the same. I told them the information was all out there online if they wanted to read it. Most told me they were too busy.
      One guy even told me that he was going to vote remain because it would lead to WWIII – how mixed up is that?
      I don’t believe most remainers voted because they were pro EU, I think they just scared because they believed the lies and Gov/Remain’s Project Fear was very effective scaring a significant portion of the 48%, probably the young most of all.

      • Well, I am one ‘remainer’ who was well informed and understood all the issues – and definitely wanted to remain the EU, so kindly go and preach elsewhere. All these flag waving idiots voting leave will soon see the huge damage that they will have done to this country’s international reputation.

        • I said most I’ve spoke to, not all. I do know some people who voted remain who took the time to inform themselves – you say you did – good for you, but you are probably in the minority.
          “so kindly go and preach elsewhere” no, you will not silence me. And your tone of smug arrogance is becoming something of a remain cliché.

      • I voted Remain because I think this country is better off working WITH out European neighbours than not. We live in a European country ….whether we are in the EU or not … I don’t see anything sinister about working WITH other European countries to create a better future.

  • The Supreme Court will soon decide if the argument is valid or not. Fortunately, we still live in a country where the government can be challenged in the courts. We will know the outcome in a couple of months… let’s see.

    • In what a wonderful country you are living, where the government can be challenged in the courts. The only question, of course, is who are the ones who decide what kind of judges are to be appointed in those courts. Are judges appointed by the people or by the governement????

      • Since April 2006, judicial appointments have been the responsibility of an independent Judicial Appointments Commission. Before this appointments were made on the recommendation of the Lord Chancellor, who was a Government Minister.

  • When remain campaign leader and democratically elected rep David Cameron called the ?Brexit ref he announced clearly and openly that a.50 would be called immediately if the gov received a leave mandate. After the resignation of the PM and appointment of a replacement, the .gov have decided to time a.50 more strategically in order to avoid a messy exit and deliver the best result for the country.

    There had to be a losing side in a binary result but resorting to sophistry smacks of desperation.

  • I thought we were regaining our democracy? Mrs May said Brexit means Brexit, I still dod not know what this means, but I do know I expect a higher level of democratic accountability, not some back door manoeuvring remember the slippery slope.

  • Britain’s recent EU referendum was not legally binding. – nor was it democratic since an estimated 2 million Britons leaving in Europe (15+years) were denied the right to vote.

  • What has any of this got to do with the Queen? If she really wanted to she could dissolve parliament, take control of the country and do what she wants. That is the royal prerogative.

  • Wasn’t the argument in favour of leaving supposed to be about Parliament regaining sovereignty? In which case, how can it be consistent with that argument to say it should be circumvented to force Brexit through?

  • Another person against Brexit, we managed for hundreds of years without the EU, won two world wars, rescued most of the buggers that form the E U, hate us anyway, thousands of lives where lost fighting for our freedom, we gave it away now we have got it back, get rule 50 implemented before the anti Brexit children flood and sink England with their tears, you lost grow up give the country a chance, in 10 years you may be able to cheers and say told you so, until then raise the country not cry it down, a vote of the people was cast, stop being babies ,move forwards not backwards.

    • Are you forgetting you killed 100 off thousands of people , those hundreds of years saw very bad things, with organising the EU was the hope never to see wars like that again.

    • Might I ask do you support Parliamentary democracy? Secondly what is your vision for the out come of the Brexit negotiations, in or out of the Single Market, continued free movement or not? If the negotiations are not as you hope for would you want a say or just accept?

    • If the U.K. has a “Royal Prerogative” and the UK is split on the decision whether “exit” dthe EU or not, why not give back this ROYAL prerogative to the QUEEN and let her decide whether to remain part of Europe or part or the “rest of the world”. If the QUEEN has decided none of her SUBJECTS is entitled to question her verdict unless he would risk to be hanged, disembowled and quartered

    • I’m pretty sure you didn’t win any wars, and the millions of war dead certainly haven’t won anything other than being a statistic of greed which incidentally happens to be the driving factor of “brexit”.

      Judging by your rhetoric though you’ll be dead soon yourself so how about you leave the future of the country in the hands of those that will actually be living in it.

      REMOVED

    • It wasn’t decided by the majority of the country – 52% of those voting advised the Government to leave the EU, that equates to 37% of the electorate. I hope the Government take note of the feeling of the people and negotiate a deal with our EU friends and neighbours that is palatable to the majority of the people of the UK, thus enabling us to continue to be an internationalist-minded country.

    • The Leave campaign was based on lies and distortions, racism and xenophobia. The result of the referendum was a complete travesty, and the people of Britain proved themselves to be too stupid to be worthy of a vote.

    • Citation: “We managed for hundreds of years without the EU, won two world wars, rescued most of the ******* that form the E U, hate us anyway… sorry, but we “continentals” actually like the Queen, Ascot races, British understatement, Shakespeare and Ben Johnson, albeit not necessarily the British overcast weather conditions. We appreciate that Britain faced Hitler Germany before the Americans pitched in to end WWII. We Continental Europeans never thought that our British friends would turn their back on the European Union. “Wanting our money back” (off-tone Thatcher) is a mentality of shop keepers. There are more important things in life than money, as the Beatles already found out: Money can’t buy you……(things that can’t be bought!)
      ,

    • If alle British citizens are “subjects” to the crown and if it is the question whether to enforce the verdict of a – possibly misguided and only “concultative – referendum or to give an elected parliament the power to overrule it, the only solution I think is to give the Queen as “ultimo ratio” the power to decide wheter vox populi or the Parliament has to get the prerogative, as “subjects” have to obey what the sovereign has decided.

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About the author

Jon Danzig

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: www.jondanzig.com