Disclaimer: I should note, in the interests of transparency, that I consider myself a supporter of the so-called “Leave” campaign.
Earlier last month, in Her Majesty’s High Court of Justice in England, Lord Chief Justice Baron Thomas of Cwmgiedd and two other justices issued a unanimous decision in R (Miller and Dos Santos) v Secretary of State for Exiting the European Union. Her Majesty’s High Court, the tertiary court within the English legal system, heard the case after British businesswoman Gina Miller and other proponents challenged Prime Minister Theresa May’s intention to activate Article 50 of the Lisbon Treaty on the prerogative of Her Majesty’s Government. The court agreed with Miller that Her Majesty’s Government, which holds (in de facto) the royal prerogative, could not trigger Article 50 without the explicit consent of the legal body that had ratified the Treaty of Lisbon: the Parliament of the United Kingdom.
The decision attracted a somewhat acrimonious reaction from the public and media. The reaction was not entirely unwarranted. Four months before the decision, the British public voted 52%-48% against continued membership in the European Union. The court ruling, therefore, must have seemed to the British public (unafflicted by so-called “Bregrets”) to be a denigration of their democratic privileges. But there is myriad of complexities that dilute the referendum result. Not unlike most countries, including the United States, the United Kingdom is not a direct democracy. Instead, the supreme legal authority of the United Kingdom is vested in the bicameral houses of Parliament, which are sovereign and inviolable on legislative matters. For the past five-hundred years, parliamentary sovereignty has been maintained as the foremost constitutional convention, developing from interactions between the monarchy, the nobility, the clergy, and the commons. From the Statute of Proclamations (1539), the Case of Proclamations (1610), the Bill of Rights (1689), and the Act of Settlement (1700), Parliament has been the sole legislative actor in the United Kingdom.
In the past forty years, however, British politicians have advanced referendums that have threatened the very principle of parliamentary sovereignty. Before 2016, the British government (and the devolved governments) conducted three referendums, all of which maintained the status-quo and thereby prevented a conflict between populace and Parliament. In other legislative corridors, Parliament siphoned off its own power through treatise, seceding authority to devolved assemblies, the European Union, and newly created courts. But in principle, parliamentary sovereignty was maintained. The logic was simply: what parliament giveth, parliament can taketh away. But to depart the European Union is a different beast. In an ideal historical alternative, the British public would have elected a majority of “euroseparatist” MPs, who would have then proceeded to either activate Article 50 or unilaterally nullify Britain’s agreements with the European Union. Instead, David Cameron concocted a half-baked policy platform, scored an unexpected election victory, and was forced to legislate for a popular vote.
The national referendum is a dangerous political device. The United States has been wise enough to reject the principle of popular sovereignty since its misuse in the mid-19th century with regard to the expansion of slavery. And while individual states still conduct referendum, there has never been a non-electoral nationwide poll on a specific issue. If there ever was, the same question would arise: who has supreme power? The entity that legislated the referendum or the body that participated? In the British circumstance, the issue was compounded by the principle of royal prerogative: the Queen’s executive power that is bestowed upon the Prime Minister and Her Majesty’s Government. Prime Minister Theresa May and Secretary for Exiting the European Union David Davis believed that the royal prerogative allowed Her Majesty’s Government to bypass the legislator and enforce the popular will. The Government’s view was somewhat quixotic — Parliament had ratified the European Union’s treaties and had legislated for the referendum. The power to enact departure, therefore, would have seemed to be vested in Parliament. Nonetheless, the combination of popular sentiment (demonstrated in the referendum) and executive authority (demonstrated in May’s bypass of Parliament) threatened to dislodge parliamentary sovereignty and violate the unwritten constitution.
There was little presentiment (bar an exception from Peter Hitchens) that the referendum would trigger a constitutional crisis. And yet, the referendum’s mere existence imposed a ‘higher’ authority above Parliament; an obvious transgression on parliamentary inviolability and the British constitutional structure. The people are not autonomous in government; they are involved in it. Degrees of power separation, whether through legislative representation or judicial power, is the accepted mode of governance among Western countries; not the supremacy of the popular will. Despite acrimony from the ‘Leave’ camp, the recent decision from Her Majesty’s High Court has preserved the very parliamentary sovereignty that the ‘Leave’ campaign lionized throughout the campaign. In order to maintain the principle, the Supreme Court of the United Kingdom must uphold the ruling from the High Court on appeal, and Parliament must thereafter legislate for a complete withdrawal from the European Union. If the predominantly europhile political parties in Parliament refuse to legislate for Brexit, the United Kingdom will suffer a political crisis that will force the dreaded question upon the British constitution: who rules?