PRACTICE NOTES
CONSTITUTIONAL LAW
The implications of Brexit:
Who is sovereign now?
The real-world power of the executive and legislature has been substantially diminished by
withdrawal from the EU, writes Miranda Butler
Miranda Butler is a barrister at
3 Hare Court. From 2014 to 2015
she was the judicial assistant to
Lord Kerr at the UK Supreme Court
@3harecourt
www.3harecourt.com
T
he Vote Leave campaign
invited the public to
‘take control’ by voting
to withdraw from the EU.
Brexiteers were offended by
the power of EU institutions to
pass laws which could overrule
those made in the UK and
argued that a vote to leave
would make parliament
sovereign once again. But has
the Brexit vote made the UK
parliament sovereign, as was
promised, and, if so, what is the
nature of such sovereignty?
The formal process of
withdrawing from the EU will
be triggered, of course, through
the mechanism contained in
article 50 of the Treaty on the
Functioning of the European
Union (TFEU). Article 50(1)
provides that: ‘Any member
state may decide to withdraw
from the union in accordance
with its own constitutional
requirements.’ There is a
general consensus that the UK’s
constitutional requirements
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mean that the actual triggering
of article 50 will be carried out
by the government using the
treaty-making prerogative of
the Crown.
A more controversial
question is whether the UK’s
constitutional requirements
demand parliamentary approval
for the government to trigger
article 50. I suggest they do.
Parliamentary sovereignty
was at the heart of the Leave
campaign. It would be
profoundly ironic if, having
voted to take back sovereignty,
so as to ensure parliament is the
UK’s supreme legislative body,
the legislature were excluded by
the executive from the process
of triggering article 50.
Furthermore, following R v
Secretary of State for the Home
Department ex parte Fire Brigades
Union [1995] 2 AC 513, the
prerogative cannot be used to
frustrate the will of parliament as
expressed in primary legislation.
Thus, triggering article 50,
which would in effect nullify
the European Communities
Act 1972, must as a matter of
constitutional necessity require
a vote in parliament and, in all
likelihood, primary legislation.
If this argument is correct,
it will mean that another
prerogative power, like the
ability to declare war, has
become subject to the prior
approval of parliament. This
would shift the focus of our
constitution further away from
the ‘elected dictatorship’ of the
prime minister, wielding the
Crown’s prerogative powers,
to a more democratic model
asserting parliament’s
sovereignty. So far, so
compatible with the desire
to ‘take control’.
Does the newly reinvigorated
sovereignty of parliament mean
that it has greater power than
before? While parliament’s
constitutional status may be
enhanced, I suggest that the
real-world power of the
executive and legislature has
been substantially diminished.
Even with the triggering of
article 50 still a distant prospect,
Northern Ireland and Scotland
have gained greater status from
their threats of independence.
Our new prime minister’s first
visit was to Scotland’s first
minister, Nicola Sturgeon.
Theresa May has been forced to
concede that she will not trigger
article 50 until the devolved
executives agree to a ‘UK
approach’ for EU negotiations.
If no satisfactory deal is done,
the UK looks likely to disunite,
leaving parliament sovereign
over England and Wales alone.
Once Brexit negotiations
begin, power will be in the hands
of the EU institutions that enjoy
final approval of any agreement,
while the UK nervously watches
the clock count down to the
two-year deadline, at which
point the country will be
unceremoniously thrown
out of the EU if no deal has
been made, and relegated to
deeply unfavourable World
Trade Organisation terms.
Whatever deal is struck,
will parliament want to rewrite
so-called ‘foreign’ laws
reflecting the globalised
world in which we live?
Brits get injured overseas:
an EU Council directive provides
for appropriate compensation.
Flights are delayed, causing
misery: again EU legislation
provides a solution.
From fisheries to food
poisoning and the environment
to Erasmus, over the last
40 years we have implemented
laws that recognise the need to
collaborate with our neighbours
to resolve problems which do
not respect borders. The UK
will continue to be affected by
these factors; after leaving the
EU we will have no influence in
shaping its response. Parliament
may, in the Diceyan phrase, be
able to ‘make or unmake any
law whatever’, but only within
the UK. Britain can no longer
influence EU law, yet EU law
will still affect British interests.
The Vote Leave campaign
failed to explain the distinction
between sovereignty and
influence, so carefully
elided by the word ‘control’.
A sovereign parliament may
have ultimate legal power,
but little geopolitical influence.
Throughout the 20th century
the UK traded sovereignty for
influence; by ceding power to
international bodies such as
NATO, the Council of Europe,
the UN, and EU, the UK has
retained influence in world
politics. By ‘taking control’
the UK may have enhanced
its sovereignty, but is set to
lose much of its power. SJ
26 July 2016 SJ 160/29
PB
22-Jul-16 11:07:07 AM