Following Gina Miller's case, the High Court decision on Brexit has shown that Theresa May’s plan for Brexit is at odds with the UK’s unwritten constitution. Although the Government plans to appeal the decision, and the Supreme Court will have the final say, the decision this week has already changed the rules for Brexit.
- The most fundamental axiom of the British constitution is that "Parliament is sovereign" (or to use the full phrase “The Crown in Parliament is Sovereign”). Only an Act of Parliament is law, and nothing else, only law made by Parliament can repeal or change existing law. This is the meaning of British sovereignty.
- In the European Communities Act 1972, the British Parliament enacted the European treaties and EU law into British law, which Parliament is sovereign to repeal legally and democratically at any time.
- In fact, the European Communities Act has become a central part of the British constitution, possibly the single most influential and significant piece of legislation on the books in the UK (the Court explicitly says this)
- Triggering article 50 leads inevitably and irreversibly to the repeal of the European Communities Act, and this amounts by definition to legislative action, which will fundamentally affect the rights of UK citizens.
- The Royal Prerogative for the government to conclude agreements in international law can only be exercised if those agreements do not directly affect British laws or the rights of British citizens.
- The Court defines three categories of rights that may be affected when article 50 is triggered (i) rights given by the EU law which the UK government could choose to replace, like workers' rights or environmental standards (ii) rights of UK citizens in other EU Member States, like freedom of movement and work (iii) EU rights that could not be replicated in the UK, like being elected as an MEP, or appealing to the ECJ.
- Crucially, the UK government accepted that these rights could or would potentially be violated in some form or another once the UK withdraws from the EU. In a sense, they lost their own case once they accepted that.
- The government tried to argue that the Royal Prerogative was available to them because Parliament had not explicitly prohibited them from using it. The Court dismissed the government's claims as "divorced from reality", and held that the crucial constitutional importance of the European Communities Act came before any other consideration in requiring an Act of Parliament to change.
- Nothing the Court said is controversial. It simply stated the law which every British law student learns in their first introduction to law class at university. It is really that basic.
After the ruling, Brexiteers have been saying:
- "The UK government has been using the Royal Prerogative to conclude agreements with the EU for the past 40 year."
False. UK government powers to act within the EU come from the European Communities Act, as explained clearly in the court judgment.
- "The referendum means that the British people are sovereign, and Parliament should not get in the way."
Also false. Britain is a constitutional monarchy, and thus “the people” have never been sovereign, and never asked to be sovereign (except during Oliver Cromwell's brief stint). Only Parliament is sovereign, through Parliament’s legal arrangement with the Queen.The idea of "the people" being sovereign comes from the French and American revolutions, and has never been applied in the UK, although we may feel affinity with the phrase. (Whether or not the UK's sovereignty should remain dependant on Parliament's historic agreements with the monarch is a different question altogether).
Parliament is elected to represent its people, and use its best judgment to do what is best for constituents. This is the British sovereignty that Brexiteers fought for, and all the Court did was state British law, as it has been for hundreds of years.