Brexit Judgment Highlights Paradox of Popular Will and Parliamentary Sovereignty

As individual leaders rise the world over, the UK Supreme Court's Brexit judgment is an acknowledgement of old-school constitutional values that popular will ought to be channelised only through a legislative body.

Britain's Prime Minister, Theresa May, speaks to the media outside number 10 Downing Street, in central London, Britain July 13, 2016. Credit: Reuters/Peter Nicholls

Britain’s Prime Minister, Theresa May, speaks to the media outside number 10 Downing Street, in central London, Britain July 13, 2016. Credit: Reuters/Peter Nicholls

On January 24, 2017, the UK Supreme Court gave a historic ruling that promises to have wide ramifications on British constitutional law. The court stated, inter alia, that any move to trigger an exit from the EU by the UK (popularly known as Brexit) would require parliamentary approval. The case was R (on the application of Miller and another) vs Secretary of State for exiting the European Union. The immediate effect of this 11-judge bench ruling, split 8-3, is that Prime Minister Theresa May is not permitted to unilaterally initiate an exit policy under the framework of Article 50 of the Treaty of the European Union (the relevant article of the EU Treaty laying down the mechanism for an exit) claiming to exercise the prerogative powers on behalf of the crown.

Limiting May’s power and subjecting it to parliamentary control requires a deeper analysis in the context of powerful presidents and prime ministers emerging the world over. Though there are fundamental and well-acknowledged differences between presidential and parliamentary forms of government, the Brexit ruling, at its heart, is an acknowledgement of old-school constitutional values that popular will ought to be channelised only through the route of a legislative body and not by executive heads of state claiming to exercise unaccountable power in a framework that calls itself parliamentary. In an era where charismatic leaders are expected to take leadership roles and a CEO model of governance compatible with the interests of globalisation is emerging as the ideal model even at the cost of popularly-elected legislative assemblies and legislative elections, in effect all being about electing a powerful executive head of the state, the emphasis on parliamentary supremacy comes as a welcome measure.

Ironically enough, the proponents of Brexit are extremely critical and even contemptuous of the Miller judgment, taking the stand that the ruling is an attempt to overrule by judicial fiat the will of the people. Paradoxically, the champions of Brexit want the executive to play a dominant role in initiating the exit process – curiously doubting the capacity, intention and goodwill of the democratically elected parliament to give effect to the ‘leave’ vote even to the extent of questioning the motives of the judges in the aftermath of the November 3 high court ruling on the subject. Such attacks on the judiciary are disturbing, to say the least, and reflect a situation where faith in institutional actors has touched a new low. This irony is not lost when a major rationale for exiting from the EU was the war cry to restore to parliament its erstwhile glory in managing national affairs and regain the supposedly lost notion of ‘national sovereignty’ from the clutches of the supranational EU. Pitting the idea of ‘rule of law’ (a principle which requires a limited government and checks on executive power) as a necessary component of the governance structure based on parliamentary sovereignty, the Supreme Court felt it wise to route the exit process through the parliamentary channel alone.

Concept of prerogative power

The ruling states that the sphere of power known as ‘prerogative power’, once exercised exclusively by the crown and now by the crown through the prime minister and the cabinet, has witnessed a history of continuing limitations and any exercise of this power in the Brexit context must yield to the sovereignty of parliament. Prerogative power has historically referred to a conglomeration of powers, privileges and immunities exercised by the crown without parliamentary approval. Over time, most of these powers devolved to the prime minister and cabinet, who practically exercised the same in the name of the crown without the necessity of parliamentary intervention.

Regulation of the civil services and award of national honours are among the main examples of prerogative power, where legislative intervention is not deemed essential. Thus the domain of prerogative power refers to a class of powers exercised on the discretion of the highest executive authority without parliamentary intervention, provided they don’t conflict with common law and statute law. However, since triggering an exit from the EU would result in rights of UK citizens getting curtailed as a large number of EU rights are today firmly incorporated in the British legal system through the European Communities Act, 1972, the exit from EU requires a broader legislative deliberation. Thus cutting the EU umbilical cord from Britain would in effect see the elimination of these rights which can only be done under the leadership of a sovereign parliament and not by the prerogative powers of the crown exercised by the prime minister and the cabinet. It should be recalled that the June 2016 Brexit referendum was only an attempt in ascertaining popular perceptions with regards the EU and withdrawal from an international treaty, the law mandating the referendum, the European Union Referendum Act, 2015 was silent on the way forward in the aftermath of the popular vote.

A sea gull flies past the Houses of Parliament on an overcast summer's day in London, August 4, 2009. Credit: Reuters/Andrew Winning

A sea gull flies past the Houses of Parliament on an overcast summer’s day in London, August 4, 2009. Credit: Reuters/Andrew Winning

The legal nature of treaty termination

A significant question that arises is the nature of treaty making and treaty termination. Traditionally, the powers to enter into treaties and revoke the same were powers believed to be in the domain of the executive. However, there have existed two views with regards the power to withdraw/terminate from treaties. The dominant view is that the power continues to remain an executive one, despite the fact that termination may have domestic policy implications involving rights of citizens. However, there exists a strong contrary view that believes that termination of treaties should stand on a different footing as treaties necessarily go through a process of incorporation with domestic law (either directly or indirectly) and the executive ought to lose its major role once a treaty is enforced. The legislature then becomes the appropriate authority to terminate a treaty, since it is now intrinsically intertwined with domestic law and policy. The second view is in line with the dualist principle of viewing international law and municipal law as independent spheres where treaty obligations are incorporated into domestic law only with parliamentary approval, prior to which they remain obligations in the sphere of international law. The dualist demarcation of the EU law as applicable to the domestic UK context is a key facet of the judgment. It is precisely this logic coupled with the historic idea of parliamentary supremacy in the UK and an ever-receding zone of prerogative powers that lies at the logical root of the Miller judgment.

While parliamentary supremacy in England has historically been used to limit sovereign powers claiming to derive its legitimacy from popular will in numerous conflicts with the crown, it is paradoxical that the exercise of power today is being viewed with suspicion and mistrust. The Brexit judgment in this regard is a landmark which promises to reshape contemporary debates on the complex interplay between popular will and parliamentary sovereignty in the wake of increasing individualised and personalised forms of political leadership gaining traction across the globe.

Abraham Joseph is a PhD candidate in international criminal law from NLSIU, Bangalore and an assistant professor at the Ansal School of Law, Ansal University, Gurugram.