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Battle for Brexit: A Thoroughly Constitutional Issue

Megan Schaub (3L) & Joe Sellman (1L)

A Brief Brexit Background

In the United Kingdom’s 2015 election, the Conservative Party led by David Cameron won 331 out of 650 seats—a slim Parliamentary majority. This result was achieved with an even less impressive ~37% of votes. The legitimacy of this thin majority is further undermined by the fact that, according to “The Guardian,” there are currently a number of investigations being made into Conservative Members of Parliament for violating election spending rules.

Nonetheless, based on this mandate, and for various political reasons that we will not delve into here, Prime Minister Cameron initiated a non-binding referendum that took place on June 23, 2016, to ask Britons whether the UK should leave the European Union. The result: another narrow majority, with 51.9% of voters in favour of a British exit, or Brexit, and 48.1% against.

On the heels of the result, Prime Minister Cameron, who’d campaigned for the remain side, resigned. He was replaced by Theresa May, who had also campaigned to remain in the EU. She became the leader of the Conservative Party in a leadership race where all the other leadership hopefuls withdrew before it came to a vote. There was no general election. Interestingly, David Cameron had previously remarked of his predecessor, Gordon Brown, who found himself in a similar situation to Theresa May, that he didn’t “have the mandate, he wasn’t elected as Prime Minister, and he should go to the country.” Western Democracy. Funny that.

And so here the UK sits, with an “unelected” Prime Minister at the head of a party with an uncertain majority, who claims that her mandate is Brexit, of which only a bare majority are in favour, preparing to invoke Article 50 of the Lisbon Treaty, which will give them two years to negotiate the many terms of departure.

Much has been written about the analysis of the referendum vote across different geographic regions and demographics; about the promises made to the voting public; about the economic effects; the politics, the parties, and the people. However, some truly interesting points emerge when we consider the constitutional implications of triggering Article 50 and the Brexit process.

Constitutional Issues

Article 50 stipulates that a state may leave the EU “in accordance with its own constitutional requirements.” Prime Minister May asserts that she has the mandate to execute Article 50 based on the result of the referendum and that her power to do this resides in the prerogative powers the Executive inherited from the Crown.

However, a case was recently brought before the High Court arguing that triggering Article 50 requires an Act of Parliament. The claimants argued that the UK entered the EU through an Act of Parliament, the European Communities Act, in 1972 and that the same should be true of the process to leave. The claimants have also argued that the 1689 Bill of Rights prohibits the use of prerogative powers where they would interfere with statutory rights, some of which are found in the European Communities Act.

Government lawyers argued that the prerogative powers to enter into treaties, and by extension to leave them, has not been limited by Parliament. They argue that had Parliament wished to so constrain the prerogative powers, particularly in relation to Brexit, they could have done so in the past, but they did not and so the power remains. The Government lawyers additionally argued that it is not as though Parliament will be completely shut out of the Brexit decision-making process as it is likely that the terms of the EU negotiations would be ratified by an Act of Parliament. However, many have remarked that there is a distinct difference between voting on whether to commence the exit process negotiations and voting to ratify a series of treaties that are the product of those negotiations.

The High Court has ruled in favour of the Claimants, finding that an Act of Parliament is required. The Prime Minister has indicated that she will appeal this case to the Supreme Court. If she wins the appeal, then she can invoke Article 50. If she loses, then she has two options, either: risk a vote on an Act of Parliament that could go either way, or not invoke Article 50. The problem, regardless of the outcome, is that the losing side is likely to claim it is a loss for democracy. Either the democratic will of the people in electing parliamentary representatives (the representatives who mostly supported the remain side) will be suppressed, or the democratic will of the people directly voting on the referendum will be suppressed.

And this does not even begin to delve into the constitutional issues surrounding Brexit in relation to the devolved administrations in Wales, Scotland, and Northern Ireland and their positions in the United Kingdom.

These constitutional challenges will be enlightening and will undoubtedly have a significant impact on the UK’s understanding of their prerogative powers and constitutional law. What is certain, regardless of the outcome, is that Brexit will have legal eagles on the edge of their seats for the foreseeable future. Sit back and enjoy the show.