Is the UK Supreme Court rogue to un-prorogue Parliament? (original) (raw)
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From the referendum to the High Court
Was it constitutionally necessary for parliament to vote on triggering Article 50? This debate has set the government against the judiciary and led to fierce criticism of unelected judges. It has propelled previously obscure arguments about the location of legal and political sovereignty to the top of news broadcasts and the front pages of the newspapers. the UK electorate voted by 51.9% to 48.1% on a 72.2% turnout that we should leave the European Union (EU). This dramatic and largely unexpected result led to the resignation of the prime minister, David Cameron, and his replacement with Theresa May. Despite campaigning (albeit modestly) for the UK to remain, May quickly asserted that 'Brexit means Brexit', and that it was her intention to trigger Article 50, the part of the 2009 Lisbon Treaty that sets out the process for members leaving the EU, by March 2017. Referendums are a relatively novel aspect of the UK's evolving uncodified constitution, and they are advisory rather than legally binding. This is because the principle of parliamentary sovereignty vests supreme power in the parliament of the day — as parliament's own website says, 'Generally, the courts cannot overrule its legislation and no parliament can pass laws that future parliaments cannot change.' However, although parliament is legally sovereign, the executive (a term normally used to mean the prime minister and cabinet) is sometimes said to be politically sovereign — i.e. that it has the practical ability to exert dominance, due to (mostly) being able to rely on a parliamentary majority and enjoying a range of prerogative powers. Based on this understanding, Theresa May apparently decided to bypass the potential political risks and delays of parliamentary legislation prior to triggering Article 50. In opposition to this, businesswoman Gina Miller and hairdresser Deir Tozetti Dos Santos brought a legal challenge to the government known as judicial review. This is concerned with the procedures taken to make a decision — in this case, exiting the EU — rather than the decision itself. The case was taken to the High Court, which found in favour of the claimants' case that the decision to trigger Article 50 had to be taken by parliament.
ryed@hope.ac.uk @dannyrye The first clause of Article 50 of the Lisbon Treaty states: " Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. " But as has become apparent, in the case of the UK, nobody really knows what those requirements actually are and a significant amount of energy has been consumed over the last two years in disputes over what the respective roles, responsibilities and powers of Parliament and the executive are, what the precise status of the referendum is and who, if anyone, is responsible for interpreting it. The Miller case exposed confusion and uncertainty even over who had the power to begin the process. There is no clear constitutional guidance, either, on how or by whom it should be executed, scrutinised or concluded and, crucially, how and by whom the outcomes should be approved or legitimised. This messiness reflects the UK's famously uncodified constitution, which means its basic rules are not systematically laid out in a single, document which governs the relationships of key elements of the political system. This means that the UK constitution is very flexible which has served it well in some respects, not least in adapting to European Union membership. But it means, above all, that the constitution is political. Above all, sovereignty and power in the British constitution has not been a matter for the courts, as in many codified systems, but has rather been established and maintained by political struggle, which is why the resolution of the question of who should trigger Article 50 by the courts is somewhat problematic in the UK context. A key principle of the British constitution is the notion of 'parliamentary sovereignty' – that Parliament has the sole right to make or unmake law in its territory. For many Eurosceptics, it is this that made the British system incompatible with EU membership, which (as confirmed by the Factortame Case in 1991) instituted a higher body of law over that of statute. But this was merely a qualification of Parliamentary sovereignty, and one which Parliament imposed upon itself and (as Brexit perhaps proves) can also remove. However, even if that qualification is eventually removed, there are, unfortunately for Parliamentary Sovereignty enthusiasts, many more than that. Significant constitutional changes made under the Blair and Brown governments (including devolution and the creation of a Supreme Court), as well as Cameron's (including fixed term parliaments, the creation of regional mayors and English Votes for English Laws), whilst by no means part of any strategic masterplan, have also de facto altered Parliamentary sovereignty. In some respects it has been strengthened – the Prime Minister no longer has the power to dissolve Parliament against its will. In other respects, it has weakened: it has lost control over key areas of domestic policy, including personal taxation, to the Scottish Parliament and the Welsh Assembly. One of the more significant changes in recent years, it turns out, has been the use of referendums to endorse or reject many such reform proposals. It means that, as Vernon Bogdanor has pointed out that a 'new principle … of the sovereignty of the people' has entered into the British constitution (Bogdanor 2016, 314).
Basic Structure tendencies in the UK Parliament Prorogation Judgement
SCLS Law Review Vol 3 No 2, 2020
The recent Parliament Prorogation Case (Cherry-Miller II) of the United Kingdom Supreme Court is being seen as a remarkable development in the constitutional system of United Kingdom. Though the UK started its journey towards a formal system of Separation of Power since 2005, a 'weak form' of judicial review in the nature of constitutional dialogue started since the 1998 Human Rights Act. The UK Supreme Court has shaped the system of judicial review significantly since 2017. The Gina Miller I (2017) was successful in asserting the sovereign parliament's say in the Brexit process and thereby over the foreign affairs power of the executive. With the Supreme Court as an umpire in the power struggle between the legislature and executive, Gina Miller I marked the beginning of judiciary's crippling into a tacit scheme of checks and balances. If Gina Miller I was a silent beginning, the recent Parliament Prorogation Case (Cherry-Miller II) perhaps constitutes a vocal articulation of judicial guardianship over the UK's now-not-invisible scheme of checks and balances. This short analysis tries to argue why and how this is the case.
Comparative European Politics, 2022
Deep constitutional, political and social conflicts have marked the aftermath of the UK’s vote to leave the European Union. Sovereignty has been one of the sites of these conflicts. British Euroscepticism has traditionally mobilized national sovereignty against the EU’s supranational institutions. Since the referendum, the focus has shifted to the meanings and practices of sovereignty within the UK. In this paper, we find that the conflicts of sovereignty provoked by Brexit have primarily been at the institutional level, in the relations between the executive, the legislature and the judiciary. Surprisingly, there has been little conflict around the abstract normative ideal of sovereignty as government by consent of the governed (“popular sovereignty”). Brexit was a source of conflict as much because of the content of the decision to leave the EU as it was due to disagreement about who rules. This discussion of the British case is a useful starting point for the comparative study of sovereignty conflicts in Europe, where institutional conflicts may be accompanied by substantive disagreements about “who rules?” This paper recommends that we carefully delineate conflicts of sovereignty from other sorts of conflicts connected to specific policy choices or outcomes.
Popular sovereignty after Brexit
The Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty – or the failure to properly institutionalise popular sovereignty in a legal-constitutional form – represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilising and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.
Reset: The Brexit Imbroglio between Law and Pluralism
At the end of a divisive, toxic and often deceptive campaign, UK voters chose to leave the European Union on June 23rd. The economic fallout from Brexit is already apparent, with the pound going through the floor and credit ratings agencies engaging in rather gloomy forecasts for the British economy. What happens next politically is everybody's guess. The resignation of Prime Minister David Cameron in the immediate aftermath of last Thursday's vote has added an extra layer of complexity to this debate, and there are now clear signs that the fate of Jeremy Corbyn, the leader of the Labour Party, hangs in the balance too. Scottish Prime Minister Nicola Sturgeon has been adamant that the overwhelming remain vote cast by Scottish voters is highly likely to trigger a second referendum on independence. Similar challenges to the Union have come from Deputy First Minister of Northern Ireland Martin McGuinness, who has called for a referendum on the reunification of the north and south of Ireland following the Brexit vote. At least two questions should be given a great deal of thought in the short and medium term: What does the outcome of the referendum actually entail? And assuming Brexit takes effect further down the line, could Scotland be taken out of the equation, as the Scottish Prime Minister seems to suggest in her bid to protect Scottish interests within the EU? From a legal and policy-making perspective, matters are not as clear cut as one might think. Let us briefly take a closer look at each of those questions in turn. The Article 50 debate Article 50 of the Treaty on European Union sets out the framework for a member state to withdraw from the Union. There can hardly be any doubt that Article 50 does not allow the EU to force the 'outgoing' state to trigger the withdrawal process at any particular point in time. There is no legal obligation upon the UK to invoke Article 50 at the time of Brussels' choosing, though the UK does have an obligation to trigger this procedure when it confirms its decision to leave the EU 'in accordance with its own constitutional requirements'. This is entirely in line with general principles of international law. Whether or not delaying this process is desirable is a different matter. It very much depends on what one is seeking to achieve by doing so. If you are looking to restore some form of institutional stability and reassure the markets, then delaying tactics may not be appropriate. However, it is not inconceivable to assume that some politicians from across the political spectrum would rejoice at the prospect of buying more time to reflect upon the implications of the EU referendum. Is the result of the referendum legally binding as a matter of British law? Hardly. In fact, it would be extraordinary to argue that the Brexit vote can ipso facto disentangle the UK from the European Union in law. This is certainly the case in relation to Article 50 (which could, in principle, never be triggered), but it is equally true of UK law which is built around the notion of Parliamentary sovereignty. Parliament (the representatives of the people), not the electorate itself, is the only entity endowed with the legal authority to make that final decision. Contrary to the Leave campaigners' rhetoric over control and sovereignty, it was
Commentary: Breaking the Brexit Impasse: Achieving a Fair, Legitimate and Democratic Outcome
National Institute Economic Review, 2019
Unanimity on the question of UK exit from the EU is not within reach, but this does not mean that the House of Commons or the population at large can not find a way out of the current Brexit impasse that is fair and legitimate. We discuss different voting procedures which satisfy some important principles of democracy and which can select the option that can win a majority against all other alternatives in a head-to-head majority vote. We argue that strategic considerations play an important role and we propose a procedure that works well and can help break the impasse when voters act strategically. The procedure requires (1) that all options with some minimum support are on the agenda, (2) that voting takes place in multiple rounds and (3) that in each round the alternative with the least support is eliminated until in the last round only two alternatives are left and the majority winner is selected. We discuss how this procedure can be modified to take into account that some voter...
Limitations on Parliamentary Sovereignty in the UK: A Critical Analysis
University of Karachi , 2023
The article aims to discuss some British parliamentary issues that are directly link with the democratic values, power distribution, limitations, overlapping of national laws with the EU laws before Brexit, and restoration of state sovereignty in the post-Brexit UK. Parliamentary Sovereignty is a doctrine where the parliament wields absolute power and can therefore make and unmake laws. Many scholars argue that the doctrine is the central principle in the UK but by weighing its advantages and its disadvantages, one may assume that it can no longer be regarded as the central element of the constitution. The issue of common law radicalism can also be seen as a limitation to parliamentary sovereignty. The paper also discuss some legal issues of translating Parliamentary Acts by courts and judges. Simultaneously an act count valid on certain circumstances but not applicable when it conflicts with other status.