“God save the…Country”: The Courts and Brexit

I just felt the need to make a quick comment on the recent ruling by a Court holding that the Brexit vote was not valid without a vote by Parliament.  This was a very odd ruling for several reasons, the most interesting being that the British government is not at all structured like ours.  Despite the statement by the judge that the Brexit process violated clear constitutional principles.  Well, there is no written constitution for Great Britain (and never has been), so any attempt to enforce any “tradition” is at best arguable, since it is unenforceable by not actually establishing a mechanism for addressing issues such as this one.  I suppose the government could simply ignore the court’s ruling.  But even that has no actual validity in any written, enforceable constitution.  In short, Great Britain has operated for centuries based on a vague idea of constitutionalism, but which in reality is non-existent.  The only reason it works as it does now (no absolute monarchy) is itself due to tradition and non-action by monarchists.  It is a strange and fascinating institutional arrangement.

But Tom Rogan has added a couple of other points similar to mine:

The court’s rationale rests on flimsy legal argument. First, there is a clear constitutional tradition that referendums bind Parliament under English law. Tradition is relevant here because the U.K. has no written constitution. The strongest precedent for the present case is the 1975 referendum on continued membership of the European common market. Responding to that verdict, the longtime socialist member of Parliament Tony Benn remarked, ‘When the British people speak, everyone, including members of Parliament, should tremble before their decision and that’s certainly the spirit with which I accept the result of the referendum.’ Second, in ruling against the government, the court argued that the principle of parliamentary sovereignty means that no referendum – unless explicitly written to the effect – is anything other than advisory. Of course, this injects absurdity into the democratic system. Parliamentarians knew what they were voting for in authorizing the referendum, which they did, by a ratio of six to one. To say now that the spoken will of the people is not binding represents a self-evident and grievous stab at the aorta of any democratic authority: the people. Third, while European Union law is supreme over English law, EU law, as it relates to nations’ withdrawing, is clear. Article 50 of the Lisbon Treaty clarifies that ‘any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.’ The obvious logic that flows from this reading is that the British government – vested with popular authority from the referendum – may withdraw from the European Union. Attempting to rebut this principle, the High Court ruled that ‘the [government] has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend . . . and on whose continued existence the wider rights of British citizens#…#also depend.’” (National Review Online, November 4, 2016)

Now I am no fan of what the court called “prerogative” power, as that was used by the English monarch to commit a great deal of mischief in the 16th and 17th centuries.  But here the court is calling the people themselves by that name, and that doesn’t make sense, as they are arguably the “consenters” to and ultimate sovereign in that government by any normal constitutional standard.  It seems the court has contradicted itself.  We will see how the relatively new Supreme Court handles this case on appeal.

One thought on ““God save the…Country”: The Courts and Brexit”

  1. How has the UK made it this long without an issue like this coming up? And it does seem quite illogical to say that Parliament is not bound by the referendum they fully supported.

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