Alastair Meeks wonders whether the Royal Prerogative would really suffice
“Who? Whom?” Lenin asked. These are questions that confront the government and Parliament when determining who decides to pull the trigger to leave the EU: who is going to take control and who is going to be dictated to? We are set for a constitutional power struggle to be fought in the courtroom and the next chapter unfolds next month.
John Grisham would doubtless not start such a story with some Euro-English but truth this time is duller than fiction, so we must. Article 50 of the EU Treaty begins:
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2, A Member State which decides to withdraw shall notify the European Council of its intention…”
The rest of the article then deals with the mechanics of withdrawal. For today at least we can leave those be and concentrate on how the trigger is pulled. The trigger is a decision by the member state to withdraw “in accordance with its own constitutional requirements”, following which there is an obligation on the member state to notify the Council of that intention. So everything hinges on what the constitutional requirements are.
In many member states the constitutional requirements will be set down in a single written code. Britain, of course, has no single constitutional document – its constitution is a patchwork of case law, statute and Parliamentary procedures that were responses to specific problems of the day. So how does it work here?
The government professes to have no doubt. It apparently sees the power to enter into or withdraw from treaties as an executive power that forms part of the royal prerogative. As such, it is – in its view – open to the government to do the deed at any time.
For the little that it is worth, I am sceptical. In constitutional theory, “The prerogative is the name for the remaining portion of the Crown’s original authority, and is therefore . . . the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King [or Queen] him[her]self or by his [her] Ministers.”
The royal prerogative has been whittled away further and further in recent years. Treaties must be laid before Parliament for 21 days before being ratified. The power to dissolve Parliament has been lost. All recent mooted military adventures have been debated in Parliament in advance, and Parliament has been in practice given the right of veto, as the vote on Syria showed.
And membership of the EU is unlike any other treaty. The EU’s reach into everyday life in the UK is direct and very substantial indeed – Leavers and Remainers alike agree on that at least. From setting employment rights to environmental protections, agricultural policies to regulating competition, the EU has a direct and deep impact on the way in which Britain works (Leavers and Remainers will differ as to whether that impact is essentially benign). If the government is able to swing the wrecking ball through that without needing Parliamentary sanction, it suggests a lack of control of the executive unparalleled in the developed world.
What of the referendum? Well, not much. It was in legal terms an advisory referendum and the government – formally at least – is free to ignore it. Indeed, it is easy to construct an alternative history where the referendum went the other way but David Cameron was ousted in favour of a Brexiteering Prime Minister. Would Prime Minister Leadsom really have been legally entitled to disregard popular opinion and, without seeking the sanction of Parliament, take Britain out of the EU anyway? Logically the scope of the royal prerogative cannot be determined by the result of a non-binding referendum. Either Parliament has a say in this or it doesn’t.
So I regard it as quite likely that the courts will eventually decide that the royal prerogative in 2016 is not broad enough to allow the government to exit the EU without first getting Parliament’s approval. Either way, it will be a landmark judgement.
That would be awkward all round. The government would need to persuade a Parliament dominated by Remainers that the time was right. And the Parliamentary Remainers would need to decide whether to fold in the face of Leavers’ mandate and if so when. Rather than outright defiance, Remainer MPs and peers are likely to use delaying tactics if given the chance, arguing that the time is not yet ripe, that further avenues need to be explored, that particular interest groups still need to be consulted.
The Romans had a good word for such people: cunctators. If Parliament does indeed have the final say over the triggering of Article 50, I expect we will hear Leavers talking a lot more about cunctators in the coming months. Perhaps Leavers really have yet to take control.