SOME 801 years ago the Magna Carta set in motion the gradual erosion of the English monarchy’s absolute powers, leading to today’s concept of parliamentary sovereignty.
This allows the Parliament in Westminster to make or repeal any law. The process has not been uneventful; there has been a civil war, Charles I was beheaded; James II was exiled after the “glorious revolution”, and, more recently fear of bolshevism quickened the pace of democratisation.
So what happens when the will of the people (as expressed in the referendum of the 23rd June 2016) is not much to the liking of the people’s representatives in London? This is a legal column and not the right forum for a political debate on how, if we are to believe the Bremainers, it has come to pass that a majority of the people’s representatives apparently hold different views to the majority of the people.
So, can the body of MPs ignore the referendum result and refuse to approve a notice of withdrawal from the EU under Article 50 of the Lisbon Treaty?
Can the 650 MPs and the 760 Lords (the second biggest Parliament in the world after the Chinese), ignore the 17,410,742 who voted for the UK to secede from the EU? Constitutionally, Parliament can do just that but the precedent thus set might make people question their faith in democracy, a thought process that normally ends up in tears.
Ironically it is a remnant of pre-Magna Carta absolutism that looks set to ensure that the popular vote is respected, and Westminster is side-stepped. It is called the Royal Prerogative whereby the Queen retains the power to make and repeal international treaties. By constitutional convention the monarch exercises the prerogative via the government of the day. The government in Whitehall is not, of course, the same as Parliament which sits at Westminster and the decision therefore rests with Theresa May’s cabinet. The Prime Minister has made it clear that an Article 50 notice will be given in early 2017.
Some lawyers point out that after the accession treaties, a European Communities Act of 1972 was enacted by Parliament. That Act, they argue, can only be repealed by Parliament and not the government. The long title of the ECA 1972 is: “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar”. My own view is that if the Treaties of Accession go, the 1972 Act becomes inoperative because it was passed “in connection” with the treaty of enlargement.
In other words, to stop Brexit, the UK parliament would have to pass a vote of no confidence in Mrs. May’s government and replace it with a pro-remain administration but that would put at risk many more political careers and seats and … pigs might fly.
Next week more on Brexit as disillusionment with the EU spreads.