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As all that is solid melts to air and everything holy is profaned...

Tuesday, November 08, 2016

Brexit, Crown Prerogative and Popular Sovereignty

Revolutionary Spanish Tram System

It wasn’t meant to be like this.

What was meant to happen was that having seen off a threat by the Scots to break away from the United Kingdom in September 2014, David Cameron would repeat the trick in June 2016 be seeing off the Ukippers and their allies and keep the UK in the EU.

What Cameron failed to notice was that in Scotland ‘Project Fear’ as the No to Independence campaign was called, had complete control of the British and Scottish media. In the EU referendum, the Leave campaign had the support of an influential chunk of the print media which countered the Remainers scare stories with their own even scarier ones.

From triumph to disaster, Cameron’s political career ended in ruins in the early hours of 24 June. He resigned and was succeeded as prime minister by Theresa May

For the UK to leave the EU, the UK must trigger Article 50 of the Treaty on European Union. Here a major legal question arises.

Domestic laws, laws created by acts of Parliament, cannot be altered by what is called Royal or Crown prerogative. Only Parliament can do this.

International treaties are part of international law, not domestic law. In the UK, but not most other countries, Parliament has no formal role in treaty-making. Treaties are made by the government of the day using the power of  Crown prerogative. The same power can therefore be used to unmake international treaties.

However, where an international treaty made by the government of the day requires changes in domestic law, Parliament has to be involved in order to pass the necessary acts for the changes to be lawful. An example of this is the European Communities Act 1972. This was necessary to make European Community law part of the national legal systems (I.e. including Scots law) of the UK.

The recent High Court judgment therefore found that , because leaving the EU would change domestic law, the Crown prerogative cannot be used to trigger Article 50. Only an act of Parliament can do this.
Despite the outrage this judgment caused among Leave supporters, this example of a limitation of the Crown prerogative is part of a centuries long struggle.

It goes back to the time when kings and queens believed they had an absolute right to make and unmake laws. In practice this power was always limited by the rival military power of feudal barons and the ‘spiritual’ power of the Church when belief in God was universal.

As everyone knows, it took a bloody civil war and a revolution for an undemocratic parliament to place firm limits on the power of kings and queens. However, since it was useful for successive governments, the residual power of the Crown prerogative was only slowly whittled away.

If the Court of Appeal upholds the High Courts judgment, then Parliament will have won another victory over the Crown.

There is an interesting twist though.

In a live television discussion with Gina Miller, one of the people who raised the High Court challenge, Nigel Farage said

“This not about whether Parliament is sovereign, it’s about whether the British people are sovereign. That’s the real argument.”


In Scotland, the idea that the people not parliament/ the crown in parliament are sovereign is widely held. For example at the opening of the Scottish Parliament in May 2016 -

"Nicola Sturgeon has declared that the Scottish people are sovereign... the First Minister said: “The Scottish National Party pledges loyalty to the people of Scotland, in line with the Scottish constitutional tradition of the sovereignty of the people of Scotland.”


I don’t suppose Nigel Farage or even Nicola Sturgeon have thought through what it would mean if the people really were sovereign. It would require a democratic revolution to put in place mechanisms which would give the people the power to rule themselves.

Or should that be  ‘It will require a democratic revolution for us to take back the power to govern ourselves’?  The mechanism then being a federal network of autonomous anarcho-syndicalist communes/ co-operatives

No, I don’t think that is what Nigel Farage has in mind, nor Nicola Sturgeon. On the other hand, if, as I have argued previously, the impossibility of Brexit leads to ‘anarchy’ as in failure of government
In the UK, some form of anarchism may emerge as the rational solution to the collapse of authority.


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