Event: Parliament and Brexit: Constitutional Conundrums and Parliamentary Practicalities

Parliament and Brexit: Constitutional Conundrums and Parliamentary Practicalities

United Kingdom Constitutional Law Association and Study of Parliament Group Seminar

Tuesday 25 October 2016 6pm

House of Lords – Committee Room G

Speakers: Jeff King (Professor of Public Law, University College London), Paul Hardy (Legal Adviser to House of Lords European Union Committee) and Dr Hannah White (Programme Director, Institute for Government)

Chair: Alexander Horne (Deputy Legal Advisor to the Joint Committee on Human Rights)

On Tuesday 25 October at 6pm the Study of Parliament Group and the United Kingdom Constitutional Law Association are hosting a seminar titled ‘Parliament and Brexit: Constitutional Conundrums and Parliamentary Practicalities’ in House of Lords Committee Room G. The aim of the seminar is to debate both the constitutional questions arising from the process of leaving the European Union and Parliament’s approach to scrutinising the process.

The invitation is open to paid up members of the UKCLA. If you would like to attend please email j.a.simson-caird@sussex.ac.uk.

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André Clodong on September 23, 2016 at 3:27 pm

I apologise for not being a lawyer, but I can read. My view is that the use of a referendum to decide on a fondamental isssue (remain or leave) for an extraordinary mistake for a seasoned politician to make. In essence, one individual took a risk which would impact millions. This is why the House of Commons must decide for the people they represent. Common sense must rule, not hubris.
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Jerzy Kolodziej on September 29, 2016 at 7:46 pm

To add yet another perspective to the Brexit conundrum and also taking into account the sensitivity of the Turks and Caicos being excluded once again from its democratic rights. Here is an article I wrote that will be published in the local press shortly:

I am sure that almost every person in the Turks and Caicos Islands, and beyond, is aware of the recent referendum that asked if the UK should leave the EU. The electorate expressed support for leaving the EU, with 52% in favour on a 72% turnout.

The referendum held on June 23 under the provisions of the European Union Referendum Act 2015 did not make any legally binding conditions on the UK Government or Parliament in respect of the result. It is universally accepted that that there are no binding legal consequences as a result of the vote to leave. However, the UK Government has taken the position that it is “politically” bound to leave the EU wholly on the grounds of the referendum result.

The UK government has also taken the position that the “decision” to leave the EU is an executive act. Therefore, Parliament will not be required to debate or vote on leaving. It will be exclusively an executive act of government using its prerogative powers.

These circumstances have created what can only be described as a major constitutional crisis in the UK. Proceedings have been taken in the UK courts to establish whether the government have the power to leave the EU without first obtaining the consent of Parliament.

The logic of the argument is quite simple. While the administrative act of joining the EU, or leaving it, is ultimately a prerogative act of government, the decision must be ultimately controlled by Parliament. When the UK joined the European Community in 1972 it was done initially through a prerogative act of government; as all international treaties and conventions are done. However, the act of joining the EC would have had no practical effect unless the decision was effectively ratified by Parliament through the European Communities Act 1972. The decision to leave cannot now be an executive act alone, but the government must seek Parliamentary approval prior to exercising the prerogative. Any such an act would effectively neuter the European Communities Act 1972. It is constitutionally impossible for the executive branch of government to circumvent or abrogate the sovereign power of Parliament in this way by repealing an act of Parliament through the executive.

As Lord Browne-Wilkinson observed in R v SSHD ex parte Fire Brigades Union [1995] 2 AC 513 at p. 522:

“it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute … The constitutional history of this country is the history of the powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. The prerogative powers of the Crown remain in existence to the extent that parliament has not expressly or by implication extinguished them”.

While the above set of circumstances may be of no more than academic interest to the people of the Turks and Caicos Islands, it is fair to say that there are some very wide ranging practical implications for the islands if the UK were to leave the EU.

We are recipients of significant benefits from the EU in terms of grants, technical support and above all laws. In addition, we are subject to political support from the EU that assists us in our international relations and trade. It may well be that the people of the TCI would prefer to remain part of the EU because it is a great benefit to us.

Under these circumstances, it is surprising that the TCI and all the other Overseas Territories and Crown Dependencies, with the exception of Gibraltar, were not allowed to vote in the referendum. Do we not have the right to have our say? It could be said the referendum result, that the UK government seems so ardently bound, is flawed. The executive decision for leaving the EU must consider not only the Crown in the right of the UK but also the Crown in the right of its territories. A referendum without the consent of the OT’s and CD’s is not truly representative of all the people who are legitimately affected and for which the Crown is responsible. It is an abrogation of our political rights. Even more importantly, the result of the referendum is undermined because it is not truly representative.

Even accepting that there are not enough people in the OT’s and CD’s to have overturned the result. It could have made the vote very much closer. Gibraltar voted almost unanimously to stay in the EU and it is likely that would have been similar across the other OT’s and CD’s. It is also impossible to judge if the influence of the OT’s during the campaign leading up to the referendum might have influenced the vote.

Under the circumstances it is doubtful whether the degree of weight being given to the referendum result by the UK government is justified at all. It is also of considerable doubt that the prerogative power exists for the UK government to effectively repeal a law made by Parliament. I invite any party that may be interested in joining the legal challenge against the UK government to contact me via email jerzy.kolodziej@lawagainstinjustice.org. I would welcome the comments of our political parties and the wider Overseas Territories.
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I·CONnect – What’s New in Public Law on October 3, 2016 at 8:06 pm

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