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The case of Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) (“Santos“) was heard in the High Court this week by the Lord Chief Justice, the Master of the Rolls and Sales LJ. Santos has been called “one of the most important constitutional law cases ever decided”. The High Court – and presumably the Supreme Court by the end of the year – has been asked whether the Government’s prerogative powers will permit it to make the decision to leave the European Union and then notify this decision to the European Commission (the two stages are frequently conflated into a single “invocation” process). The case has been presented in some quarters as an attempt to prevent Brexit or overturn the referendum, but is in fact an attempt to increase Parliament’s involvement in the process of Brexit. The fact that a court order is being sought to order the government to involve a supposedly sovereign Parliament in such a crucial matter, in the country that “invented parliamentary democracy”, demonstrates the extent to which Parliament’s power has been circumscribed and undermined in recent years.
In purely legal terms, the decision is about the extent of a prerogative power of government, and if the court decides in favour of the Secretary of State, the result will be that the executive’s powers to repudiate a treaty (an action which only has immediate legal effect on the international/EU law plane) are confirmed. However, this litigation is taking place against a backdrop of a clash between the Government, citing a popular mandate deriving from the referendum vote in support of its agenda, and Parliament, whose claim to control and supervise the debate derives from the United Kingdom’s long history of parliamentary democracy. The outcome of the litigation could precipitate a disturbance in the precarious equilibrium between the legislature and the executive, transferring a decisive amount of power to the executive in practice.
The Gradual Erosion of Parliamentary Sovereignty
The United Kingdom, when governed by a government elected with a large majority, has been called an “elective dictatorship”, and this and other problems caused by the poor separation of powers and the weaknesses of parliamentary scrutiny of the executive are beyond the scope of this article. Lord Judge highlighted the ever-growing governmental encroachment on the legislative sphere of Parliament in a lecture he gave in April 2016 entitled “Ceding Power to the Executive: the Resurrection of Henry VIII?” Beginning with the revolution in 1688 which is now seen to have conferred supreme legislative authority on Parliament, he expressed his alarm at a number of ways in which Parliament is delegating its authority to the executive and, in so doing, undermining its own supremacy. Among these “self-inflicted blow[s], each one boosting the power of the executive” are the vast output of secondary law produced by the executive, the minimal debate and scrutiny undergone by statutory instruments and the increasing prevalence and potentially destructive influence of Henry VIII clauses in secondary legislation.
However, as Lord Judge acknowledged, delegated law-making is essential in the modern constitution simply because the range of areas in which detailed rulemaking is needed is so vast, and the necessary regulation so technical and specialised, that it would be simply impossible for Parliament to do it all. Neither can it rigorously supervise the work of the executive – Parliament has rejected only seventeen of the 170,000 statutory instruments laid before it in the past sixty-five years, and substantive debate of individual instruments is rare. Not only has it delegated responsibility for regulation downwards to the government, but it has also done so upwards to the European Union, to the extent that up to sixty per cent of UK law may derive from EU law in some way. Daniel Greenberg, Parliamentary Counsel at Berwin Leighton Paisner LLP, predicted before the referendum that the work of identifying, reviewing and reworking the existing body of EU-derived law would be “a civil service legal exercise on a scale that has not been encountered at any other time in our recent legal history.” As well as this, legislative and technical expertise in the relevant areas has been delegated to Brussels for many years, leaving domestic civil servants ill-equipped to make the large number of decisions that will need to be made in the coming years. It is hard to disagree with David Allen Green’s analysis: “under the cloak of the referendum result there will be a power grab by Whitehall from Westminster. Those rejoicing at “taking back control” should be careful what they wish for. The executive is, as usual, wanting to take control away from Parliament.”
“An Event Without Precedent” – Use of the Prerogative in the EU Context
Presuming that a notification under Article 50 (the definitive interpretation of which is a matter for the CJEU) is not reversible and that there will not be a majority consensus decision among the remaining 27 EU states to extend negotiations, once the notification is given under Article 50(2), the United Kingdom will leave the European Union two years later, whether or not arrangements have been made for the period after that in accordance with Article 50(3). Given that the two year time period is much shorter than that usually needed to achieve consensus on trade deals, if the UK government does manage to secure a deal and puts it to Parliament for a vote, there will be extreme pressure on Parliament to vote in favour of the deal to prevent the UK falling off the metaphorical cliff of Article 50(3). If the Government is allowed to make the decision and dictate the timing of the notification under Article 50, and Parliament is not given any decisive say in the negotiating plans before this is done or during the negotiations, the Government will essentially have a gun to Parliament’s head by the time there is a vote. While any vote and legislation (i.e. the putative “Great Repeal Bill”) will still be supreme over other forms of UK law, it is hard to describe Parliament as “sovereign” or “supreme” in any real sense in this scenario. Dicey’s view of a Parliament that can “make or unmake any law it wishes” does not map well onto a Parliament which can be put into a position in which it has the choice of passing law immediately or letting the country fall into crisis.
Constitutional theorists have analysed the effect of the European Communities Act 1972 on parliamentary sovereignty in a number of ways, following the decision in Factortame  UKHL 44 to disapply an Act of Parliament in favour of conflicting EU law. Paul Craig ((1991) 11 Y.B.E.L 221) and Sir John Laws (1995 P.L. 72) are among those scholars who took the view (endorsed on Parliament’s website) that Parliament could regain its previous sovereignty simply by repealing the European Communities Act 1972. Before the referendum, however, a substantial majority of MPs would have chosen to remain in the EU, resulting in a curious situation in which the executive, on the basis of the expressed will of the majority of the voting public, is attempting to pursue a strategy which simply would never otherwise have been adopted by the representatives of that same voting public.
While Vernon Bogdanor presents this state of affairs as a new “popular sovereignty” brought about by the referendum, through which Parliament will “now be constrained, not by Brussels, but by the British people”, David Allen Green has since asserted the view that it is not the people, but the executive, who are holding Parliament to ransom through the means of the referendum. “In substance”, he writes, “[referenda] provide the executive with the means to circumvent and frustrate those other organs of the state that would otherwise provide checks and balances.” If Parliament does repeal the 1972 Act, “sustain[ing] a policy to which most MPs are opposed, an event without precedent in its long history” as Vernon Bogdanor has put it, it will do so essentially as a hostage to the executive under the tight time limits prescribed by Article 50. It seems bizarre to speak of Parliament regaining its omnipotence or even making a decision to withdraw which is “sanctioned by the referendum that it has set in train” as the court put it in R (Shindler) v Chancellor of the Duchy of Lancaster  EWCA Civ 469 at , under such circumstances.
Sir William Wade argued at the time of the Factortame decision that Parliament had at the time of the European Communities Act 1972 ceded part of its “omnipotence” in a way that it had not done, for example, when conferring independence on the former colonies of the British Empire (it merely gave up territory in those cases). Wade saw this as a “revolution” which took place in the courts, conceptualising Parliament’s sovereignty as a “political fact” which Parliament could not alter through primary legislation, but which the courts could by changing the rule of recognition. The current situation goes beyond the courts, but it does not seem like hyperbole to describe it as a “revolution.” The process which the court described in Shindler, in which Parliament makes a decision which is then approved through a referendum, accords with a formal view of parliamentary sovereignty but does not resemble the post-referendum state of affairs at all. It seems more as if the Government is taking back those powers for itself which Parliament initially gave away to Brussels, in a process initiated by the referendum and controlled almost entirely by the executive. Parliament’s role may be reduced to approving or rejecting the final deal, with the Government having been able to use its prerogative powers in relation to Article 50 to hold it to ransom over terms it has negotiated. Even in an “elective dictatorship”, such circumstances are exceptional and worrying to those who place a value on representative democracy.
The UK constitution is built on the firm foundation of a sovereign Parliament; formally and legally that is not in dispute. In Jackson v Attorney General  1 A.C. 262, Lord Steyn observed obiter (at ) that “the classic account given by Dicey of the doctrine of the sovereignty of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution.” Lord Hope went even further (at ), opining that “Parliamentary sovereignty is no longer, if it ever was, absolute […] step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.” Whatever the decision in Santos, the referendum might yet have disastrous implications for Parliamentary sovereignty and for representative democracy in the UK, which all political and legal actors should be aware of. This constitutional threat must be considered alongside the other strong policy reasons for Parliament to be given a central role following the referendum result, whatever the apparent inclinations of the Government. The erosion of Parliamentary sovereignty must be resisted, because its deliberative and representative functions and ability to hold the executive to account are defining features of the United Kingdom’s enduring constitution.
Elizabeth Campion graduated from Cambridge University with a degree in law in 2014 and is currently working as a paralegal in intellectual property law at Hogan Lovells International LLP. This piece is not written on Hogan Lovells’ behalf or associated with them in any way.
(Suggested citation: E. Campion, ‘Pay No Attention to the Man Behind the Curtain: Parliamentary and Governmental Power in the Wake of the EU Referendum’, U.K. Const. L. Blog (24th Oct 2016) (available at https://ukconstitutionallaw.org/))