THE FIRST point Theresa May made in her opening remarks as Prime Minister after seeing the Queen was that she is the leader of the Conservative and Unionist Party and as if to drive the point home she made it clear that Unionist referred to the union with Scotland as well as Northern Ireland. Here’s why.
Existential questions about the unity of the United Kingdom followed Scotland’s, and to a lesser extent Northern Ireland’s, vote to remain and England’s vote to leave the EU in the referendum of June 2016.
Scotland and England became the United Kingdom in stages. Elizabeth I had no heirs and consequently her cousin James VI of Scotland became James I of England after she died in 1603. The two kingdoms united under one King by royal succession but became one kingdom in 1707 by political design following the Act of Union of 1706. By article 1 the two kingdoms were united into one and by article 3 the kingdom was to be represented in one Parliament at Westminster.
After the referendum the leader of the Scottish Nationalists at Westminster and the First Minister both said repeatedly that Scotland would refuse to leave the EU and would be prepared hold a second referendum to leave the United Kingdom instead.
The constitutional question that flows from this firm determination by Scotland to remain in the EU is whether it would be constitutionally legitimate for the prime minister to activate the procedure required under article 50 of the Lisbon Treaty to leave the EU without a firm undertaking from the First Minister of Scotland that this would not cause a second Scottish referendum to leave the United Kingdom?
The question is important because under the British Constitution a decision to trigger article 50 to leave the EU would have to be made in the exercise of the Crown’s prerogative under which the prime minister has a duty to render to the Sovereign the unity of the kingdom.
Walter Bagehot in his book on the English Constitution said that the monarch still has ‘the right to be consulted, the right to encourage, the right to warn,’ and ex hypothesi the inherent right to preserve the unity of the kingdom.
Only Her Majesty and the prime minister know what passed between them when the latter was asked to form a government but we can make a reasonable inference from the priority Theresa May gave to her Unionist sentiments on taking office that she was probably encouraged – ever so gently – by HM to preserve the United Kingdom united rather than rush to leave the EU and risk losing Scotland and Northern Ireland.
It must never be forgotten that the Crown has a duty to keep the kingdom united and it would be perverse and counter-intuitive if the prime minister has the constitutional authority in the exercise of the Crown’s prerogative to invoke article 50 of the Lisbon Treaty if this may cause the breakup of the United Kingdom – leaving aside whether an Act of Parliament or other parliamentary approval would also be required.
In my humble opinion, absent a mandate after a general election, the prime minister cannot exercise the royal prerogative knowing it may break up the kingdom brought together by the Act of Union 1706.
The Lisbon Treaty provides that the formal notice to leave the EU has to be in accordance with the constitutional arrangements of the departing state.
The UK’s constitutional arrangements however are virgin territory, as Britain does not have a written constitution. Under a constitutional monarchy however, a general election not a referendum is the only way to decide if the people would prefer to keep the kingdom united or leave the European Union; an existential question they were not called upon to answer in the referendum of 23 June 2016.
Alper Ali Riza is a queen’s counsel and part time judge in the UK