As Britain prepares to exit the EU and British citizens resident in Cyprus face the prospect of losing their rights as EU citizens, the British supreme court has just finished hearing an appeal that will decide whether it will be the government alone that triggers exit from the EU or whether it needs to be authorised by parliament.
But it may also make helpful observations about the nature of referendums. Are they mandatory or advisory? If advisory, whom do they advise? What are the legal consequences of referendum results?
The people were asked whether the UK should remain or leave the EU. The law does not spell out what was going to happen if people voted one way or the other but referendums do not happen in a political vacuum. They are held for a purpose and the purpose here was whether to remain or leave the EU.
Membership of the EU gives EU law precedence over UK domestic law as provided by the European Communities Act 1972, which has the status of a constitutional law. The most important aspect of this status is that it requires express language to be repealed.
The issue for the supreme court is whether the European Referendum Act 2015 that required the government to hold a referendum, necessarily also cleared the way for the government to start the procedure to leave under article 50 of the Lisbon Treaty using the foreign affairs prerogative if the referendum result was to leave. Bearing in mind that the UK would have remained if the majority voted to remain, one would have thought that the answer is obvious, but sometimes the law moves in mysterious ways.
Britain is a representative democracy in which parliament is sovereign. In plain English sovereignty means that parliament can legislate to do anything it pleases save that one parliament cannot bind its successors.
The fact that parliament is not likely to frustrate the result of the referendum is not relevant. The important point is that if it were left to parliament the referendum result could be reversed.
The vote to leave the EU has been said to be merely advisory but I think this is a category error. Holding a referendum is asking the people what the government should do about a particular issue that neither parliament nor the executive feel able to resolve. That to my mind is sufficient constitutional cover for the government to start the procedure for leaving in furtherance of the binary choice made by the majority without involving parliament.
But there is a problem. Triggering exit will affect rights acquired under domestic law because rights that derive from EU law have the status of superior law in the UK under the European Communities Act 1972. According to British constitutional law the UK government cannot use executive power to take away rights secured by English statute law such as the 1972 act.
Executive power – the crown prerogative – has always been used in foreign affairs in making treaties. In English law international treaties do not form part of UK domestic law unless parliament passes a law to give effect to them. It was argued, however, that different considerations apply when the government proposes to use the foreign affairs prerogative to trigger withdrawal from a treaty that confers rights enshrined in UK domestic law.
But I cannot see the supreme court deciding that the referendum result does not enable the government to start the procedure for leaving the EU. After all seventeen million people voted that the UK should leave the EU in answer to a question posed by the government pursuant to legislation passed by parliament.
The campaign to leave succeeded because people want the UK to regain control of migration, stop paying into the EU coffers and cease having to comply with further regulations and directives and rulings of the Court of Justice of the EU.
It is for the government to decide what is politically necessary to give effect to the referendum result. If it thinks that involving parliament risks frustrating the people’s vote to leave the EU, it has a duty to trigger exit by executive action alone.
This does not mean the government may not proceed at a leisurely pace in respect of rights that Britain may wish to retain or modify after consulting parliament – for example rights to do with gender equality, social provision, environmental protection, health and safety at work and so on.
In my experience the judiciary in England is very reluctant to get involved in matters involving political judgment. They have not previously considered a case where the battle lines involved the executive backed by the people against parliament, but there is no reason to suppose they will make a judgement based on their presumed political preferences in favour of the EU. If anything as Lord Atkin observed in a case during World War II ‘the judiciary are more executive minded than the executive.’
I suggest there is no discernible legal difficulty here. The government proposes to act as it always has done in international relations in furtherance of a clear referendum result that clearly mandated the government to leave the EU. It is precisely because parliament is sovereign that it should not be involved in starting the process since constitutionally it has the power to frustrate the referendum result.
Even though I fervently supported remain, the law is the law, and I am afraid that the argument that the government cannot use the crown’s prerogative power to give effect to the outcome of a referendum result is more the product of the fertile minds of lawyers than the law of the land.
Alper Ali Riza is a queen’s counsel and part time judge in the UK