Last Sunday the Brexit process entered a new phase when the EU...
Martyn Eden shares some points on what the sovereignty in the UK really means...
- The Queen in Parliament is the sovereign power in UK constitutional law. This was confirmed in the High Court this morning by the 3 most senior High Court Judges.
- The right for ordinary males did not exist until late in the 19thcentury . This was established by a series of Acts of Parliament in 1832, 1867 and 1884. Women were not given the right to vote until 1918 (women over 30) and 1928 (over 21). Men and women over 18 were given the right to vote in 1969.
- Now all adults except Lords and criminals serving 6 months or more have an equal right to vote but the different size constituencies mean that those votes are not of equal value – hence the boundary review currently happening.
- UK membership of the EU was established by a series of Acts of Parliament and they can only be amended or scrapped by new legislation passed by Parliament.
- It is worth noting that the Leave campaign said that one of the reasons for leaving the EU was to restore Parliamentary sovereignty, taking back powers from the EU and the European Court of Justice. It would be inconsistent if Parliamentary sovereignty was now disputed by the Brexiteers.
- The suggestion that the Government could act without Parliamentary authority, using the Royal Prerogative, is rooted not in an assumption of popular sovereignty but in the historical principle that it was the Monarch who declared war. That convention has changed in recent years. David Cameron asked Parliament for authority to send troops to Syria and the Commons voted against. He asked if RAF planes could join the coalition helping in Iraq and Syria in 2015 and the Commons voted for that. The Convention relating to Government use of the Royal Prerogative has evolved as a result of that and Theresa May’s legal advisers should have made her aware of that. Dominic Grieve, the former Attorney General and Sir Keir Starmer MP the former Director of Public Prosecutions both made this clear in a recent Commons debate.
- This will all be tested in December when the Supreme Court hears the Government’s appeal. It is most unlikely that they will overrule the High Court judgement
Constitutional Law matters but so does political reality. Even if/when the Courts confirm that Parliament and not the public are sovereign it does not necessarily follow that MPs and Peers will vote against the outcome of the referendum. MPs and Peers will take account of what that would do to the authority of Parliament in the eyes of the 52% who voted to Leave. More interesting is what they will do (1) to set key terms for the negotiations; and (2) what they will do if those terms are not met.