EDITORIAL - The separation of powers

For those among us who consider, rather quaintly, that the voice of the people as expressed in referenda and other statements of public opinion is sacrosanct in a democracy; a view that appears to have been shared in some respects by the current UK government, the recent decision of an English court, comprising a distinguished Bench consisting of the Lord Chief Justice of England and Wales, the Master of the Rolls and an Appeal Court Justice, would seem to suggest that this is a misperception and that in the Constitution of the UK, at least, Parliament is supreme. 

 

In fact, however, the decision in R v The Secretary of State for Exiting the European Union does not go quite that far. It is a given that on June 23 of this year, in response to a referendum as to whether the United Kingdom should remain a member of or leave the European Union (EU), the electorate answered that The United Kingdom should leave the EU.

 

Armed with this decision, the Crown, as reflected in the government of the day, and that in the sense of the Cabinet,  considered itself competent to use its incidental prerogative powers of treaty making and, impliedly, “treaty-unmaking”, to leave the EU in accordance with the popular answer to the referendum.

 

Whether it was competent to do so raised in the minds of their Lordships a justiciable or triable issue of law rather than, as they  emphasised, the political issues of the merits or demerits of a withdrawal buy the UK, the content of government policy in this regard, or what use might be made of the Crown’s prerogative powers. These issues, for them, were fit to be resolved through the political process.  

 

In spite of the electoral sanction, however, there was one catch to the condign exercise of its prerogative powers by the Crown. The 1973 accession to the EU, then the European Communities, had been effected by the ratification of the relevant Treaty by the government, the enactment by the UK parliament of the European Communities Act 1972 to give effect to Community law in the national legal systems of the UK and then ratification by the UK and other Member States of the Treaties. Parliament through this legislation gave effect in each jurisdiction of the UK to the binding rights and obligations under the Treaties. In consequence, according to the Court, any purported withdrawal from the EU would have the effect of nullifying some of those rights under EU law that had been incorporated into domestic law. 

 

However, the repeal of any legislative provision, as would be the substantive consequence in such an event, is exclusively a matter for Parliament in the UK and, as their Lordships stated, the most fundamental rule of the UK Constitution is that Parliament is sovereign and can make and unmake any law it chooses. The Crown, subordinate in this regard, cannot by the exercise of its prerogative powers override legislation enacted by parliament. 

 

The prerogative of the government to accede to treaties is of no effect in English domestic law unless and until Parliament legislates to give substance to the rights and obligations created by the specific treaty. Equally, the unmaking of a treaty can have no effect on existing rights and duties created by Parliamentary enactment. 

 

This thesis might offer some hint as to the nature of any future appeal by the Crown. The Court was persuaded that the withdrawal by the Crown would unconstitutionally erode rights previously enacted by Parliament. Might it not be posited too that the Crown’s prerogative power is not to be constrained by Parliament, which operates in a distinct sphere, so that its exercise by the Crown should have no effect whatsoever on individual rights and duties already accrued under existing legislation?

 

An intriguing constitutional issue.