The litigation in the British supreme court over invoking article 50 to trigger Brexit talks has raised profound issues and stirred deep emotions, as befits a case which touches on the fundamentals of its constitution and democracy. It is remarkable, however, to see the sheer ferocity, and perversity, with which the Brexit camp, politicians and media, all supposedly out to save British democracy and its people from “EU diktats”, have attacked those at home defending precisely such principles.
The case turns on the classic tension between the mutual prerogatives of parliament and executive – expressed in the UK as the “royal prerogative”; the right and scope of the state to rule unfettered by the constraints of parliamentary approval. No less, as one Irish academic lawyer puts it, than a “rerun of the English Civil War”.
The basic question for the court is "who decides?" Can the executive branch of the government trigger article 50 or must the triggering be authorised by parliament and, perhaps, the devolved administrations in Northern Ireland and Scotland? In the latter cases it is argued that triggering Brexit will start a process that will profoundly alter the scope of legally-devolved competencies, to the point that those administrations must be centrally involved and given a say.
That the Westminster government should defend its freedom is hardly surprising. What is bizarre is to see its stance so vehemently applauded by “democrats”, and particularly when their key moral rationale, “the will of the people expressed in referendum”, has no legal standing. The poll was legally only consultative. MPs now rightly want a say in how, not whether, Brexit is enacted.
The royal prerogative allows the government the right to conduct foreign policy and sign treaties without recourse to MPs’ views. Our Constitution grants a similar prerogative to the authorities though treaties must be laid before the Dáil once approved. The British case hinges, however, on the fact that the UK accession was then operationalised through an act of parliament, the 1972 European Communities Act. To undo that, another act of parliament is required, or so it is argued.
The tussle over, sovereignty between MPs and the executive will continue to be a moving battleground, with gains and setbacks on both sides. Recently, for example, the Commons appears to have won the right to be consulted over military action by the state following the 2013 failure to obtain a vote in favour of military action in Syria. In Ireland on the other hand, setting new limits to the speaking rights of TDs is now being debated in the courts in the Denis O’Brien case against the Committee on Procedures and Privileges over its failure to silence TDs.
In theses trials of strength, the cause of democracy, accountability, and of parliament deserves to be supported. We stand with Cromwell.