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Expert Comment: Brexit and sovereignty

Euro square Thursday 3 November 2016

The High Court has ruled that the government cannot leave the European Union without first putting the matter before Parliament. As things stand, the House of Commons must be involved in the decision to trigger Article 50 and thus start the formal process of withdrawal.

The decision reveals something deeply ironic. Essentially, the High Court has ruled in favour of parliamentary sovereignty – the principle that the supreme decision-making body in the UK is Parliament. Of course, one of the main planks of the Leave campaign was that they wanted to “restore” parliamentary sovereignty, arguing that it had been watered down by EU decisions.

This shows what a tricky concept sovereignty can be. First of all, today’s (November 3rd) judgement gives parliamentary sovereignty (a vote in the House of Commons) precedence over popular sovereignty (the vote in the Brexit referendum). This is a valid interpretation of British constitutional practice, but the weakness is that there is no proper UK constitution which clearly sets out the balance of power.

Secondly, sovereignty is both a legal principle and a political reality, and these two things do not always match up. To give a couple of examples: in principle, once Britain leaves the EU, it will no longer be bound by the Common Fisheries Policy and can make its own policies … but that legal right is not going to increase the number of fish in the North Sea. Similarly, it would be free to set its own environmental regulations and standards … but on their own, this will not offset climate change and rising sea levels. The political reality in these areas is that integrated multinational policy solutions are essential.

The government has already said that it will appeal the High Court decision, arguing that it can use so-called prerogative powers to proceed with Brexit without further reference to Parliament. This is likely to end up in the Supreme Court, so this promises to keep the controversy bubbling for quite a long time to come. Increasingly, the most relevant question seems to be: “what does ‘Brexit means Brexit’ actually mean?”

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