The UK is in a constitutional mess. Blame needs to be placed where it belongs, firmly on the shoulders of David Cameron and his advisors since it was Cameron who decided that an “in/out” referendum on the complex issue of the UK’s relationship with the EU was the best chance for him to silence Eurosceptics in his party, pull the rug out from under the feet of UKIP and get him re-elected as PM in 2015 – well, the last bit worked out OK.
The 2015 Referendum Act was the enabling legislation for the plebiscite and passed the Commons with a ratio of 6:1 in favour – however, in keeping with UK governance, the bill clearly stated that the referendum was non-binding only. Had it been binding on parliament, it would not have gone forward with the 6:1 margin of support: it probably wouldn’t have gone forward at all.
The result of the referendum united the country in one way only: surprise. It is evident that no plans were in place for the eventuality; if only for the fact that the government was supporting the Remain position. It led to a change of PM and a period of chaotic uncertainty of which the nation is still closer to the beginning of than its end. The majority of members of parliament supported the “remain” position.
Mrs May decided that she could invoke article 50 of the Treaty of Lisbon, withdrawing the UK from membership of the EU, under an ancient law known as the Royal Prerogative. The Royal Prerogative is regularly used in matters of state such as accession to, or revocation of, a treaty and is (in a limited way) an accepted right for the executive to exercise some of its powers. However, it is the proper domain for parliament to determine any act or legislation which would impact on the rights of British citizens. A decision to leave the EU would clearly do just this. Mrs May’s intention triggered a civil case before the High Court which argued that the Royal Prerogative could not pertain to triggering Article 50. In a judgment announced on Thursday, the Court declared that the decision to invoke the act must rest with parliament.
This puts the government into a fresh mess. Nobody is saying that the (non-binding) outcome of the referendum will not be enacted, but Mrs May now needs to do enough to get a majority of parliament to agree that she can have the authority to invoke article 50. This requires that parliament be given information about and a voice in the post Brexit shape of the UK’s relationship with the EU. For instance, should the UK retain the customs union and membership of the single market; should it curtail the rights to freedom of movement of EU (and UK) citizens and a rather large Pandora’s Box of other choices.
The Government has already indicated that the matter will be sent to the UK Supreme Court, which would delay clarity until some time in January. Mrs May is believed to be telling her EU counterparts that the court’s decision will not alter her intention of invoking article 50 before the end of March 2017, but clearly this is more a case of wishful thinking than political reality. Rumours are circulating that a general election will be held in the spring, but government is being quick to quash them.