An Old Bill May Upset May

There is currently a legal challenge underway to to the UK governments’s intended use of the royal prerogative to initiate Brexit.

While it is true that signing up to, or withdrawing from, international treaties is normally done by use of the royal prerogative, there is a complication when it comes to initiating Brexit.

The Bill of Rights 1689 was essentially a bargain between the English Parliament, and William of Orange and his wife Mary, who became joint monarchs after Mary’s father, James II of England, was deposed in the so-called Glorious Revolution. While James was deposed largely because he was a Catholic with a son and heir who would be brought up as a Catholic, the people who drew up the Bill of Rights will have remembered the civil wars caused by Charles I’s desire to rule as an absolute monarch, unencumbered by Parliament. It includes the following provisions.

Dispensing Power.

That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.

Late dispensing Power.

That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.

The intent of these two sentences is clear; just as only Parliament could make laws, only Parliament was to unmake laws. If laws could be overturned by a king using the royal prerogative, there would be the possibility of a new struggle for power between King and Parliament. The risk that a monarch will try to rule as some kind of hereditary dictator has faded away long ago, and the convention is now that the royal prerogative is always used as advised by government ministers. However, the Bill of Rights is still on the statute books and generally accepted as forming a key part of the UK’s uncodified constitution; it is crucial to the UK’s status as a constitutional monarchy in which the monarch’s powers are limited by law.

The European Communities Act 1972 (with later amendements) incorporates EU membership into UK law, and allows EU laws and regulations to form part of UK domestic law without the need for further legislation by the UK Parliament. Once Article 50 of the Treaty of Lisbon is formally invoked, Brexit appears to be inevitable, as the Treaty of Lisbon makes no provision for a member state which has given formal notice of its intent to leave the EU to retract that notice. If the ECA is not repealed by Parliament before Brexit actually happens, it will inevitably  be rendered null and void by Brexit, at least in part. If Brexit has been initiated using the royal prerogative, this would appear to be contrary to the Bill of Rights.

May has announced that the government will put forward a ‘Great Repeal Bill’, which will repeal the ECA when Brexit actually happens. If such a bill were to be passed before Article 50 were invoked, there would then be no objection to the use of the royal prerogative. In any case, such a bill could easily incorporate a clause giving the PM the authority to invoke Article 50 without having to rely on the royal prerogative. But if the bill is only put before Parliament once Brexit is inevitable, as it seems will be the case, then Parliament will have little choice but to pass it if a messy legal situation is to be avoided.

If the royal prerogative cannot be used to repeal legislation, how can it be right for the royal prerogative to be used to put Parliament in a position where it is virtually compelled to repeal that legislation?

The may be a further complication. In the ‘Metric Martyrs’ case (Thoburn v Sunderland City Council 2002), Lord Justice Laws held that the European Communities Act is a constitutional statute which cannot be impliedly repealed by subsequent statutes. In other words, it can only be repealed by a later Act of Parliament if that Act clearly and explicitly states Parliament’s intention to repeal the ECA.

If the royal prerogative cannot be used to repeal ordinary legislation, how can it be right for it to be used to override a constitutional statute?

If Parliament had so wished, a clause could have been included in the European Union Referendum Act 2015 granting the Prime Minister the authority to invoke Article 50 in the event of a Leave vote. Why did Cameron not include such a clause – over-confidence that Remain would win or just plain incompetence?

The UK’s ramshackle, uncodified constitution gives too much power to the Prime Minister, and May – not even elected to that position by her own party’s members – appears determined to impose a massive change, namely withdrawal from the single market, which was not specified in the referendum, without allowing Parliament any say in the matter. This does not seem at all democratic to me.


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