“The Principled Argument for Using the Royal Prerogative to Exit the European Union”, a talk given at NCH on 14th February 2017 by Stuart Goosey, Visiting Lecturer in Law

Those present were: Mr. Stuart Goosey, Mr. Robert Craig (Faculty of Law), Dr. George Zouros (Faculty of Economics), Dr. Catherine Brown (Faculty of English), Dr. Christoph Schuringa (Faculty of Philosophy), Mr. Fred Pelard (Visiting Fellow), Dr. Callum Barrell (Faculty of Politics & International Relations), Dr. Brian Ball (Faculty of Philosophy), Dr. Sebastian Ille (Faculty of Economics), Dr. Mike Peacey (Faculty of Economics), Mr. Tahmid Chowdhury and Dr. David Mitchell (Faculty of Philosophy), together with final-year Law students Jess Rowlands, Delia Appelt, George Lee and Jonnie Corrie.

Just three weeks after the Supreme Court gave its judgment on the case of Miller v Secretary of State for Exiting the European Union, Stuart’s talk reviewed some of the issues raised, and prompted a many-faceted discussion. He sided with the minority of the judges, offering what was in part a legal argument about the constitutional questions which the Court addressed and in part an argument concerning democratic principle. Thanks to this wide-ranging approach, and the clear stance which Stuart took, there followed a rich and intensely thought-provoking hour of conversation.

Article 50 of the Treaty of Lisbon provides that an EU member state may ‘decide to withdraw in accordance with its own constitutional requirements’. What are these requirements in the UK? The now familiar nub of this question is whether an Act of Parliament must precede a notification of intention to withdraw or whether instead the ‘royal prerogative’, that residual power of the executive to act in the name of the Crown which is still acknowledged in some areas of the country’s international relations, permits it to proceed without any such Act being passed.

The answer should depend, Stuart said, on whether the rights which British citizens would lose upon departure from the EU are rights which Parliament created, by the European Communities Act of 1972. If Parliament is the source of these rights, then the doctrine of parliamentary supremacy dictates that they cannot be extinguished by executive action without the authorisation of Parliament. Stuart argued that EU rights were in fact created in the international sphere by EU institutions. Parliament, in passing the 1972 Act, merely acted as a conduit, giving effect to these rights that were created independently of it. In Stuart’s view, Section 2(1) of the 1972 Act reflects this position by recognising the authority of the executive to alter and remove EU international-based rights. It follows, he said, that the use of the royal prerogative to exit the EU – and therefore to extinguish EU rights in the UK – is consistent with the intentions of Parliament and is an appropriate and legal use of the executive’s power to conduct international affairs.

Stuart now went on to broaden his argument: since the immediate controversy arose out of a referendum, the matter must be considered in the light also of democratic principle. There are some kinds of political decision, he said, though not many, which it is appropriate to put to a referendum. Among these are decisions about which institutions we are to be governed by, and about the boundaries of the state. The question of EU membership is of this kind. The result of a referendum on such a question is more appropriately secured by the executive, he argued, than through parliamentary procedures that can work to undermine the result and frustrate popular sovereignty.

To this point of principle he added some further considerations relating to the 23rd June referendum in particular. First, MPs, being on average comparatively wealthy and highly educated, are particularly unrepresentative of certain sorts of voter who predominantly favoured leaving. Secondly, since the latter include many people with vulnerable livelihoods who already feel their concerns are little heeded in Westminster, to override the referendum result would be likely to give rise to a ‘stab-in-the-back myth’ which could only exacerbate recent decreases in people’s trust in institutions. And lastly, insisting on a parliamentary vote meant needlessly putting many MPs in the difficult position of being pressured to vote against not just their consciences but the views of most of their own constituents.

In the event, the main themes of the discussion that followed were the currents of change in our politics, the relations between parliamentary and popular sovereignty, and rival conceptions of democracy in general. But some further points were made about the legal question of what is to be done in regard to the 1972 Act. Whereas Stuart was disposed to read that Act as containing parliamentary consent for the executive to extinguish all EU rights arising from treaties, Robert, who attended and reported on the Supreme Court hearing, argued that this was at odds with the best interpretation of a crucial phrase in section 1 of the Act: it’s incorrect, he claimed, to take what is said there regarding provisions ‘from time to time created or arising by or under the treaties’ as also applying to the treaties themselves. There are in fact statutory grounds, in Robert’s view, for excluding the use of the royal prerogative in this case. Alternatively, if that was wrong, he invited us to see the executive’s use of the prerogative as being, in relation to the 1972 Act and the 2002 European Parliamentary Elections Act, just the kind of step – of ‘Suspending of Lawes or the Execution of Lawes’ – which Article 1 of the 1689 Bill of Rights denounces as illegal.

General views about the royal prerogative can also helpfully be seen in historic terms, Robert suggested: one’s attitude will turn on whether one has a ‘Cavalier’ or a ‘Roundhead’ understanding of representative democracy. Is it sounder to think of the citizen as voting for a manifesto, which a prime minister then becomes responsible for implementing, or as voting to select a local MP, who will participate in governing in one’s interests? Robert took Stuart to be rejecting the latter, Roundhead position, but Stuart denied this; he reckoned the line he had taken was consistent with either. George Lee proposed a more reductive view: people’s views on the constitutional issue have turned out to be highly dependent on their answer to the referendum question; before the result was known, he said, those more likely to insist that the vote need not be taken as final were the Leavers.

Should we expect that referendums are going to play an increasing role in our governance? Robert thought not, except in the fairly short term, whereas Fred suggested that, for reasons of technology and culture, this will be a persisting trend; he predicted that before long we will see referendums on Trident and on the civics of transhumanism. But he hoped, in line with the Swiss model, that as they become a more familiar part of public life, referendum results will also be regarded not as ending discussion but as beginning a new phase of it. Fred spoke here of the need to foster consistency over time, and Callum, in the same spirit if different words, argued that if direct democracy is on the increase, it is crucial to recognise the ‘Mytilenean’ right to change one’s mind. He urged that in the present case we need full deliberation in parliament and a second referendum – which, Catherine noted, could of course turn out to reinforce the democratic mandate for leaving. Mike added that we should bear in mind the possibility that in years to come voters will feel they were let down by the politicians’ not having paused at this present point for a fuller deliberation; to which Stuart replied that proceeding under the royal prerogative is entirely compatible with intense concurrent scrutiny of the process in parliamentary committees.

Was the question of EU membership really a suitable question for a referendum? Sebastian argued that since the issue is immensely complex and the average voter very imperfectly informed, a referendum vote was less likely to reflect the interests, or ultimately the will, of voters than a parliamentary decision would be. He had a second objection too, which Brian also pressed: referendums are open to coordination failures in the securing of public goods, of a kind which parliamentary votes guided by the interests of constituencies can avoid. Stuart responded to both points that to speak thus in terms of interests is too narrow: many people cast their vote on the basis of feelings about identity, and these must equally be respected. Tahmid noted it as one point against referendums generally that they impose a winner-takes-all structure on debates.

Several colleagues remarked that the EU referendum had been particularly ill conducted, and not just in that so much of what was said during the campaign was unreliable. Robert had noted that the original Act, unlike that of the Alternative Vote referendum in 2011, was non-committal as to the legal consequences of different possible results. The failure to set out legal consequences means it has no legal effect. Brian drew attention to the fact that neither non-resident Britons nor UK-resident EU citizens – two groups deeply affected by the vote – were able to participate. Equally, said Mike, the fact that UK-resident Commonwealth citizens were able to vote was improper, given that most people in this non-EU category might reasonably be supposed to have favoured Brexit. In another vein, Christoph discerned in much of the subsequent commentary a tendency to stereotype the voters, and the ‘leave’ voters especially, in ways that could be really harmful to the further debate.

Our discussions continued after the formal end of the meeting. An hour later, legal points were still being disputed in the Archive by Jess and Robert, together with Tahmid, who had been unable to attend the beginning of our session because of related business at the House of Lords. Tahmid later received a written response from Stuart to some questions he had put to him, one of them as regards the possibility of a referendum in two years’ time on the terms of exit which (with luck) the negotiations will have delivered. Stuart was against any such referendum, on the grounds that either it would be revisiting, improperly, the existential question already voted on in 2016 or it would presuppose some possibility of renegotiation which would be quite unacceptable to the 27, rather in the manner of the ineffective bailout referendum in Greece in 2015. Tahmid envisaged other alternatives besides these, including that of a referendum with three options, one of which would be to remain in the EU after all. The questions continue to come thick and fast – about amendments to the current bill, about whether Article 50 notification is revocable, and so on. But Stuart’s presentation at least allowed a collective taking of stock, and some very helpful illumination of the new terrain.

Written by Dr David Mitchell, Senior Lecturer in Philosophy and Convenor of the Ottoline Club, NCH’s faculty club for interdisciplinary discussion