Brexit was a political tsunami, which swept across the UK. Rejecting calls from all major political parties which wanted the UK to remain in the European Union (EU) people voted for a withdrawal last year. Prime Minister David Cameron, who took the referendum gamble in keeping with a pre-election promise and campaigned hard to keep the UK in the EU, had to resign. It was thought at that time that Brexit would trigger itself, unhindered though the referendum was non-binding. But, a recent UK Supreme Court ruling has come as the proverbial straw for the opponents of Brexit. It has prevented Prime Minister Theresa May from exercising her executive powers or ‘royal prerogative’ to invoke Article 50 of the EU’s Lisbon Treaty to make Brexit a reality.
The Supreme Court (SC) has held that any change in the law to give effect to the referendum has to be made in the only way permitted by an Act of Parliament in keeping with the British constitution. It is being speculated in political and media circles that the opponents of Brexit may want to use the SC ruling to promote their agenda. The SC has, however, held that the May administration is not bound to seek approval of the devolved assemblies in Scotland, Wales and Northern Ireland before triggering Brexit. The will of the people expressed at a referendum has apparently obviated the need to do so. This decision has, however, cut no ice with the proponents of devolution.
A model democracy finds itself in a dilemma! The SC ruling has caused people to be pitted against their representatives. Sovereignty, which resides in people, is exercised by Parliament in a democracy. Now that the British people themselves have called for Brexit does any of their representatives have a moral right to defy a popular verdict expressed in the most democratic manner via a referendum? How democratic will it be for the MPs, most of whom opposed Brexit, to meddle with PM May’s plans to pull out of the EU or even try to block Brexit following the Supreme Court ruling at issue based on a lacuna in the Act of Parliament which created the referendum but has remained silent on what should happen as a result? Should the MPs decide to try to block Brexit, with or without success, wouldn’t it be a case of the tail wagging the dog? What would such a precedent lead to vis-a-vis relations between people and their legislators?
Labour Leader Jeremy Corbyn has said his party will not try to derail Brexit but may seek amendments to the legislation. But, the British media are convinced otherwise. They think as many as 80 Labour MPs will vote against the government’s move to trigger Article 50, according to agency reports. If what is being speculated comes to pass, the trigger Bill, as it were, will be more than a formality contrary to the thinking of the Leave campaigners.
The British SC ruling makes us revisit A. C. Dicey’s authoritative view of sovereignty. What we gather from his numerous works on this concept which is the be-all and end-all of the modern state is that parliament is the legal sovereign and the people are the ultimate repository of political sovereignty. He very convincingly argues that the legal sovereignty of parliament is not only constrained by but also subordinate to the political sovereignty of the people.
One cannot but agree with Dicey. The will of the people expressed through a referendum or a plebiscite must always take precedence over that of their representatives. It will be interesting to see how the British Parliament handles the Brexit issue which, if mismanaged, will have a corrosive effect on the principle of people’s sovereignty.