Brexit, Article 50 and constitutional crisis: Why our quaint little nation, with its incredible history, was never really part of the EU

By repealing the European Economic Communities Act 1972 that initially brought us into the EU, decades of improvised legislative stacking would suddenly become unconstitutional. If a direct ‘yes or no’ question were put to Parliament, on repealing the Act or flagrantly denying the will of the people, individual MPs would be faced with a simple choice: either represent the voters or be at their mercy in a snap general election. And given the statistics by constituency, Brexit, and democracy, should triumph.

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By Alexandra Phillips l November 14, 2016

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Nigel Farage, leader of UKIP, fresh off Brexit referendum victory in June is now set to lead a 100,000 strong march on the Supreme Court hearing of the Government’s appeal in 5 December over Article 50

LONDON-First of all, Medieval England has a lot to answer for.

I have mentioned this before, and while it is hard to fathom, it is at the core of the entire debate about Brexit in the UK. My country has no written constitution.

This is something Americans, who by and large are remarkably well versed in their country’s constitution and the rights that it affords its citizens, may find hard to fathom. For my little nation relies upon a corpus of legal precedents dating back a thousand years, centuries before Columbus even set sail on his first voyage to the New World in 1492. In fact, the closest we get to any solid document outlining the apparatus of our democracy is the Magna Carta of 1215.

While Magna Carta carries little legal weight in modern Britain, as most of its clauses have been repealed and replaced over time via other statutes, it is still romantically cited and is indicative of the continuous development of English democracy.

Even after dynastic changes from Plantagenets to Tudors, to the execution of Charles I and the formation of Cromwell’s Parliament, through civil wars, the Reformation, the addition of Scotland, Wales and Northern Ireland, the UK has managed to hold on to a coherent national identity. After revolutions in most other societies, the new regime often rewrites the constitution to adapt it to the concurrent age. The UK, however, still considers legislation a millennia old as part of an organic ever growing tapestry that determines and shapes its democratic framework.

The main obstacle with a legislative bill of rights is that it can simply be added to ad hoc. It is forever in flux and open to interpretation.

Why the ghost of Henry VIII haunted the same sex marriage act

The debate around the same sex marriage act was equally wrought with confusion. In other countries, the legislation permitting same sex couples to marry, was a simple progressive development. But thanks to Henry VIII’s thirst for a male heir in the sixteenth century, and the Pope not permitting him divorce from his wife, he tore up the whole concept of religion in the UK and decided he was in charge of Christianity, enabling him to carry out a dissolution of his marriage and re-wed the next unfortunate wife. After destroying a few abbeys and sticking two fingers up at the Vatican, he essentially created the Church of England where to this day the English Monarch is still the head. As there is no separation of church and state, Parliament decreeing who can and cannot marry in the church is pretty much politicians telling a religion what to do. But equally the proposal of making all acts of marriage secular, with optional religious endorsement, would in effect be dissolving the premise, and therefore validity, of the Church of England itself.

It is all too easy for the UK to get itself into rather a pickle over the most basic, yet profound, political matters. Ask many Brits whether we would therefore want to scrap the monarchy and instead have a written constitution and the result, however, would be a resounding ‘no’. The very quaint complexity of our medieval system is exactly what makes Britain British. It necessitates among its citizens a sense of respect and common accord that would be undermined and diluted by crude referral to a set of rules. Even on the other side of the globe, Australia voted to keep the Queen as Head of State in 1999 and public polling, in the wake of the last Royal Wedding, put support of becoming a republic at an all time low. Sentimentality and romance are part of our countries’ lifeblood, however much of a nuisance they can be when tested by tough political determination.

Becoming a Member of the EU was unconstitutional, so how can leaving it not be?

The High Court’s judgment on Article 50 equally triggers a constitutional crisis. Obligating recourse to Parliament in activating the mechanism by which Britain would exit the EU, is feared by many to be a green light for opportunists hoping to block Brexit. Parliament would effectively be able to overturn the Referendum result or water down the terms of departure to a point where Brexit would become merely notional, and the UK would remain a member of the EU in all but name.

Of course this constitutional crisis originates from the fact that EU membership itself does not fit into the complex tapestry of an elusive UK constitution. When we joined the European Economic Community it was a simple trading bloc; there was no suggestion it would develop through progressive treaties granting the EU more and more legal supremacy. In fact when the EU proposed its own constitution, the move was blocked by a number of member states. In theory the constitution was scrapped, but re-emerged almost in its entirety as the Lisbon Treaty, ratified by one David Miliband as then Foreign Secretary and enshrined in UK law without a single public vote being passed. It was undeniably unconstitutional to permit the EU to usurp the legislative sovereignty of Parliament, so by what possible constitutional means could we now repeal it?

Queen Victoria beat the courts, but she died over 100 years ago…

Over the course of decades a number of Eurosceptic campaigners appealed the unconstitutional changes to UK law brought about through various EU treaties. Yet each time, the Courts refused to recognise the appeals on the grounds that international treaties are matters solely for the Government under the Royal Prerogative. In fact the position has historically been that even if a treaty is signed, the Courts take no notice until they are embodied in laws enacted by Parliament, with the legal precedent via a case settled between the Queen of England and the Emperor of China in Victorian England. In the case of Rustomjee v. The Queen, (1876 2 Q.B.D. 69) the then Chief Justice Lord Coleridge decreed that Queen Victoria “is beyond the control of municipal law, and her acts are not to be examined in her own Courts”.

So in accordance with legal precedent, the treaty-making power of this country rests with the Crown; that is, the Queen acting upon the advice of her Ministers. They exercise the prerogative of the Crown and in so doing cannot be challenged or questioned in the Courts.

You see, we tend to regard our Monarchy as great ambassadors of the nation, the Head of the Commonwealth, and recognise the distinction between crown and democracy through the opening ceremony of Parliament each year when the door is symbolically slammed in the face of the Queens representative, Black Rod. Yet still all of our legislation must undergo Royal Assent, and that pesky unwritten constitution makes it almost impossible to establish what should be correct and fitting in today’s democracy.

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In this specific case, the High Court is acting without precedent and suggesting that this treaty is unlike any other and so Royal Prerogative does not apply. This essentially sets a new legal precedent where courts can potentially interfere with the Government’s treaty-making powers. Harking back to the often cited Magna Carta which of course predated the modern form of Parliament, the country is determined to be governed by a ‘General Council of the Realm’ of ‘all those who hold [land] of us in chief.’ In modern terms, this suggests every household in the country. That being the case, Referenda should therefore be read as at least equal, if not higher than Parliament, for obtaining the country’s consent. Given as well that if the Referendum had been a general election, the vast majority of constituencies actually voted to leave the EU, thereby making an entirely convincing electoral map where if recourse to Parliament were necessitated, it would be passed with a hands down majority.

No wonder Cameron slinked off, he made a constitutional crisis!

The problem is, the Referendum Act 2015 which paved the way for the vote on the EU being held, provided only for an ‘advisory’ as opposed to a binding referendum. Even though Cameron no doubt thought that the referendum would be easily won by the Remain camp, he still carefully omitted that proviso, recklessly paving the way for constitutional crisis.

Whatever the result in the Supreme Court, there will now no doubt be an appetite for legal challenge, whether that be on the rights of EU citizens already here or aspects of undoing the Gordian Knot of legislation that has over the course of decades, and without any popular consent, been added to the already chaotic tapestry of legislative history.

Preparing for Civil War, Millennial style

Scottish First Minister Nicola Sturgeon has deployed her top Judge to attend the appeal in the Supreme Court in December, batting of course for the opportunity to vote down the motion to instigate Brexit and in doing so represent their electorate directly. The SNP have never made the pretence of being pro-EU and Scotland voted by a significant majority to remain. There is perhaps a democratic mandate, given her position as First Leader of Scotland and primary advocate for Scottish independence, to make her own claims on the conditions of Brexit.

On the other side, billionaire businessman Arron Banks, who established and heavily funded the campaign group Leave.EU has set up a crowdsourcing movement to pay for specifically selected pro-Brexit judges to also attend the case, as well as promising a rally of 100,000 people on Parliament the day the next hearing begins. His position is holding to account both the legal system and the Government with a sharp reminder that those who chose to vote leave, the collective majority voice in the UK, expect their position to be upheld.

The vote in Parliament to determine whether or not the decision to remain or leave the EU would be handled directly by the people was passed six to one. This, David Davies, Cabinet Minister for Brexit and long time Eurosceptic, argues, was the motion to determine the decision would be handed to a temporary plebiscite, under direct democracy.

It seems to me that without a constitution and no immediately relevant legal precedent, it is something of the case of six of one, half a dozen of the other.

But there is a neat, simple solution

By repealing the European Economic Communities Act 1972 that initially brought us into the EU, decades of improvised legislative stacking would suddenly become unconstitutional. If a direct ‘yes or no’ question were put to Parliament, on repealing the Act or flagrantly denying the will of the people, individual MPs would be faced with a simple choice: either represent the voters or be at their mercy in a snap general election. And given the statistics by constituency, Brexit, and democracy, should triumph.


Alexandra Phillips is former Head of Media for UKIP, the political party in Britain that campaigned to leave the EU and was aide to its charismatic leader Nigel Farage. She left UKIP after the referendum victory and joined the Conservative Party in order to ensure other big political ambitions are met in the U.K. She lives and works in London as a political advisor and communications consultant. Ms. Phillips is also a contributor to SFPPR News & Analysis, of the conservative-online-journalism center at the Washington-based Selous Foundation for Public Policy Research.