I must say that it is not very often that I open up my social media network and find an article entitled, "A vital reaffirmation of Parliamentary sovereignty."
And yet, on Wednesday of last week, my Linkedin network connected me to such an article written by Sandra Fredman FBA, QC, Professor of Law in the Faculty of Law and a Fellow of Pembroke Co. in the U.K. This excellent article is another example of a Politics 101 class (last week we found our lesson in the speech made at President Trump's inauguration by Senator Roy Blunt, Inauguration Committee Chair).
Fredman's article praises the British Supreme Court for reasserting the importance of Parliament in the British system of government when, in its recent ruling, it said that the executive does not have the right to begin Brexit negotiation without first putting the question to Parliament. I will explain why Fredman thinks that this is the right decision.
The Canadian Parliamentary system is similar to the one in Britain. In fact, we brought the model to Canada at 1867 and combined their Westminster model (they have a House of Commons and a House of Lords; we have a House of Commons and a Senate) with a system of federalism to create our governing structure.
It is serendipitous that this article would appear this week. I have spent the last few lectures explaining to students that our tradition has been to accept that representative democracy means that we acknowledge the role of Parliament and that we are not a direct democracy. This Supreme Court ruling reaffirms that principle in the U.K.
In order to understand the ruling, it is important to look at why the case was brought to the Supreme Court and to do this I need to explain the critical relationship between "the government" of the day and the Parliament.
After an election, a government is appointed when the Queen asks the leader of the party that won the most seats, or the leader of the party that can bring together a working majority of MPs in the House of Commons, to become prime minister.
At that point, the prime minister is the head of the executive branch of government and is given the authority to appoint ministers to run different government portfolios.
Both the powers of the prime minister and his or her ministers are derived from "statute, the Royal Prerogative and the common law."
The fact is, as a British Commons Select Committee points out, "there is no codified definition of (the) role (of the prime minister) set out in statute, or anywhere else."
Despite the fact that there is no clear rule book as to the powers and the role of the prime minister and cabinet, there is a long tradition of the accepted practice of government and politics. The prime minister and cabinet ministers exercise power and conduct the business of the nation.
So in his role as prime minister at the time, David Cameron decided to bring the question of the U.K.'s participation in the European Union to the people by way of referendum. In a modern democracy, the use of referenda on major questions has certainly not become the standard but is a generally accepted practice for consultation.
The referendum is a method of direct democracy: one person, one vote, on one question. In this case, the British people voted to withdraw from the EU but their opinion on the matter is... well, just that... an opinion.
Fredman's article explains that the decision by Prime Minister Theresa May to pursue Brexit as a matter of state (or government prerogative) because "the people have spoken" is problematic. The argument she makes is that Britain is not a direct democracy and that the executive cannot pursue Brexit on its own because Brexit will change the rule of law in the country and impact individual rights which are outlined in the agreement with the European Union.
The Supreme Court agreed.
The executive needs to articulate the changes to the relationship between the EU and Britain including the way that rights will be impacted.
And the executive needs to garner the confidence of the House of Commons and approval in the House of Lords because, the power to trigger Brexit does not lie with the people or with the executive.
In a representative democracy, it lies with Parliament.
