The Tribune

WHILE THE world’s attention remains focused on the US presidential election and its immediate aftermath, another issue of international significance - the process of putting into effect Britain’s departure from the European Union (EU) - continues to cause concern and controversy.

The High Court in London ruled earlier this month that parliamentary approval was required in order to invoke Article 50 of the EU’s Lisbon Treaty, the formal mechanism for a member state to leave the bloc. This comes after Prime Minister Theresa May had already announced her government’s decision under royal prerogative powers to trigger Article 50 by the end of March next year.

The dramatic judgment appears to fly in the face of the outcome of the United Kingdom’s referendum last June in which a majority voted for ‘Brexit’ - a result which the then government promised unequivocally to respect, and to put into force immediately, as the will of the people. The former Prime Minister David Cameron made this undertaking on the basis that Parliament had earlier authorised the holding of the referendum by a substantial majority.

The government’s appeal against the High Court’s ruling will be heard in the Supreme Court on December 5. If it loses, ministers have accepted that primary legislation will be required before they can move forward to implement the result of the referendum. However, whatever the result, Mrs May has reiterated forcefully her intention to push forward with ‘Brexit’.

If it should come to a vote in the House of Commons, the evidence suggests that an overwhelming majority of MPs, including opposition Labour members, would support the government’s decision to start the formal process, despite demands by the Liberal Democrats and some Remain supporters, who are intent on derailing ‘Brexit’, for a second referendum on the issue.

The High Court took the view that ‘Brexit’ can only be triggered by such a vote because the European Communities Act of 1972, which took Britain into the then European Economic Community known as the Common Market, granted certain rights to the people which could only be taken away by repealing it, and that this represented an important constitutional principle that what Parliament grants cannot be removed by the executive. By contrast, the government contends that triggering Article 50 is only firing the starting gun for the ‘Brexit’ process and that the outcome of negotiations with the EU would be brought to Parliament for approval at a later stage in the shape of new legislation.

To the distant observer of this potential constitutional crisis in Britain, the issue seems to be whether the exercise of the royal prerogative should be permitted, in the eyes of some, to subvert representative democracy and parliamentary sovereignty.

It is about the constitutional relationship between the government and Parliament and the extent to which the executive should be able to undermine the exercise of the state’s legislative power.

Whether or not the referendum is advisory or legally binding, the judiciary is solely concerned with interpretation of the law as it stands and not with the political ramifications surrounding the will of the electorate in voting to withdraw from the EU.

While watching how this fascinating saga unfolds, it is clear that in a democracy it is for the courts to determine the limits of governmental authority under the law in relation to the powers of Parliament. An independent judiciary must arbitrate where there is conflict and provide a balance between the people’s interests and the government and Parliament.

Our over-riding impression is that this case in Britain is another instance of respect for, and adherence to, the rule of law in a mature democracy when it is politically inconvenient, if not troublesome, for the government to do this. It provides an important example for other countries, particularly constitutional democracies like The Bahamas, to follow when political circumstances might dictate otherwise.