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FOCUS - Osservatorio Brexit N. 1 - 21/06/2017

 Brexit and the balance of powers. Getting to the bone of 'Democracy'

Brexit means Brexit. But what does Brexit mean? With less than a year to go until Brexit day, not only does this question still remains unanswered, but it is getting more obscure: what it is now being questioned is also who has the right to decide. In the vote of 23 June 2016, the British people famously expressed a preference for the UK to leave the 28-member-bloc and start on its path as a stand-alone country outside the EU, nothing was said on the form that such exit should take. Immediately after the referendum, it was clear that the Government would have led the process, also using a number of exceptional powers, in the style of Henry VIII, to face the exceptional circumstances. The reasons why Her Majesty’s Government naturally steped forward seems quite obvious. To begin with, international negotiations, by default, entail a degree of political discretion, which is normally believed to be best exercised by the political governmental branch of the State. In addition to this, the constitutional structure of the UK traditionally entails an overlap of Executive and Legislature: the party holding a majority in, and indeed the confidence of, the House of Commons forms the Government and proceeds to enact legislation utilising its powers in Parliament. This was for many years the “efficient secret” of the British constitution, its characteristic strength, which allowed the Government to secure the legislation needed to enact its policies. Such a secret is reflected in constitutional conventions, which have the potential to influence  how the Government exercises its ancient prerogative power inherited from the monarchs of old, when they are conducting international negotiations. Over the years, the control of Parliament by the Executive has created doubt over the traditional dogma of Parliamentary Sovereignty in the UK – famously restated in relation to EU law by the UK High Court in Thoburn v Sunderland City Council  - which is said to have turned into the Sovereignty of Government… (segue)

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