The executive arm of the United Kingdom’s government filed a petition with the European Union for its exit from the union. The United Kingdom cited Article 50 of the Lisbon Treaty, which allows member states to leave the EU. In June 2016, the executive held a referendum in which the British people voted to leave the EU. The legitimacy of this referendum was called into question when the executive decided to enact the vote’s content without consulting parliament (“Brexit Means Brexit – So What Does Brexit Mean?”). In its defense, the executive cited the Royal Prerogative that gave effect to UK’s membership of the EU was a secondary legislation which did not require parliament’s approval. A petition was brought before the courts of law which reiterated parliament’s authority. This, therefore, meant that before the exit was effected it needed to be endorsed by the two houses of the legislature. This paper, therefore, seeks to highlight the diverse roles of these three arms of government and the effect of their conduct during the Brexit.
Brexit is a combination of two words namely “British” and “Exit” (Babynina, Lyudmila). It was a popular term that was used when the United Kingdom sought to withdraw from the European Union in 2016. This move was necessitated by the need to regain control by the United Kingdom in order to remain sovereign and not bound by some legal and political considerations that are embodied in their European Union membership (“Background To The UK’S EU Referendum 2016”). The citizens of the UK were required to vote on whether or not the country wished to remain part of the EU. A vast majority of the people vote for Brexit and the UK is putting the necessary measures to ensure that the push to break away from the EU is completed by 2019 as earlier stated (Dallago, Bruno).
Before the UK finally upheld for the move to leave the EU a number of technicalities were involved. The first one was the triggering of Article 50 of the Lisbon treaty which provides for the prescribe format that any EU member state can utilize in order to withdraw from the European Union (Douglas-Scott, Sionaidh). Brexit was a major occurrence in the history of the UK and it involved various stakeholders both local and ones from abroad. The various arms of the government namely the parliament, the executive and finally the judiciary played very key roles in influencing the push to withdraw from the European Union. This paper will highlight the various roles of these arms of government and the diverse roles they played in the withdrawal process.
Parliament does have the underlying duty to hold the government accountable in all undertakings and the resistance by the Prime Minister to give details of the negotiations was an issue that did not auger well with the vast majority of the population. In order for the exit process to have any legal validity, the clear-cut roles of the two arms of government need to highlight and that is where the judiciary comes in. The main purpose of the courts is mainly to interpret laws and also to adjudicate the disputes between the various arms of government. The role the courts will play on this issue is crucial in restating the correct legal position one the Brexit issue.
The Role of Parliament
Parliament is the first arm of government that paid close attention to the Brexit process due to its inherent duty hold the executive accountable for all its actions (Norton, Philip). The two houses of parliament had already laid down procedures that provided for the analysis of any statute that pertained to the European Union. The parliamentary questions and select committees are some of the modalities put in place by parliament (“Parliament’S Role In The Brexit Negotiations | The Institute For Government”).
The Select Committees
The Commons had a European Scrutiny Committee whereas the Lords had two types of committees that dealt with matters pertaining to the EU (Norton, Philip). These included a six policy-focused subcommittee and the central EU select Committee. Documents that came from Brussels to the UK were scrutinized in the order of importance. The various committees looked at the various policies and legal processes that related to British’s exit from the EU.
With as much as the various committees in the two houses are mandated to scrutinize the legal and structural implications of the withdrawal, the floors of the respective houses are given opportunities to adduce questions which will be answered by the relevant ministers that are affected by the Brexit process (Norton, Philip). The ministers that appear before parliament were Liam Fox, David Davis, and Boris Johnson. The Commons had a custom of adducing oral questions to the ministers that were present. The process took 5 weeks and was generally a fact-finding mission. In the Lords, the ministers could be asked both written and oral questions. They were also required to table the status of the negotiations that they were conducing.
There has been a brewing debate within the UK and more so within the houses in parliament. The dilemma was with regards to Article 50 and the specific issue was determining the legal validity of the referendum that the citizens of the UK went through (Douglas-Scott, Sionaidh). The European Union Referendum Act 2015 does not prescribe what could happen in the event that one of its member states takes a vote to withdraw from the union. The Members of the two houses have a duty to also have their vote in order to affirm the position that was made by the citizens. This is after the secondary legislation seemed to withdraw power from the houses to give their views on the Brexit issue. The parliament is also tasked with the duty to approve or disapprove the motion that is set out by the executive in its bid to negotiate for certain terms in the Brexit issue. Parliament also has a crucial role to scrutinize the post-Brexit treaties in order to ratify the ones that serve the best interests of the UK and propose amendments to the ones that have a multiplicity of legal loopholes (Hübner, Kurt).
The Role of the Executive
The executive is the arm of the government that is tasked with the mandate of making policy considerations within the jurisdiction of the United Kingdom. It is also tasked with the duty to ensure that it provides the necessary environment to implement the laws that have been made and ensure that law and order are maintained. With regards to the Brexit issue, the executive was tasked with the role of triggering article 50 of the Lisbon treaty that provides for the withdrawal of the United Kingdom from the European Union (Hübner, Kurt). This move was subject to a number of debates due to the fact that invoking of the article was not done after consulting parliament which is tasked with approving of various legally binding instruments in the UK. The executive in its defense cited the fact that secondary legislation was adopted by the UK in giving effect to the validity of the enforcement of the EU in the UK meant that it had given the executive the autonomy to act without consulting the parliament. The current Prime Minister, Theresa May has stated time and again that the executive is not bound to give any running commentary on the Brexit issue.
The executive is also tasked with the role of engaging in negotiations with the EU to ensure that the transition period that has been set runs smoothly and provides the necessary framework to oversee the stipulated guidelines. The executive was also tasked with informing the citizens of the material facts in the Brexit issue in order for them to make an informed decision when conducting the referendum that affirmed the executive’s position in the Brexit issue (Kauders, David). The executive is also mandated to make various treaties with the EU in order to set the necessary safeguards that protect the interests of the country and those of the EU in light of the impending departure of the UK from the union. The treaty will set the conditions with which the EU member states will relate with the UK in terms of existing institutions and their validity, the interactions between the various states and its nationals and also highlight some trade and security concerns that might arise.
The executive has a duty to maintain transparency and accountability to the citizens in the United Kingdom (Pathmarajah, Stephen). It needs to disclose the elements that influence its discussion on the negotiation process. The fact that the executive fails to acknowledge that it owes a duty to parliament to maintain full disclosure deviates from its constitutional obligation to maintain accountability. This position was reiterated in the ruling made by the High Court in Miller and Tozetti vs. Secretary of State for Exiting the European Union and 2 others. The learned judge stated, inter alia, that the secretary of the state lacked the mandate under the Crown’s prerogative to invoke Article 50 to depart the EU.
The executive also has a duty to determine the form of the Brexit. The referendum that was passed by the citizens of the UK to withdraw from the EU did not contain other pertinent issues such as the retention of the European Economic Area (EEA) in order to be at liberty to take part in the EU single market. In the executive’s argument, other members of the EEA such as Norway are not members of the EU and therefore retaining of this membership slot will not go contrary to the resolution to withdraw from the EU. Another argument that was advanced in light of the idea that the UK still wanted to retain the single market due to the fact that failure to do so would cause a 4% decline in the economy of the country. Other proponents argued that the executive failed in its role to disclose some of these facts, therefore, leading to confusion after these developments. A majority of the citizens believed that their vote to exit the EU also meant that they would also exit the EEA.
The executive has a role in instituting draft motions that outline the position of the UK in the Brexit process. These draft motions will also highlight the negotiations process and the steps taken in the realization of the Brexit process. These motions would thereafter be tabled before parliament in order for them to be scrutinized and approved.
The Role of the Judiciary
The next arm of the government that played an important part in the Breast process is the judiciary. Their inherent role of the courts within the United Kingdom is to interpret the various statutes and legal issues that arise within the jurisdiction. The judiciary is also said to make laws thorough case laws or what is termed as precedence (Perkins, Anne). In the Breast process, the judiciary faced the task of instituting judicial review proceedings to ascertain the correct position with regards to the duties of the two arms of government namely, the executive and the parliament (Perkins, Anne). This was after there was a conflict of interest between them with regards to the authority of the executive to invoke Article 50 of the Lisbon Treaty.
The matter before the court was brought by two claimants who alleged that the Secretary of State for Exiting the EU had no legal authority to institute the proceedings to withdraw the UK from the EU without the consent of the parliament. The court ruled that the executive did not have the legal authority to trigger Article 50 which prompted the push for the withdrawal from the EU. The validity of the Royal Prerogative that was cited by the executive was invalidated and the courts stated that that was not an appropriate legal instrument that could be relied on (“The EU’S Role In Brexit Negotiations | The Institute For Government”). The court also stated that the referendum was only a consultative measure to highlight the views of the general public but was not meant to have a binding effect on the country.
The court reiterated the authority of the parliament and stated that in order for the referendum to have a force of law it needed to be endorsed by the two houses of the legislature. The court played an important role in acting as the independent arbiter in adjudicating the matter in light of the prevailing pressure that they were facing from all quarters to rule in favor of the executive. The court looked at the issue more as a political as opposed to judicial but it still maintained its autonomy. The biggest impediment to the court’s role in the Brexit issue was due to the fact that the Constitution was unwritten and had to be drawn from various legal instruments.
With as much as parliament’s authority was reaffirmed by the courts, the prevailing pressure from the public caused both houses to maintain a soft stand. The fact that close to 15 million people voted for the push to withdraw from the EU the members of parliament felt that they could not object to it since it would go contrary to the views of the people whom they are said to represent. The referendum results needed to be upheld lest the members of the houses lose their seats when they sought to defend their seats. Nonetheless, all the organs of government in the played their various roles with utmost diligence but the judiciary stood out as an arm of government that is autonomous and could make independent decisions albeit the pressure that they faced.
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