As we wrote earlier, on November 3, 2016, judgment in R (Miller) v Secretary of State for Exiting the European Union, [2016] EWHC 2768 was released. We’re pleased to host this guest post by UVic Law Professor Donna Greschner, commenting on the judgment and its importance for Canadian constitutional law:
Canadian constitutional lawyers will find much of interest in the High Court’s decision that the UK government does not have prerogative power to ‘pull the trigger’ on UK membership in the European Union. In the Court’s opinion, since the notice to withdraw from the EU would be irrevocable and thus would irreversibly affect legal rights created by statutes, the power to give notice is held by the body that created the statutory rights: Parliament. Unless Parliament relinquishes its power to the executive, which the Court held Parliament has not done, the power continues to be Parliament’s alone.
In short, the constitutional principle of Parliamentary sovereignty is paramount and must be respected by the executive: “This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It was…..decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognized ever since.” (at para. 26).
With Canada having inherited “a Constitution similar in Principle to that of the United Kingdom,” to quote the Preamble to our Constitution Act, 1867, the High Court’s understanding of the fundamental principle of Parliamentary sovereignty deserves our close reading, for it is our principle, too. During Stephen Harper’s time as Prime Minister from 2006-2015, executive disrespect of Parliament was common practise. Indeed, disrespect hardened to contempt at least once.
Although the High Court’s decision is already under appeal, its clear affirmation of the principle of Parliamentary sovereignty should stand as an important bulwark for representative democracy in times of troubling accretions of executive power.