1Throughout the campaign for the United Kingdom’s European Union membership referendum, most arguments relied on divergent views of the nature of the European Union : the “Remain” camp saw the EU as a blessing for the UK and a chance for further collaboration with the continent, while, on the other hand, “Brexiters” depicted the EU as an ever-growing “leviathan” with deep-reaching powers imposing an unnecessary drag on the UK’s finances.
2On June 23rd, 2016, 51.9 % of those who voted chose to leave the European Union, triggering David Cameron’s resignation as Prime Minister. Following a leadership contest within the Conservative party, Theresa May took over in Downing Street on July 13th and put together a cabinet of her own, with the aim of steering the nation through withdrawal negotiations with the EU. Theresa May then formally invoked Article 50 of the Treaty of Lisbon on March 29th, 2017, thus officially notifying the European Union of the UK’s intention to withdraw from the Union by March 2019.
3The referendum’s results and subsequent political turmoil have not particularly helped settle the public debate in favour of the “Leave” or “Remain” sides once and for all. On the contrary, as the current government’s outlined Brexit strategy is being revealed, the debate keeps raging with a notable shift : arguments now focus less on the UK’s place in the EU and the extent of the latter’s political purview than on domestic constitutional issues.
- 1 Nelson,N., “Tory Civil War looms as Eurosceptic Roundheads threaten David Cameron and his Cavaliers (...)
4Therefore, it is perhaps not particularly surprising to see some commentators refer to the current state of affairs in British politics, between constitutional uncertainty in Whitehall and plotting behind the scenes in Westminster, in Civil War-era terms. Over the past few months, a handful of journalists have taken to calling officials on either side of the Brexit divide “Roundheads” or “Cavaliers”.1 The former, as advocates of the constitutional principle of Parliamentary sovereignty, argue that only Parliament has the authority to steer the UK out of the EU, while the latter object that such a policy decision should fall under the government’s Crown prerogatives and require no assent from Parliament.
- 2 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union (...)
5The clearest example of the constitutional nature of the issue was highlighted in a straightforward manner by the legal challenge brought to the courts by Gina Miller against the UK government,2 arguing that the decision to invoke Article 50 of the Treaty of Lisbon was part of Parliament’s, not the government’s, prerogatives. This legal case, in which the claimant largely relied on the “Roundhead” notion of Parliamentary sovereignty, gained much attention in the media as it was heard by the High Court in November 2016, and then allowed a “leapfrog” appeal to the Supreme Court, which upheld Miller’s claim on January 24th, 2017.
6The referendum and subsequent debates surrounding the validity of the “Brexit” process have led to a growing divide in the way complex legal, political questions are envisaged by modern-day “Roundheads” and “Cavaliers”. While this Civil War-era trope originally provided journalists with a witty -- yet fairly accurate -- way to describe the “Remain” and “Leave” sides prior to the referendum, the metaphor was soon afterwards expanded to illustrate opposed views both on the role of Parliament and on the nature of the British Constitution, as both have been considerably shaken by a necessary part of improvisation from the UK government in the face of such a daunting, unprecedented task as withdrawing from the European Union. As all three branches of the government (legislative, executive, and judicial, with the High Court and Supreme Court weighing in on the issue) became involved, the respective powers of each branch were consequently thrown into the spotlight and are still today the crux of many debates, from the representative function of MPs to the role of judges considering the challenge Brexit is causing to the structure of legal sources in the UK. Finally, and perhaps above all, the “Roundhead v Cavaliers” metaphor may also be aptly applied to the divided state of the Conservative party. Ironically, the referendum on the UK’s membership in the EU, designed to rein in the Eurosceptic wing of the party under David Cameron, has failed to meet its goal and has left Theresa May facing similar -- or even increased -- challenges to her leadership.
7Since the results of the referendum in June 2016, the question of the procedure Britain is to follow in withdrawing from the European Union has been raised almost daily and the entire process remains shrouded in mystery, uncertainty, and even controversy due to at least three factors. First, until the referendum, the “Remain” campaign, led by the Prime Minister, held the view that defeat was quite unlikely, so no contingency plans seem to have been drawn up. Secondly, the fact that the United Kingdom is the first member state to ever try to leave the European Union means that the government (and EU officials alike) understandably have no choice but to pave their own way. Thirdly, the peculiar nature of the British Constitution may constitute a further obstacle to obtaining clear answers as far as administrative, political procedures are concerned.
8The British Constitution is indeed quite different in nature to that of the European Union or of many of its member states, in that it does not consist of one single document. While the French or American Constitutions fit neatly into one easily identifiable document, the United Kingdom’s principles of government and human rights are held in a variety of constitutional documents varying in nature and purpose and dating from different eras. As a result, no ‘official’ definition of the British Constitution exists, though it is largely accepted to consist of a handful of texts, most of which are relatively ancient documents implementing limits to the monarch’s authority and introducing human rights, for instance Magna Carta (1215), the Petition of Rights (1628), the Bill of Rights and the Coronation Oath (1689). This list could be expanded to include the Acts of Union (1707 and 1800), which created the United Kingdom as a country composed of different nations, and various other statutes which had an impact on the monarchy (Act of Settlement 1701, or even the Succession to the Crown Act 2013), on the separation of powers in the United Kingdom (Government of Scotland Act 1998, Constitutional Reform Act 2005) or on the people’s rights (Representation of the People Act 1832, Human Rights Act 2000). Some wider definitions of the UK Constitution go so far as to include the European Communities Act 1972, enacting the United Kingdom’s entrance into the European Union and acknowledging EU law as a source of British law, in the Constitution. Therefore, any issue related to the UK’s membership in the European Union is to fall under the purview of constitutional law and entails a discussion about the flexible nature of the British Constitution.
9The concept of Parliamentary sovereignty lies at the heart of the way the British Constitution developed from the introduction of limits to the Monarch’s authority (from the Magna Carta onwards) to the transfer of the latter to Parliament, as enshrined by the Bill of Rights at the time of the Glorious Revolution. Even prior to 1689, the Case of Proclamations3 (1610) had established that the Monarch could only legislate through Parliament. However, power struggles between the Monarch and Parliament (and their respective supporters) carried on throughout the 17th century and led to the Civil War, when Roundheads advocated the authority of Parliament while the Cavaliers staunchly defended Charles I’s powers. The Civil War did come to an end eventually, following a short-lived republican experiment under the Rump Parliament, and then Oliver Cromwell’s Commonwealth. Monarchy was restored under Charles II and the constitutional crisis was seemingly settled by the Glorious Revolution, when newly-crowned King William III was presented with the Declaration of Rights, which was formally passed by Parliament as the Bill of Rights in 1689. Besides vesting British citizens with basic human rights, this text further enacted the transfer of authority from the Crown to Parliament through a variety of measures : the Monarch was henceforth unable to disregard or suspend acts passed by the legislature and Parliament was the sole institution in charge of levying taxes, or maintaining a standing army in time of peace.
- 4 Lord Hailsham, The David Dimbleby Lecture, BBC, 14 October 1976.
10The constitutional struggles that the country went through in the 17th century do bear a passing resemblance -- though in a thankfully much more peaceful fashion -- to the current climate of uncertainty regarding the respective constitutionally-sanctioned powers belonging to Parliament and those falling under the spectrum of the Crown Prerogative as exercised by the government. In many respects, the notions of Parliamentary supremacy and the government’s role within it had already been under scrutiny on several occasions in the 20th century, not least in Lord Hailsham’s Dimbleby lecture on the theme of “elective dictatorship” in 1976.4 However, the latter described a situation in which the government controls an efficient majority in the House of Commons and has no trouble passing legislation, which is far from being the case given the very short majority currently commanded by the Conservatives. The Constitution’s flexibility can also lead to uncertainty in the face of a situation such as Brexit, which requires the invention of new Constitutional rules and procedures. If the Civil War-era metaphor is to be applied, then Theresa May and a large part of the Conservative government of the day adopt a stance similar to that of the Cavaliers of the 1640s in their belief that Parliamentary authority can be circumvented and transferred to an individual (whether in the hands of the Stuart-era monarch or of today’s Prime Minister). On the other hand, the Roundheads of today, in the opposition and in campaigners like Gina Miller, argue that centuries of history and constitutional developments mean that only Parliament should have the authority to implement the terms of the referendum and trigger withdrawal negotiations with the EU. Therefore, the use of the “Roundhead” and “Cavalier” allegories by several journalists in recent months go beyond the desire to write witty think pieces under catchy headlines and point to a true constitutional crisis brought about by Brexit.
11Quickly after assuming office as Prime Minister, Theresa May announced she would not immediately notify the European Union of the UK’s intention to withdraw from the Union since the Treaty of Lisbon allows for a two-year period of withdrawal negotiations once Article 50 is officially invoked by a member state wishing to leave the union. Nonetheless, the very question of the constitutionally acceptable manner to invoke Article 50 under UK law led to a landmark legal case revolving around the Constitution and notions of authority and sovereignty. The wording of Article 50 itself is vague enough to give sufficient leeway for each member state to potentially act upon it and merely states : “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements”. Understandably, the phrase “constitutional requirements” could -- and was -- construed differently by supporters of Parliament and of the government.
- 5 Pannick, D., “Why giving notice of withdrawal from the EU requires an act of Parliament”, The Times(...)
12A few days after the referendum, a leading barrister, David Pannick QC, wrote a column in the Times5 arguing that an act of Parliament was required to formally notify the EU of Britain’s intention to leave, implying that Theresa May could not do so as part of the government’s prerogative powers. Concurrently, Gina Miller, a businesswoman and campaigner, brought an action against the Secretary of State for Exiting the EU, staking her claim on the fact that the decision to invoke Article 50 had to fall under the purview of Parliamentary sovereignty rather than the Crown’s prerogative powers exercised by the government, which may be interpreted as a modern adaptation of the “Roundhead” stance of yore. The case was given a preliminary hearing by the Queen’s Bench division of the High Court in July, and full hearings were held in October. The arguments used by both parties were grounded in different views of long-established constitutional evidence. On the one hand, the government argued that the question of withdrawing from the European Union was a matter of international relations and international law, both of which usually fall within the scope of the Crown’s prerogative powers as traditionally exercised by the government. On the other hand, the claimants contested this view not only by referring to the general principle of Parliamentary sovereignty (which ought, in their view, to be upheld in the face of such a momentous decision as leaving the Union), but also by underlining that the United Kingdom had formally joined the European Union in 1972 after an act was passed by Parliament to that effect (European Communities Act 1972). In other words, according to this “Roundhead” approach, only Parliament can undo what Parliament has done.
- 6 [2017] UKSC 5, paras. 54-55: “The most significant area in which ministers exercise the Royal prero (...)
- 7 [2017] UKSC 5, para. 101: “In light of the terms and effect of the 1972 Act, and subject to conside (...)
13After a few days’ deliberation, the High Court ruled in favour of the claimants, underlining that withdrawal from the EU would mean that a considerable amount of statute law, passed by the British Parliament in application of European legislation, would have to be modified or repealed – a task which could only be carried out by Parliament itself. The government appealed this decision, which, due to its constitutional significance, could be reviewed directly by the Supreme Court (instead of the Court of Appeal) in front of all eleven sitting Justices, once again in recognition of the case’s importance. The court’s judgment, by a majority of eight to three, was delivered on January 24th, 2017 by Lord Neuberger. While parts of the ruling initially acknowledged that, generally, the power to join (or withdraw from) international treaties falls within the purview of the Crown’s Prerogative powers devolved to ministers,6 the government cannot exercise that power where that might mean changing domestic laws passed by Parliament,7 hereby upholding the reasoning of the High Court.
- 8 [2017] UKSC 5, paras. 130, 152.
14While the courts sided with the claimant, who had made the principle of Parliamentary sovereignty the core of their case, it remains difficult to say whether the judges’ point of view can be labelled as that of “Roundheads”, if the Civil War-era metaphor is to be extended. The fact that the courts ruled against the government, and therefore the Crown, certainly does not help consider them as being on the “Cavalier” side of the argument. At the very least, the final ruling does appear to strengthen the UK Parliament’s authority, not only when opposed to the government’s influence, but also with regard to the devolved legislatures in Scotland, Wales, and Northern Ireland.8 As a result of Gina Miller’s claim against the government, the Supreme Court was led to examine whether the Scottish Parliament and the Welsh and Northern Irish Assemblies were to be consulted by the government prior to triggering Article 50, but confirmed in its ruling that relations with the European Union were not part of the matters traditionally devolved to them.
15Nevertheless, the Supreme Court’s ruling reads less as a wholesale endorsement of the principle of Parliamentary sovereignty than as a careful appraisal of the specific status of European law and domestic statutes derived therefrom, and of the role of the British Parliament regarding the sources of law of the United Kingdom. The core of the decision acknowledges that the government cannot unilaterally trigger a policy amounting to a large-scale modification of statute law, especially concerning individual rights initially granted by primary legislation. The Justices remained on the side of constitutional consistency in this time of uncertainty. In doing so, the Supreme Court’s ruling did settle the matter of the constitutionally acceptable manner to give the EU notice of the UK’s forthcoming withdrawal under Article 50 and Parliament did enact a bill to that effect in March 2017. However, the debate surrounding the legal challenge helped bring into focus several constitutional issues linked, among others, to the separation of powers. Consequently, despite the Supreme Court’s ruling, the ongoing debate between the modern-day Roundheads and Cavaliers carried on, with each branch of the UK government under scrutiny for the sake of constitutional stability.
- 9 Slack, J. “Fury over High Court judges who defied Brexit voters and could trigger constitutional cr (...)
16The decisions of the High Court and of the Supreme Court were met with polarising – though quite predictable – reactions from the press. While many broadsheets praised the courts’ careful appraisal of each side’s arguments and underlined the way their rulings protected democracy and the separation of powers, several pro-Brexit tabloids unsurprisingly took outrage with what was perceived not only as a measure which would delay the UK’s withdrawal from the EU, but also as a serious overstepping of the judge’s powers. On November 3rd, the Daily Mail ran a bewildering front page, featuring the pictures of all three High Court judges – Lord Chief Justice Thomas, Lord Justice Sales, and Sir Terence Etherton – under the headline “Enemies of the people”. In his lashing editorial,9 editor James Slack (who has, since then, been appointed as Theresa May’s personal spokesperson) further lambasted the three judges for being “out of touch” with the pro-Brexit people, and for “declaring war on democracy”. Several conservative news outlets followed suit the same day with The Sun running a similar headline (“Judges’ Brexit blow : Who do EU think you are ?”), as well as The Daily Telegraph featuring a slightly more respectful version of the Daily Mail’s title (“The judges versus the people”). All three newspapers accused the High Court of creating a constitutional crisis, although the latter was brought about long before the judges’ decision due to the unprecedented nature of the withdrawal process.
17Furthermore, many criticisms levelled at the judges point to a supposed lack of respect for the separation of powers. As representatives of the judicial branch, judges should not overstep their powers and wield their authority over the legislative branch, which is of course in charge of drafting and passing statute law. At first glance, this argument might appear to hold water, especially when one considers the recent constitutional reforms enacted by Parliament to establish a clear separation of powers between the judicial and legislative branches, both of which used to be in the hands of the House of Lords until the Constitutional Reform Act 2005 created a separate Supreme Court (though former Law Lords still sit in the court today). This criticism is not, however, particularly new. Due to the relative vagueness of statute law in England and Wales, judges have been known for centuries to hold a large (and necessary) power of statutory interpretation. The judges’ powers may seem all the more impressive as, pursuant to the distinctive mechanisms of the common law system, higher court decisions are binding on lower courts, thus creating a source of law largely in the hands of judges.
18While the issue surrounding the Miller case was one of sovereignty (parliamentary or governmental), following the ruling, tabloids helped shift the debate towards two other kinds of competing sovereignties : the people’s (as expressed in the referendum) versus the courts’. Nonetheless, the constitution specifically vests the higher courts, above all the Supreme Court, with the legitimacy to examine and settle intricate constitutional debates. By running such headlines, tabloids suggest that the people’s vote in the referendum is fully binding and unquestionable, thus strengthening their populist nature and trying to stir up a resentment of the judicial branch amongst their readership.
- 10 UK Parliament, “European Union (Notification of Withdrawal) Bill, Division 135”. Hansard. 1 Februar (...)
19Beyond this wholesale takedown of the courts resides the staunch belief that the electorate’s will should be supreme. Yet the binding nature of the EU referendum remained (and remains to this day) a matter of dispute. As a result, even once the Supreme Court had ruled that the notification of withdrawal under Article 50 could only be triggered by a vote in Parliament, many MPs were left with an uncomfortable dilemma : were they to vote according to their party’s official beliefs or to the position they had individually assumed in the pre-referendum campaign ? Were they to follow the majority of “Leave” or “Remain” votes in their own constituencies or simply acknowledge the popular vote nationwide ? On February 1st, 2017, the EU Notification of Withdrawal Bill was passed quite comfortably in the House of Commons by a majority of 384, but a closer look at the voting tallies confirms the presence of divergent views not only on the question of Brexit but also on MPS’ role as representatives both of a political party and of a constituency. On the Conservative side, only one MP voted against the bill, but the lone dissenter in question was none other than Kenneth Clarke, former Lord Chancellor and Chancellor of the Exchequer.10
- 11 Ibid.
- 12 Ibid.
- 13 “EU Referendum results”. The Electoral Commission , 2016.
- 14 Greg Mulholland, “Statement on my position on the vote on Article 50”. Erreur ! Référence de lien h (...)
- 15 Ibid. The Electoral Commission.
20On the other hand, Jeremy Corbyn imposed a three-line whip on the Parliamentary Labour Party, whose official position was to vote in favour of triggering Article 50, at least initially, in acknowledgement of the national result of the referendum – quite certainly as a sop to pro-“Leave” working class voters in Labour’s heartlands in the Midlands and the North of England. Despite Corbyn’s orders, a fifth of all Labour MPs (47 out of 229, including Heidi Alexander, former Shadow Secretary of State for Health, and Ben Bradshaw, former Secretary of State for Culture, Media and Sport) voted against the bill.11 However, a large majority of opposition MPs diligently followed the line imposed by their leader although they might have been prominent figures in the “Remain” campaign or despite the fact that their constituencies had voted in favour of remaining in the EU in the referendum. For instance, Diane Abbott and Chuka Umunna, MPs for two London constituencies, voted in favour of the bill12 whereas their constituency recorded some of the highest percentages of “Remain” ballots in the referendum in 2016 (both 79 %).13 Conversely, two Liberal Democrat MPs, Norman Lamb and Greg Mulholland, voted in favour of invoking Article 50 out of respect for their democratic role14 even though leader Tim Farron had made the opposition to Brexit the core of his party’s ideology. However, Lamb and Mulholland stand for different approaches on whose views they should represent through their parliamentary votes : while the former comes from North Norfolk, where 58 % of the electorate voted to leave the EU, voters in Leeds North-West, Greg Mulholland’s constituency, had voted to remain in the Union, meaning that Mulholland’s vote reflected the popular vote nationwide rather than his own constituents’.15
21All in all, the highly polarising nature of the debate surrounding Brexit and the constitutional uncertainties highlighted by the legal challenges pertaining to the Article 50 procedure led members of Parliament to call into question their own function and to express different conceptions of their loyalties, more precisely whether the latter should lie with their constituents, the national popular vote as expressed in the referendum, or with their parties’ voting instructions. In the absence of a consensus as to the binding nature of a referendum, MPs were left with a considerable amount of soul-searching but the House of Commons’ eventual vote on Article 50 gave way to a large majority in favour of formally triggering the withdrawal process, thus reflecting the referendum’s results.
22While the vote on the Notification of Withdrawal bill led to divisions among the opposition, with Labour and Lib Dem MPs voting in defiance of their leaders’ instructions, the Conservative party can hardly be praised for showing a united front. John Prescott’s voice may have been an isolated, though quite high-profile, case of dissent expressed during the Parliamentary vote on Article 50, but the Conservative party remains, to this day, split into factions, many of which originate in divergent views on Britain’s relationship with the EU. It is worth mentioning that David Cameron, like many Conservative leaders before him, had been under repeated pressure from the party’s Eurosceptic wing to either renegotiate, or at least reconsider, Britain’s membership in the European Union. Before the 2015 General Election, Cameron pledged to hold a referendum on the UK’s membership in the Union if his party won the majority, and the referendum was duly included in the Queen’s Speech soon after the Tories’ victory in May 2015. David Cameron did end up campaigning for the “Remain” side of the referendum but his decision to let this referendum happen allowed him to rein in, albeit for a short period, the Eurosceptic wing and appear in control of his own party.
- 16 Swinford, S. “The Brexit Mutineers: At least 15 Tory MPs rebel against leave date with threat to jo (...)
23However, the referendum backfired spectacularly, and David Cameron was ironically pushed out of Downing Street by the very measure which was supposed to protect him from challenges to his leadership by the Eurosceptics, whose influence within the Conservative party remains, to this day, a thorn in Theresa May’s side. More importantly, Theresa May is now left with the undesirable task of sorting out this constitutional conundrum whilst facing the same game of oppositions Cameron was himself facing. The fight between hard Brexiters like Iain Duncan Smith or Michael Gove and pro-“Remain” Tories (like Kenneth Clarke, Dominic Grieve and Anna Soubry) rages on, thereby propagating the ancient, pre-Brexit opposition between Eurosceptic and Euro-friendly Tories, more than one year after the referendum. A recent front page of the Telegraph even featured the portraits of fifteen Tory MPs who might vote against the final terms of the withdrawal in Parliament under a menacing headline worthy of a “wanted” poster in a Western movie : “The Brexit mutineers”.16 In other words, the situation remains the same in the Tory party in a constant state of unrest over the issue of Europe.
- 17 Nelson, N., “Tory Civil War looms as Eurosceptic Roundheads threaten David Cameron and his Cavalier (...)
24Whether the metaphor is borrowed from the Civil War era or from a mutiny, the theme of rebellion in the Conservative party has been rife for many years. One of the earliest articles using the “Roundheads versus Cavaliers” metaphor to describe the current state of the Tory party indeed pre-dates the EU referendum,17 and likens then-Prime Minister David Cameron to Charles I, supported by his Cavaliers, opposed to the Eurosceptic Roundheads led by Iain Duncan Smith in the role of Oliver Cromwell. As the article’s author suggests, “the issue, then as now, was sovereignty”, with the leadership of the Conservative party at stake and rival factions in motion. However, the issue of sovereignty is intricately connected to the long-standing divergent opinions about Europe within the Conservative party, which means that the opposition between “Roundheads” and “Cavaliers” is not only a feature of Theresa May’s Britain ; it has been raging for decades. Consequently, Theresa May has recently faced repeated calls to step down, even more increasingly so since her gamble to call a snap election in June 2017 to strengthen her majority in Parliament backfired spectacularly, much like Cameron’s referendum. The old figureheads of the “Roundhead” movement like Iain Duncan Smith may have been replaced with new leaders able to pressure Ms May from within the Cabinet, like Foreign Secretary Boris Johnson, Brexit Secretary David Davis, or Justice Secretary Michael Gove, but, the “Roundhead” stance, acting and plotting in defiance of a disgraced leader, remains very much alive among hard Brexiters.
25To a certain extent, any Prime Minister’s term in office may be described as divisive along traditional lines of partisanship. Theresa May’s premiership, however, is likely to be defined by more than a deeply entrenched opposition between left and right. Instead, the deep scars of the Brexit process, which she inherited and then set in motion, are likely to be remembered in the future as the defining features of her time in Downing Street.
26Due to its own ambiguous nature, Brexit has been a divisive concept. The lack of consensus around its very definition has led to dissent being expressed within most mainstream political parties, echoing the way it has also divided the nation beyond traditional partisan lines. But these contrasting views call into question more than the issue of Britain’s membership in the European Union. Several other underlying questions have since sprung into view : the nature of the EU itself, the role of the British Parliament and the flexibility of the UK Constitution itself.
27While the EU referendum may have been designed as a short-term solution to the long-term problem of Eurosceptic rebellion within the Conservative party, the “mutiny” is likely to outlast Brexit itself because the issue of Europe has been, and will remain, the crux of many a debate surrounding not only the issue of sovereignty among the Tories, but also the focal point of several layers of polarising matters such as immigration, the economy, the Constitution and the very fabric of British identity.
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