When I was still a law student, our lecturer in constitutional law, the late Edwin Busuttil, dwelt in considerable detail on the Constitution of the United Kingdom as well as on our own. Much of our Constitution is based on the principles of UK constitutional law with the one big difference being that whereas our Constitution is written, the Constitution of the United Kingdom is unwritten and based on Acts of Parliament, court judgments and conventions.

Another fundamental difference between our Constitution and that of our last colonial master is that whereas in Malta we speak of the supremacy of the Constitution, in the UK it is Parliament that is supreme. The UK Parliament website gives this definition: “Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

Over the years, this supremacy has been limited in certain respects, chiefly by the devolution of powers to the Scottish and Welsh assemblies, through the Human Rights Act of 1998, the European Communities Act 1972 and the principle of the primacy of European Community law, as well as the decision to establish the Supreme Court in 2009 which brought to an end the function of the upper House of Parliament, the House of Lords, to act as the final court of appeal in the UK.

With a Trump administration in the US, a stronger Europe that can act and speak as one in the global arena is needed more than ever

Yet, Parliament remains sovereign to repeal any of these acts as it appears it will be doing in the case of the European Communities Act and the Human Rights Act.

Ironically, it will be the Supreme Court that will deliver the final judgment in the case brought by Gina Miller against the Secretary of State for Exiting the European Union, decided in her favour by the High Court of Justice on November 3.

The merits of the case did not involve the political decision resulting from the June 23 referendum. The argument was a question of law regarding the decision to trigger Article 50 of the Treaty on European Union whereby the UK would request the country’s withdrawal from the EU. As stated by the High Court, the sole question in the case was whether, as a matter of constitutional law, the Crown (that is the government) can use its prerogative power to set in motion the process for the UK to leave the EU.

The government’s main argument was that as a general rule, the conduct of international relations and the making and unmaking of treaties fall within the scope of the Crown’s prerogative powers. These are powers that remain in the hands of the Crown, now exercised through the democratically elected government. In a nutshell, the court found that in the case of the withdrawal of the UK from the European Union, there is more at stake than the mere unmaking of an international treaty since leaving the EU would have the effect of changing domestic law (including the repeal of the European Communities Act) and that the Crown has no power to do so. It is only Parliament that has the power to make and unmake domestic law.

The appeal is expected to be heard on December 7 by the 12 justices of the Supreme Court of the United Kingdom. Should the judgment of the High Court be confirmed by the Supreme Court, this will open an interesting scenario in that the government would need a parliamentary vote approving its intention to give notice pursuant to Article 50.

The High Court ruling may have reignited a spark of hope in those who still think there is a possibility for the UK to reverse its decision to leave. However, the Court was very explicit in stating that its judgment had nothing to do with the political decision. It did not block the Crown from invoking Article 50 but merely stated that parliamentary approval would be required.

It will, of course, be interesting to see how such a parliamentary process would take place. The current majority in the House of Commons was elected with a clear mandate to hold a referendum on EU membership, which it did. On Monday, the Shadow Foreign Secretary declared that the Labour Opposition would not ‘frustrate’ the Article 50 notification process but push for the government to reveal its plans for the negotiations before Parliament debates them.

Prime Minister Theresa May has, so far, been quite elusive on what “Brexit means Brexit” implies. In September, she told the House of Commons that she would not be giving a “running commentary” on the negotiations, even refusing to state whether she thought that the UK should stay in the single market or not. Labour leader Jeremy Corbyn recently asked the Prime Minister about this issue to which May replied that any deal would aim for “maximum possible access to the single market” for British firms to trade with, or within the single market. She went on to add that she was “absolutely clear that the British people” wanted “maximum control” over immigration.

Speaking in the Commons on Monday, David Davis, Secretary of State for Brexit reiterated that the government was determined not to allow its hands to be tied by revealing too much about its negotiating, stating that “Parliamentary scrutiny, yes; telling the Prime Minister which cardsto play, seeking to force her to disclose her hand to those she will be negotiating with, no.”

“We won’t achieve a good negotiation outcome if this is a negotiation being run by 650 people in this House of Commons, or nearly 900 in the other place. No negotiation in history has been run that way,” he added.

Clearly Brexit will be a messy affair. To my mind, most of the politicians in the UK are still in a quandary as to how to handle the process. The UK is in for a very bumpy ride. Hence, it is not only right but it also makes sense that the representatives of the people in the House of Commons are allowed to scrutinise and to hold to account the government and the way it is handling the whole issue. It was, after all, a main claim of the Brexiteers that leaving the EU would restore full sovereignty to Westminster.

Looking at it from the other side, the UK cannot just come up with a plan that appears to be in its best interests. Both the withdrawal itself as well as any agreement on future relations with a Union of 27 will be subject to negotiation and on an outcome that is acceptable to all 28. On June 23, the electorate in the UK decided on a future outside the EU. It did not, however, decide for the rest of us.

A fair deal cannot be ‘fair’ just for the UK, but must be the result of a compromise that allows the UK government to lead the country out of the EU but, at the same time, does not compromise the integrity of the European Union and its achievements over the past decades. With a Trump administration in the United States, a stronger Europe that can act and speak as one in the global arena is needed more than ever.

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