One of the greatest criticisms of EU membership by Brexit campaigners was centred on the principle that it compromised British sovereignty. Post-referendum and the 'Leave' vote, the question of sovereignty is once again at the forefront, as people begin to realize their simple yes/no vote never determined the terms of separation from the EU. The question that the British people must now face is again one of democracy: is Parliament entitled to vote on Brexit, or can the Government use their Royal Prerogative power to bypass Parliament - the democratic element in our constitutional system - based on the referendum result, which was simply advisory and without legal effect?
Is it democratic to prevent Parliament from voting on terms before initiating Article 50? Parliament is constitutionally the supreme lawmaker, not the government of the day, so is it even legal for the government to usurp the position of Parliament, which represents the British people?
The courts rule for Parliamentary scrutiny
The question of Parliament's level of involvement is to be decided in the courts. The High Court has already ruled against the government in favour of a parliamentary vote and scrutiny of Brexit. The case was brought by top legal firms on behalf of two claimants: investment manager and philanthropist Gina Miller and hairdresser Deir Dos Santos. Ms Miller argues that only Parliament could make a decision leading to the loss of her rights under EU law.
She stated: "What we're saying is, simply, you can't have it both ways. You can't talk about getting back a sovereign Parliament and being in control at the same time then bypass it... We cannot have a democracy like that." Mr Dos Santos explained: " I voted for Brexit in the referendum for the sole reason that I wanted power to be returned from Europe to the British Parliament...But I did not think it was right for the government to then just bypass Parliament and try to take away my legal rights without consulting Parliament first.
I am grateful to the court for the result...this is a victory for parliamentary democracy."
A 'post-truth' climate
The idea of a referendum may have seemed straightforward, but with an issue as complex as EU membership, many failed to see the ramifications. Myths and incorrect rhetoric were promoted by both sides, and facts became secondary in what is increasingly a 'post-truth' climate.
The democratic deficit of EU membership is, in reality, much less than was suggested by the 'Leave' camp. The impression that was promoted played on the public's lack of detailed knowledge of the system, exaggerating Britain's loss of sovereignty. It is now British democracy and the UK constitution which are being put to the test.
The government versus the constitution
The government has won the right to appeal the High Court's decision to the Supreme Court. The case against them, however, is gaining momentum as both the Scottish and the Welsh governments will argue against the legality of the executive using its power to pull all countries of the UK out of the EU without parliamentary consent.
The relationship with devolved legislatures is governed by constitutional conventions which must also be respected. It remains to be seen whether the constitutional necessity of democracy, as represented in Parliament, will be given its due role.
