This week, judges in the highest court in the United Kingdom will hear arguments on a matter of constitutional law with potentially huge ramifications. The case, known as the Brexit case, is to decide whether the executive branch of government (Prime Minister Theresa May and her cabinet) has the authority to trigger art.50 (which formally notifies the European Union of Britain’s intention to withdraw) or whether it requires the express permission of the legislature (both Houses of Parliament) before it can do so.
The case the Supreme Court will hear is itself an appeal from a decision of the High Court of Justice in England and Wales on this matter, which ruled in favour of the latter. The judgment of the High Court turned on the principle of parliamentary sovereignty. It held that while matters pertaining to the ratification of international treaties was part of the Prerogative (that is, the residual powers reserved to the executive), the decision to leave the European Union would, on a practical level, require the repeal a number of acts of Parliament (not least the EEC Act 1972); in the absence therefore of any express authority, doing so would contravene the principle of parliamentary sovereignty.
Of all the legal principles of British constitutional democracy, the sovereignty of parliament is one of the oldest and least controversial, precisely because it (a) took 2 civil wars and a regicide to settle; and (b) has been entirely unchanged and unchallenged since 1689.
Indeed, the sovereignty of parliament (and the alleged derogation membership of the European Union caused to this) formed a large part of the argument in support of Brexit. One would imagine then, that the decision of the High Court was welcomed by the British rightwing press?
Wrong.
With almost metronomic predictability, the rightwing media have been beside themselves with accusations of political bias towards the judiciary. This allegation is both absurd and dangerous. The Court did not say that Britain shouldn’t or even that it couldn’t leave the EU; it simply said that the executive branch of government, at present, under the constitution, lacked the requisite power to do so. If it wanted this power, all it had to do was to go and get it from parliament. The Court gave a reasoned explanation for reaching conclusion (which is not to say it is not within the gift of the Supreme Court to overturn this conclusion).
The separation of powers is a doctrine central to all Western Democracies. Stated broadly, the position is that power in any polity should be divided between separate branches of government, each branch acting as a check and balance on the other. The function of the judiciary within the separation of powers is not to formulate or implement policy, but to interpret and apply the constitution. Without this check, the power of the executive would be virtually unlimited, undermining the very basis of the constitution.
If the decision of the Supreme Court does not go the way of the Brexiteers this weekend, it will neither compromise nor undermine the legitimacy of British democracy. It is the role of Parliament to express the will of the people; whether or not it considers the result of the June’s referendum to be a valid expression is a matter entirely for Parliament and not the judiciary. However, none of this detracts from the duty of judiciary to interpret and uphold the constitution in a matter that is fair and consistent, and not subject to the whims of either convenience or demagoguery.
