Next Tuesday morning, as early-rising Americans on the East Coast start their day, they will learn how Britain’s highest court has decided to sort out its own role as a constitutional court in the face of a potential governing crisis with repercussions throughout the United Kingdom and across the Channel in Europe.
On Wednesday, the U.K. Supreme Court announced that it will issue a final decision in the so-called “Brexit” case next Tuesday at 9:30 a.m. London time (4:30 a.m. on America’s East Coast). A summary will be released along with the full decision.
Depending on how that court rules, the decision could have a major impact on how Britain formally starts the process of leaving the European Union in a gesture of rigorous national independence, but it also may profoundly influence the future of Britain’s Supreme Court as an independent power center in the governing life of that nation.
The government of Prime Minister Theresa May has claimed that it can “trigger” the separation from the EU simply by declaring that it has taken that step, invoking Article 50 of the EU treaty that is the sole mechanism for a member nation to separate itself. The Supreme Court will decide whether the May government does have that power, or whether, instead, only the British Parliament can take the initial step to leave the European combine.
The mere fact that the Supreme Court is actively pursuing the answer to that choice itself is a clear sign of its emergence within the British constitutional system as a power in its own right. It has existed only for seven years. For centuries before that, the ultimate arbiter of the meaning of Britian’s unwritten constitutional traditions was the House of Lords, the “upper” house of Parliament. Now, the Supreme Court stands alone as a more-or-less independent tribunal even though it is still subject to the sovereign power of Parliament.
Behind that superficially simple choice that the UK court is pondering lay centuries of British history, going back to the 1600s when the nation’s kings’ and queens’ awesome power to override any law passed by Parliament was taken away, supposedly forever after.
What remains of the “royal prerogative” is in the hands of the monarch – now, Queen Elizabeth – and is exercised on her behalf by the Prime Minister, who heads what is the equivalent of an Executive Branch even while the PM serves as an elected member of Parliament. The prerogative still exists mainly in support of what actions Britain’s government takes in the field of foreign policy.
In November, a middle-level institution in the British judiciary, the High Court, ruled that the prerogative power of the Prime Minister could not be used to take the nation out of the EU. Only Parliament had that authority, the High Court declared. The most important facet of Britain’s constitutional tradition, it said, is the ultimate sovereignty of the Parliament. When Britain entered the EU more than four decades ago, in 1973, it did so only with Parliament’s permission, and that cannot be undone by the Prime Minister pushing the “trigger,” according to that ruling.
Britain’s people had voted by a narrow margin last summer to exit the EU, but that vote result had no binding legal effect. Getting out of the EU could be done only by the Article 50 process under the EU treaty.
The dispute over the “Brexit” question was appealed to the UK Supreme Court by the May government, and – for the first time in the young history of the UK Supreme Court – all of its 11 Justices sat together for four days of hearings in December.
Some of the Justices openly wondered whether the Supreme Court had any power to get involved at all, but that did not appear to be majority sentiment. As the four days of hearings unfolded, the complexity of the “Brexit” choice deepened, because it not only tests how to start the exit process, but will have a major impact not only on Britain’s central government, but also on the separate parliaments of Wales, Scotland and Northern Ireland, which have their own powers at stake. Northern Ireland’s future relationship with the Republic of Ireland (not a part of the UK) may also be affected in major ways.
And, because many European laws that were enacted during the time that Britain has been an EU member have now become woven into the domestic law of Britain, those laws will simply expire when Britain’s exit is completed. And among those laws are many that guarantee legal rights to Britons themselves as they move across the nations of the EU, as well as to citizens of other EU nations who live in Britain. Indeed, it was the looming loss of most of those legal rights that led two individual Britons to file the court challenge to the government’s power to act on its own in triggering the exit process.
One other effect of Britain leaving the EU is that a major EU institution – the European Court of Justice – would no longer have the authority to makes its decisions binding in Britain.
A key question that the Supreme Court decision may answer is whether, if Parliament alone can start the exit process, can it do so by a very simple piece of legislation, or must it address the whole panoply of legal consequences of separating from Europe. That question is already being debated in Parliament, too.
It is now very clear, in the wake of a major policy speech this week by Prime Minister May, that her government wants a very clear break with Europe, although it has vowed to continue to be a friend and trading partner to the other EU nations. Once Article 50 of the EU treaty is triggered, a negotiation process – lasting perhaps at least two years – will begin over the actual terms of any post-Brexit separation.
But, at least by next Tuesday morning, the constitutional drama surrounding that nation’s Supreme Court may be resolved, in one way or another.
(This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)