How the Supreme Court restored Parliament to its rightful place

De uitspraak van het Brits Hooggerechtshof heeft allerminst duidelijkheid geschept over de Brexit, stelt Prashant Sabharwal, promovendus European Constitutional Law aan Maastricht University. Het heeft het parlement vertrouwen gegeven waarmee het de Britse regering knap lastig kan maken in de onderhandeling over de Brexit. De bal ligt nu bij het parlement Westminster en veel issues blijven nog onduidelijk.

“Life is what happens when you’re making other plans” – John Lennon

This Tuesday, it was time for Theresa May to learn that truth. “But how?”, I hear you ask. I’m glad to oblige you and answer that very question. For that, we need to briefly reflect back on last week, when Theresa May gave her “Global Britain” speech on her plan for the post-Brexit era. In that speech, May guaranteed that Parliament would be given a final vote on any deal regarding the country’s withdrawal from the European Union. In effect, she effectively conceded that the UK Government had lost the case relating to the activation of Article 50 of the Treaty on European Union, the EU’s withdrawal clause.

That’s precisely what happened on Tuesday: the Supreme Court decided, by a 8-3 majority, to mandate that the triggering of Article 50 TEU can only take place after prior approval from both houses of Parliament, namely the House of Commons and the House of Lords. In its judgement, the Supreme Court underlined the following elements, several of which had already been alluded to by the High Court of England & Wales in its own judgment on the issue of Article 50:

  • The legislative scheme of the European Communities Act 1972 (the law through which the UK Parliament authorized the accession of the United Kingdom to the then-European Economic Community) gives precedence to European Union law as an “independent and overriding source of domestic law”. As such, the UK’s withdrawal from the European Union will inevitably result in the rights of UK residents being affected.
  • The United Kingdom’s withdrawal from the European Union represents a fundamental change in the country’s constitutional arrangements, which can only be effected by Parliament – especially as some existing domestic rights of UK citizens will cease to exist as a result of Brexit
  • Parliament did not give the UK Government the clear authority to withdraw from the EU when it enacted the ECA 1972. Nor did Parliament provide for an automatic withdrawal from the European Union in the event of a Leave victory in the 2016 national referendum
  • Whilst Parliament successively imposed controls on the decisions made by UK ministers at EU level, it did not make any provisions in regard to a withdrawal under Article 50 – operating on the assumption that a withdrawal was not possible without parliamentary consent anyway
  • In what can be seen as a major source of relief for the UK Government, the Supreme Court refrained from giving an effective veto over Brexit to the three devolved administrations (the Scottish and Welsh Governments, and the Northern Ireland Executive). Additionally, the Supreme Court also refrained from imposing conditions on the steps that the UK Government needs to take next.

Given the multiple constitutional law issues involved, from the role of Parliament, to the relationship between the Union government and the devolved administrations, as well as the role of the royal prerogative and the position of European law vis-à-vis UK law, this is a seminal case that will undoubtedly feature in the curricula of future British constitutional law classes. Nonetheless, a closer examination reveals that the Supreme Court judges have merely confirmed their settled jurisprudence on the issue of parliamentary sovereignty, whilst permitting Parliament to shape the framework for Brexit on its own – without any judicial interference.

"Straightforward bill"

The same evening, the Brexit Secretary, David Davis announced that the UK Government would introduce a "straightforward bill" withing the next few days to deal with the modalities of the activation of the Article 50 procedure. Given that the government had already been given advance notice of the judgment, its lawyers and civil servants have presumably had several days to prepare for this outcome and draft a bill in advance. However, MPs (including Conservatives) are now demanding that the UK Government publishes a White Paper, in which it outlines its Brexit strategy in detail and with proper analysis.

Meanwhile, it is the shape that Brexit will take that continues to remain unclear: by excluding Single Market membership and seeking a Free Trade Area with the European Union, the United Kingdom is throwing the future relationship with the European Union way up in the air – especially as controversial issues, such as the rights of EU migrants in the UK, the status of the financial services industry in London (and its loss of passporting rights) and future relations with the Republic of Ireland, still need to be resolved.

A new, confident Parliament may very well assert itself – and make a point of holding the government to account, even across party lines. The possibilities, either way, are interesting and exciting for anyone interested in British politics and UK constitutional law.

The ball is now in Westminster’s court – and this match isn’t over by a long shot.