When did the UK Supreme Court last receive this much attention? Probably never! This week the highest court in the land has been hearing an appeal by the British government against a High Court decision that Article 50 of the Lisbon Treaty, the mechanism for leaving the European Union, can only be invoked by government with the consent of Parliament. The case goes to the heart of the relationship between the executive, legislature and judiciary on which our democracy is based. This week is therefore an excellent opportunity to witness the British Constitution and the rule of law in action!
So what is the “Brexit” case all about? Is it an attempt to subvert the “will of the people” and derail any attempt to leave the European Union? Will the Court be deciding whether the vote by a majority of the British electorate in the June referendum to leave the European Union should be overturned? The answer very clearly is “no”. The issue in dispute is not whether we leave the EU, but how we legally do so as a matter of UK constitutional law.
We are very unusual in this country in that we do not have a written Constitution. Nobody ever sat down with a piece of paper to invent our system of government. Our Constitution evolves and is the product of history. Power has shifted over many years from Monarch to Parliament. Above the entrance to the Supreme Court is a frieze which depicts the moment in 1215 when King John agrees to the demands of his rebellious barons and adds his seal to Magna Carta enshrining the principle that a King’s powers are not absolute, but subject to the law of the land. In subsequent centuries through civil war, the execution of a King and finally a “Glorious Revolution”, the fundamental principles of our Parliamentary democracy were developed. The Bill of Rights 1689 asserted the supremacy of Parliament and curtailed the King’s power to dismiss judges at will thereby securing an independent judiciary. In later years executive power moved from the monarch to the Prime Minister and his/her government of ministers leaving the monarch’s powers as essentially symbolic.
In our 21st century this means that our Parliament, our law making body or Legislature, is sovereign, that Executive (formerly King, now Prime Minister and Government) is accountable to Parliament, and that Executive power is subject to judicial review by our independent Judiciary. Put most simply the Supreme Court (Judiciary) will be deciding whether or not the government (Executive) is abusing its power by invoking article 50 by use of the “Royal Prerogative”, or whether it should be compelled to secure a majority in Parliament (Legislature) before invoking Article 50.
Given that the Prime Minister Theresa May holds that role because she is the elected leader of the conservative party which has a majority in Parliament she should have no difficulty if/when the time comes in passing that required Act of Parliament. As a matter of politics Brexit will happen. The law requires that it must be done correctly.