Lyle Denniston, Constitution Daily's Supreme Court correspondent, looks at an upcoming historic constitutional moment for the British legal system: the United Kingdom Supreme Court decision on Brexit.
Americans with an interest in constitutional history might sense some similarity in what is unfolding now in the mother country. Britain, going through the “Brexit” process (ending its membership in the European Union), is making some new constitutional history. It is having what might be called its own Marbury v. Madison moment.
Recall that, in 1803 in the Marbury case, the U.S. Supreme Court set itself up as the ultimate interpreter of the American Constitution, declaring that “it is emphatically the province and duty of the judicial department to say what the law is.” And, in that phrase, “law” meant binding constitutional law.
For centuries, the final arbiter of what is constitutionally allowed or forbidden in the United Kingdom was the House of Lords, the upper chamber of the national Parliament. The Lords’ Appellate Committee was the final appeals court, the equivalent of a supreme court at the top of the judiciary. (Britain, unlike the U.S., does not have a single written constitution. But it does have what it calls a constitution, which is made up of an amalgam of legal sources and traditions, the most significant being cases that set binding precedents.)
Seven years ago, Britain transferred the House of Lords’ judicial authority to a new “Supreme Court for the United Kingdom.” That tribunal, with 11 justices, is steadily making its way toward being a strongly independent referee between the Crown and Parliament.
Even a passing knowledge of English history is a reminder that kings and queens – that is, the Crown -- have jousted with Parliament for governing supremacy since at least the 1600s. The Crown remains a sovereign power, but actual sovereign authority is shared with Parliament. The British today speak of ultimate sovereignty residing in “the Queen in Parliament.”
Kings and queens, before they were challenged by Parliament, had final legal power through what has been known as the “royal prerogative.” The Crown, in other words, was the very embodiment of law.
But, in one of the most famous episodes in English constitutional history, Sir Edward Coke, the Chief Justice, boldly told King James I in 1610 that the Crown did not have the authority to override or annul a law enacted by Parliament.
That very episode is now being cited as a specific constitutional precedent in one of the most significant tests yet for Britain’s young Supreme Court. That will be on display, starting a week from Monday, when all 11 justices assemble to begin what are expected to be four days of hearings.
The case before them is formally titled Miller & Dos Santos v. Secretary of State for Exiting the European Union. It is popularly known as the Article 50 (“Brexit”) Case.
This, too, is a constitutional dispute between the Crown’s remaining “royal prerogative” and the power of Parliament. Queen Elizabeth, of course, is the embodiment of the Crown, but her prerogative power in the British government is exercised on her behalf by her “first minister”—that is, the Prime Minister, currently, the Conservative Party’s Theresa May.
The core issue in the Brexit case is disarmingly simple: Does the Prime Minister, exercising the royal prerogative in the field of foreign relations, or does Parliament, using its power to change domestic legislation, have the authority to take the specific step that will trigger Britain’s exit from the European Union, to carry out the British people’s purely non-binding referendum vote in June to leave? (Technically, the issue is who can invoke Article 50 of the basic European Union treaty, which is the only “door” through which a Union member country can withdraw, by setting in motion a two-year exiting process.)
The current constitutional battle began early this month. In a ruling on November 3, Britain’s High Court – the tribunal just below the UK Supreme Court – sided with Parliament, declaring its paramount authority over British law in the domestic sphere. The ruling, citing the 1610 episode involving Sir Edward Coke and King James I among a multitude of other authorities and precedents, found that allowing the Prime Minister to use the Queen’s prerogative to trigger Britain’s exit from the EU would infringe on Parliament’s legislative supremacy.
Here’s why, according to the ruling: by joining the EU, with Parliament’s approval under a 1972 law, Britain became bound to obey the terms of a series of EU treaties that required Britain to make its own laws conform to the demands of EU provisions imposing legal duties and creating a series of legal rights. (A prime example of a legal right was the option to travel freely across the borders of all EU countries. In fact, the Article 50 lawsuit was filed by two individual Britons to protest the potential loss of such legal rights as a result of Brexit.)
But with the withdrawal from the EU, those provisions and the duties and rights they created would cease to exist for the British people. That, the High Court concluded, would mean that the Prime Minister had been empowered to scuttle all of the EU provisions, and that would amount – as a constitutional matter – to overriding domestic law to which Parliament had given its consent. Thus, the three-judge panel decided, only Parliament could take the step of initiating Brexit. It could do so under its supreme legislative authority – superior to the Crown prerogative.
That is the ruling that the government of Prime Minister May has now appealed to the UK Supreme Court, setting the stage for next week’s hearings, leading to what is surely going to be a historic decision.
The Prime Minister has reportedly drawn up a simple, three-line legislative bill that she and her aides believe would be sufficient to deal with the court ruling, if that ruling were to be upheld by the UK Supreme Court.
However, the Supreme Court’s Vice President, Lady Brenda Hale, gave a lecture on constitutional principles in Malaysia six days after the High Court ruling, and suggested that it might take a major overhaul of the 1972 law that Parliament had passed to authorize EU entry in order to satisfy constitutional norms. Those remarks have stirred a secondary controversy in Britain, focusing on how much disruption the Article 50 case may bring about as the branches of the national government sort out what they can do about Brexit.
One clear winner, even at this point, though, is the British judiciary. Even if the UK Supreme Court were to overturn the High Court’s decision, the judges clearly have become major players in the UK constitutional drama.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
