The Palace of Westminster, London. Photo by Flickr user TheFriendlyFiend.
The United Kingdom just hit another speed bump – or hump, as they say across the pond – on the road to leaving the European Union.
Last week the High Court in London ruled that, notwithstanding the results of June’s referendum, Parliament must grant approval before Prime Minister Theresa May’s government can invoke Article 50 of the Lisbon Treaty to formally begin the process of withdrawing from the EU.
This decision came as a surprise to many, not least of all May and her Conservative government, because it was Parliament that authorized the June 23 referendum in the first place, and lawmakers pledged at the time to abide by the vote’s outcome. But Lord Chief Justice John Thomas ruled that May cannot use the powers of “royal prerogative” to invoke Article 50 without a full Parliamentary debate and vote. The results of the referendum were technically “advisory,” rather than mandatory, according to the court’s reading.
Thomas said that the “most fundamental rule of the U.K. constitution is that Parliament is sovereign.” It is slightly ironic that this same argument for Parliament’s sovereignty underpinned many of the pro-Brexit arguments preceding the referendum. The very logic that drove many of those who voted to leave the EU may now delay the exit process.
Up to this point, May has resisted pressure to set out a detailed strategy for her negotiations with EU leadership, arguing that doing so would limit her flexibility and potentially weaken Britain’s bargaining position. It is evident that Parliament has not cared for being shut out this way. It is possible that legislators might get yet another chance to weigh in on the final terms of any deal that May, or possibly her successor, concludes with Brussels. This might come because of further litigation or simply because it is the price Parliament demands for letting withdrawal negotiations begin. May has said that she plans to invoke Article 50 no later than March 2017.
Very few observers believe the majority of British lawmakers have any interest in blocking Brexit outright, though if the High Court’s ruling is not overturned, they won’t be legally bound by the referendum. Whatever their personal feelings, presumably few of them want to face their constituents after ignoring the results of a plebiscite that they, themselves, authorized. What some members of Parliament do seem to want, however, is to push the government toward a “softer” Brexit than May has championed thus far, perhaps attempting to retain access to the EU’s single market in exchange for less severe border controls or other concessions.
Whatever happens next, Britain is treading new constitutional ground. Unlike the United States, or for that matter most modern democracies, the U.K. does not have a single written document embodying its constitution. Instead, the powers and constraints on London governments are prescribed by some eight centuries of custom, court decisions and acts of Parliament. So the British, by and large, don’t get into the sort of debates we Yanks have over things like the precise meaning of the phrase “the right of the people to keep and bear arms,” for example.
May’s government has promised to appeal last week’s ruling, and May recently reassured European leaders that she is confident in the appeal’s success. If the British Supreme Court rules in the prime minister’s favor next month, the government might still be able to meet the promised March deadline. If not, the terms of Brexit will go before legislators for scrutiny and debate, most likely in the form of newly published legislation for the Houses of Parliament to review.
Far be it for me to try to predict how a British constitutional debate will play out. But I do feel fairly certain that a failure to proceed with the Brexit process, one way or another, can only work to the long-term benefit of the anti-EU faction in British politics, particularly the UK Independence Party (UKIP), the party that arguably did more than any other to secure the “leave” vote in June. UKIP has struggled internally in the months since, and a threat to Brexit could be a rallying point.
I agree with those who think it unlikely Brexit will be overturned outright. Though the vote in last June’s referendum was close, and many in Britain would love to overturn the result and keep the country in the EU after all, I shudder to think what the backlash would be from citizens who feel their country has lost control of its borders and its future if their voices are ultimately overruled. The attitudes that were reflected in our own election by Donald Trump’s supporters are not unique to the United States. Many Britons who support Brexit have already expressed a sense of betrayal after the High Court’s ruling, even though it seems likely that the results of the referendum will still ultimately be honored.
One way or another, I expect Britain to go ahead with its exit from the EU. But the road ahead is looking longer and lumpier (let’s compromise between British and American usage) all the time.