On November 3, as Delhi experienced dangerous air pollution due to crop burning in neighbouring states, a judgement delivered by the High Court of Justice in London sparked a fire of its own along the corridors of Whitehall. The court decided that Theresa May’s Conservative government lacked the power to trigger the process for the withdrawal of the United Kingdom from the European Union (otherwise known as ‘Brexit’).
On June 23, close to 52 per cent voters cast their vote in favour of the UK leaving the EU. The procedure for leaving the EU is addressed by Article 50 of the Lisbon Treaty. This provides a two-year withdrawal process from the EU once a state notifies its intention to do so. This two-year window offers an opportunity for exit negotiations between the leaving state and the EU. In the event that no agreement is reached within this window, the exiting state walks out empty-handed.
After the referendum, it became clear the British government was planning to trigger the withdrawal process under Article 50 — without the intervention of Parliament. This led to multiple challenges in the high court arguing that the government could not, as a matter of domestic constitutional law, unilaterally pull the trigger under Article 50. The high court agreed, deciding that the government could not effectively abrogate the rights available to British citizens under EU law without securing the passage of legislation in Parliament.
This decision bears significant consequences, arguing in favour of transparency in political decision-making. The key distinction between deliberations within government and Parliament is that while the former are plagued by secrecy, the latter are characterised by openness. Public scrutiny of constitutional decisions, and how they’re implemented, forms the bedrock of good governance.
The high court’s judgement has been branded by the tabloid press as a subversion of the will of the people, with the judges who delivered it described as “enemies of the state”. Leaving the rhetoric aside, this narrative is a gross oversimplification. The court neither challenged, nor questioned the referendum result. In fact, it was at pains to mention its judgement had no impact on the referendum as a political event.
The referendum posed the question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” Voters had simply to vote for “remain” or “leave”. That a majority of voters chose to vote “leave” does not give the government carte blanche to determine when and how the UK should undertake the process of exiting the EU — the government would still be required to achieve that end through constitutionally appropriate means.
Criticism of the court’s judgement is also ironic. Prominent members of the “leave” campaign often argued in favour of exiting the EU on the basis that it would restore the sovereignty of Westminster’s parliament. Nigel Farage of the UK Independence Party argued in favour of exiting on the basis that it would re-establish the UK as a “proud, patriotic country” that “makes its own laws” in the “sovereign parliament”. The lynchpin of the high court’s judgment is that it is parliament, rather than the government, which is the appropriate forum for triggering the withdrawal process under Article 50. It would seem incongruous to suggest that a decision being made to restore the sovereignty of parliament should not be made by parliament itself.
Finally, the case reinforces that courts and legislatures can be joint collaborators in protecting constitutional rights. At stake was a large catalogue of rights protected by EU law. The court’s judgment reaffirmed that the government could not, through a single pull of the trigger, expunge these rights without parliamentary scrutiny.
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