Parliament’s Power Over Brexit

Posted By: November 16, 2016


Someday the British court ruling on Brexit may be studied as a milestone in parliamentary democracy. For now, though, it throws Britain’s fateful move to part ways with the European Union into considerable disarray.

On Thursday, a three-judge panel of the High Court unanimously ruled that since Parliament voted in 1972 to join the predecessor of the E.U., the government cannot withdraw from the union without Parliament’s approval, even though 51.9 percent of voters backed a departure in a June 23 referendum.

The case was brought by private citizens who argued that the government could not unilaterally strip away rights granted with membership in the bloc. Prime Minister Theresa May and her cabinet, aware that a majority of the members of Parliament had been against leaving, argued that the government did have authority, and she pledged last month to trigger the formal, irreversible two-year process for withdrawal by the end of March without a vote by Parliament.

If Britain’s Supreme Court — which may hear the government’s appeal in early December — upholds the ruling, the exit process could be seriously complicated and delayed, or even blocked. It is hard to imagine that with the public having voted, members of Parliament will not feel bound to follow its wishes, even though the referendum was not legally binding. But political calculations could change, and short of blocking an exit from the E.U., the legislators could demand greater control over how the withdrawal is negotiated. An early national election cannot be ruled out.

If the High Court decision added another twist to an issue that has profoundly divided the British, it also contributed a sorely needed dose of democratic and legal clarity. The referendum date was set in February by Prime Minister David Cameron, in the hope that it would silence pro-Brexit members of his Conservative Party. Instead, the vote ballooned into an impassioned plebiscite on globalization, economic dislocation, migration, identity and other issues that have galvanized citizens not only in Britain but across Europe and the United States as well. Mr. Cameron lost the vote and his job.

A mantra of the Leave campaigners was that Britain has ceded too much authority to Brussels and that the British Parliament needed to “take back control” of British affairs. The court’s ruling follows this logic — that only Parliament has the power to alter British law and therefore only it can choose to leave the bloc.

Although there will be an appeal, the lower court’s decision already underscores what the Brexit process and other populist movements in Europe and the United States have demonstrated: that elected officials in representative democracies abrogate their responsibility for tough decisions at their own peril, and at peril to their country. Britain’s Supreme Court may come to a different interpretation of legal precedent, but the political lesson is not likely to change.