Just as the referendum on Brexit on June 23 last year was (at least theoretically) testament to the resilience of democracy and the voice of the people, so too has the Supreme Court of the United Kingdom upheld the pivotal role of the judiciary and the legislature.
Last Tuesday’s watershed ruling does not accord short shrift to the wishes of the people — however marginal the victory — or the role of the executive. By effectively rejecting Prime Minister Theresa May's appeal about the procedure to be followed in triggering Britain’s departure from the European Union, the court has upheld the criticality of balance of power in the democratic engagement.
The ruling ought never to be misinterpreted as a judgment about Britain exiting the EU. By declaring that MPs are entitled to vote on whether to trigger Article 50, the Bench has upheld the rule of law which has now been accorded precedence over the rule of Whitehall. And there can be no two opinions over the legal and constitutional importance of the ruling.
The “Leave” vote will now be subject to constitutional procedures. Markedly, it has ceased to be a certainty over the past seven months, most particularly in the context of the increasing groundswell of reservations over the issue.
That uncertainty had intensified with the resignation of Britain’s ambassador to the EU, Sir Ivan Rogers. Clearly, 10 Downing’s belated presentation on the issue has failed to convince the other two organs of democracy — the judiciary and the executive. Mrs May's cardinal mistake was to keep her post-referendum strategy as secret as possible.
By dismissing the government’s appeal, the Supreme Court has upheld parliamentary sovereignty in the EU departure process. Most importantly, the judiciary has ensured that May’s government cannot take Britain out of the EU on what they call “prerogative powers” or without Parliament’s authority.
That is a cardinal principle and the court was right to uphold it. Ergo, the legislature has scored a moral victory over the executive, the underlying message being that a landmark development in British history, such as Brexit, cannot be the prerogative of the executive.
The court has also underlined its own independence in the aftermath of the criticism by the pro-Brexit section of the media and Brexit campaigners. Though ministers have been generally muted in their response to such attacks, the government was notably gracious in the face of the Supreme Court order.
The issue has now moved from the people to Parliament via Whitehall, and the court has kept open the question of ratification of Britain’s post-referendum relationship with EU. The exit per se is now open to question. The Supreme Court has confirmed that the referendum is not and cannot be the last word on so momentous an issue.