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Brexit: Court Decisions Reopen Arguments

Susan Sterett, Virginia Polytechnic Institute and State University, Center for Public Administration and Policy

Sitting in a field in the English countryside last July by a campfire, my London friends and I talked about Brexit and what it might mean for their friends and their work. Would their European friends who lived in England have to leave? We might have represented much that annoyed those who voted for Brexit. We drank wine by campfires in the English countryside, for starters. My friends assured me that most people would treat Brexit as done, and sitting outside discussing long-term changes in England was a minority taste. The pound had already fallen. Theresa May had become prime minister in a rapid contest for leadership after David Cameron resigned.

Enter the High Court, four months later.

How did the High Court in London just decide that Parliament has to vote on Brexit, and that the June referendum didn’t settle the question? More than four months after the British referendum on Brexit, the decision to leave the European Union is making headlines around the world again, thanks to a court once celebrated as separate from politics. With just one decision, the Court put Nigel Farage, the head of the United Kingdom Independence Party, in the news again, threatening revolution if Parliament doesn’t vote for Brexit. Revolution, in Britain, where they line up to wait for buses? The pound picked up after its lurching decline. A general election has become more likely. We had dueling common constitutional sense. Predictions about court decisions has been an American sport, not an English one. One constitutional lawyer said that of course the High Court decision would send Brexit to Parliament. Before the decision, another commentator said of course the High Court wouldn’t. Constitutional review once seemed so foreign. All the more reason to vote for Brexit, a slim majority of the electorate decided in June. Better to have a homegrown Bill of Rights, said the Brexiteers.

How can Britain have a constitutional decision without a written constitution? The Brexit decision from the High Court is not a human rights decision, so no one can blame Europe. In the United States we often explain court decisions by referring to the attitudes of the judges; look at our current debates. However, in both the United Kingdom and the United States, decisions from courts are the result of histories of shifting control, extended for political reasons. Decisions aren’t just a result of the attitudes of the judges Brexiteers are now condemning, and that Americans worry about in the United States. The principle of parliamentary sovereignty the High Court defended in the Brexit decision long seemed to limit what the courts could do, not invite them to act. British judges have been roundly criticized as the most conservative of conservative British institutions. Defending Parliamentary sovereignty, as the High Court did, puts the judiciary in the loop as significant constitutional players without taking power from Parliament—a win for both, at least on paper.

This decision does not come from nowhere. Common law courts tell histories of unbroken lines of precedent, grounding decisions in emergent fundamental principles. However, the High Court that decided the case has a more recent institutional history, one grounded in the Thatcher government more than thirty years ago, and the Blair government’s constitutional reorganization in the 1990s. The High Court of the 1980s decided cases concerning major conflicts in the Thatcher administration, including tax policy and control of the metropolitan governments. The Blair government consolidated constitutional reform, including in the courts, to show it was different from the by-then unpopular Thatcher governments. Under both, civil servants and the bar reorganized how lawyers brought cases challenging decisions to the court, to simplify the process. Simplifying partly was to help with the expanding immigration caseload, which links these disputes about parliamentary sovereignty with the human rights concerns still pressing in Europe today.

American commentators have often ignored judicial review in England and Wales, unless it is under rights principles from Europe. It doesn’t look like American constitutional judicial review. The courts don’t usually overturn a government’s decision as unconstitutional. Mostly, what the English courts do under judicial review is give something to another institution to decide again or do a better job of justifying a decision, just as it told Parliament to consider Brexit because Brexit amounted to repealing a statute. The decision may not stop Brexit, but giving another authority a chance to decide, or decide again, changes the timing of a political decision. In politics, timing is everything. Making the news, not just stopping an action, is a big part of what courts can do. The High Court may not change the outcome, but it sure has changed the political debate.

Celebrations of the Magna Carta last year claimed that rights have a longstanding domestic provenance in England, but not about its contested history and ambiguous use in protecting rights. We often tell histories of continuity—this High Court decision on Brexit simply enforces the parliamentary sovereignty that has long been part of British governing—but these histories have a much more recent politics. Instead of telling stories focused on judges, we would all do well to notice the longer histories and more complicated reasons for decisions.

*The author thanks Emily Flores, Maya Sterett and Christine Weiss for comments on an earlier draft.

Suggested Citation: Susan Sterett, Brexit: Court Decisions Reopen Arguments, Int’l J. Const. L. Blog, Nov. 12, 2016, at: http://www.iconnectblog.com/2016/11/brexit-court-decisions-reopen-arguments

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Published on November 12, 2016
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  1. […] Susan Sterett, Brexit: Court Decisions Reopen Arguments, Int’l J. Const. L. Blog, Nov. 12, 2016, at: http://www.iconnectblog.com/2016/11/brexit-court-decisions-reopen-arguments […]

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