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Brexit, Political Power and the Role of the Courts

Brexit, Political Power and the Role of the Courts

On Thursday 23 June 2016 the Brexit polls closed and marked the beginning of the UK's withdrawal from the European Union (EU).

Brexit has triggered a series of financial, cultural and political waves which will affect the UK and Europe for a long time to come. However, from a legal perspective, it has also given rise to a silent standoff between two branches of the UK government.


Although Brexit was a political movement, after the referendum closed the movement became reliant on law changes to ratify the decision by UK's citizens to leave the EU. This law change had to take place before the withdrawal process could begin.

When changing laws, UK's Parliament must follow set democratic processes in order to avoid an abuse of Parliamentary power. If an abuse of Parliamentary power does arise, the Courts may intervene. In effect, the Courts can stop Parliament from enacting laws which the Courts deem unsafe for constitutional reasons. The same is true in New Zealand.

For Brexit, following the closing of the referendum, Parliament attempted to begin the withdrawal from the EU with immediate effect using prerogative power vested in the Prime Minister, Theresa May. The Courts intervened, forcing Parliament to follow due process in enacting the necessary laws.

The ultimate result was no more than a pause in Parliamentary processes; the proposed bills passed into law by way of significant majority very shortly after the Court's decision. However, the Court's intervention provides us with an example of the importance of the Court's role as a guard against abuses of Parliamentary power.

Interestingly, we had a similar stand off in New Zealand during the 1980s. In that instance steps by a Muldoon-led Parliament to pass laws were criticised by the Courts, but ultimately Parliament pushed the relevant laws through giving rise to a similar result to that in Brexit, but without Muldoon's Parliament showing the same respect for the Court's decisions.

The stand off

To initiate the UK's exit from the EU, the UK needed to invoke Article 50 of the Treaty of Lisbon. The formal process for the UK to invoke Article 50 is passing a piece of legislation in Parliament. Doing so ordinarily requires a set of Parliamentary steps, consultation, debates and votes.

Throughout the months following the Brexit referendum, Theresa May stated she would trigger Article 50 by using her prerogative power (a power allowing a Prime Minister to bypass Parliamentary processes in national interest). However, prerogative power has not traditionally extended to decisions requiring a change in domestic law and the suggestion that such a power be wielded in respect of Brexit upset the Scottish and Welsh Governments and leaders in Northern Ireland (Challengers).

The Challengers, whose constituents overwhelmingly voted "stay," served the English government (the Crown) with High Court proceedings claiming that triggering Article 50 without a vote from Parliament was unconstitutional. The Challengers also believed that Parliament should let the Scottish, Welsh and Irish Governments vote when determining whether the Brexit Bill should pass.

The High Court heard the case and on 7 November 2016 issued a judgement that ruled in the favour of the Challengers. It stated that the use of prerogative power to trigger Article 50 was unconstitutional as such a decision required a substantial and fundamental change in domestic law. The Crown appealed this decision to the Supreme Court which heard the case in December 2016. On 24 January 2017, the Supreme Court issued their judgement which supported the High Court's decision. Although this was a success for the Challengers, the Supreme Court also found that the Challengers would not be entitled to a vote.

On 1 February 2017, in conjunction with the Supreme Court ruling and without opposition by the Challengers, the Brexit Bill (all two lines of it) received overwhelming support in a landslide vote 498 MPs to 114 MPs. Theresa May was then free to invoke Article 50.

In Brexit, the Courts played an important role in upholding Parliamentary process. In New Zealand during the 1980s, our Courts likewise took action in the face of (in the Court's view) an abuse of Parliamentary process.

In our own stand off between two branches of Government, the Muldoon government commissioned the Clyde Dam and granted it water rights and the High Court overturned that decision. The High Court was particularly concerned about the impact on the landowners of the area.

However, where UK's Parliament followed the orders of its Courts in the case of Brexit, a Muldoon-led Parliament went ahead with the dam in the face of the High Court's decision. Muldoon appeared to then make a habit of ignoring the decisions of New Zealand's Courts, but the involvement of the Court in the affairs of Parliament demonstrates that the Courts in New Zealand (as they do in the UK) play an essential role safeguarding us from abuses of Parliamentary power.


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