Brexit gives a nudge to ‘separation of powers’ in Britain

“Take back control.”

That was the boldface promise of Brexit – the return of Britain’s sovereign powers from the faceless bureaucrats of the European Union to the national capital, London.

Leaving the EU, campaigners said, would restore the primacy of United Kingdom law and domestic courts in a country proud of its legal traditions and democratic institutions.

But who exactly has control of which sovereign powers in Britain’s political system? The Brexit saga itself is changing the constitutional landscape, observers say, as judges are increasingly called upon to step into the political arena and adjudicate contentious issues.

“What you’re seeing is an evolution of the separation of powers in the U.K.” between the government, Parliament, and the courts, says Catherine Barnard, a law professor at Cambridge University.

That was underlined by a landmark Supreme Court ruling six weeks ago setting a precedent for how Britain is governed. Prime Minister Boris Johnson had made a bold power play, suspending Parliament for five weeks, ostensibly to reset the legislative calendar. Critics challenged that prorogation in the courts and when the case was heard by the Supreme Court, it ruled unanimously against the government.

Mr. Johnson had acted unlawfully, the court ruled, because Parliament had been stymied in its role of holding the government to account ahead of its Oct. 31 deadline to leave the EU. The next day, members of Parliament were back at work.

Who are you calling an enemy of the people?

For legal scholars accustomed to judges tiptoeing cautiously around political matters, it was an unprecedentedly bold move. Britain has no equivalent of the 1803 Marbury v. Madison U.S. Supreme Court case, which established judicial review of laws and actions. U.K. courts cannot strike down acts of Parliament, as the U.S. Supreme Court can do on grounds of constitutional violation.

But the new ruling, coming on top of a previous Brexit-related case in 2016, has thrust Britain’s top judges into a new and politically treacherous role as de facto guardians of the constitutional order, even as Brexit throws up fresh complications for lawmakers.

“The Supreme Court has in some ways emerged as a constitutional court,” says Jeff King, a professor of law at University College, London. “It recognizes that it has a central role to play in identifying and upholding the legal constitution in a way the courts were not open to doing until relatively recently.”

The British Supreme Court is only 10 years old, one of a series of constitutional reforms undertaken when Tony Blair was prime minister. Before its inauguration, the highest court of appeal in the U.K. was in the House of Lords, the unelected upper house. The Law Lords sat as legislators and judges, straddling two branches of government.

The Supreme Court sits on the opposite side of a public square from Parliament, symbolizing the separation of powers. Judges are apolitical and appointed by Queen Elizabeth II, on the advice of her prime minister.

Before Brexit, few people paid attention to the court or its judges, but their anonymity has now been scoured away. “All the judges are acutely conscious of their role as nonelected officials,” says Professor Barnard.

In November 2016, a pro-Brexit tabloid newspaper published the photos of three Supreme Court judges on its front page over a headline, “Enemies of the People.” The judges had joined a majority opinion that then-Prime Minister Theresa May had to seek parliamentary approval before starting the formal withdrawal from the EU, giving members of Parliament a much greater say in the process.

Both that ruling and the prorogation case have played into a populist narrative in the pro-Brexit camp that elites were determined to thwart a democratic mandate.

From sidestepping to overstepping?

The legal debate, however, turns on how the Supreme Court understands the prerogative powers of the Crown, as exercised by the prime minister and his or her cabinet, with regard to Parliament.

Power struggles between British executives and legislatures aren’t new; a long and bloody dispute in the 17th century ended in 1688 with a new balance of powers under a constitutional monarch. Since then, Parliament has been sovereign, and the governments it elects are subject to legal constraints.

The Supreme Court based its ruling on the violation of two legal principles, firstly that Parliament must not be prevented from exercising its sovereignty, and secondly that lawmakers had the right to scrutinize the executive at a critical juncture in the Brexit process.

“The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification,” said the court’s president, Lady Hale.

Critics of the court say it overstepped its constitutional duties and argue that prorogation is a matter for members of Parliament, as representatives of the people, to decide, not unelected judges. By assessing the government’s reasons for prorogation, an inherently political act, the Supreme Court has extended judicial power.

“It’s a political evaluation that the court is not in a position to do,” complains Richard Ekins, a law professor at Oxford University. “What it does is to judicialize what should otherwise be, and has otherwise been, a political constitution.”

Dr. Ekins, who directs the Judicial Power Project at Policy Exchange, a conservative think tank in London, warns that the Supreme Court has opened the door to more such lawsuits on a broader range of issues.

Other controversial actions by the executive, whether in foreign or defense affairs, may in the future face judicial review, he worries. “There is a risk of more litigation in the spirit of the prorogation judgment.”

Professor King welcomes the court’s “innovation” in striking down Mr. Johnson’s prorogation, but he agrees that it could spark more politically sensitive lawsuits.

“There was a time in the past,” he says, “when people might say, ‘well, that might sound like a good argument in law but the courts won’t go near it.’ Now they will go near it if it’s a good argument in law.”