Friday, November 4, 2016

High Court Doesn’t Care If The People Want Brexit

By Noah Feldman
The Bloomberg View
November 4, 2016

Striking a blow against popular sovereignty by referendum, the U.K. High Court of Justice held Thursday that Britain can’t leave the European Union without an act of Parliament. Because British constitutional thought is so different from its U.S. and European equivalents, the decision will be difficult for the U.K.’s Supreme Court to overturn. It’s now much more likely than not that the courts will save Britain from its ill-conceived Brexit vote. The people may have spoken -- but the court said that wasn’t good enough.

The remarkable decision was reached under the British constitution, which the court pointed out “is not to be found entirely in a written document.” That’s an understatement. Some of U.K. constitutional law comes in the form of statutes, and some of it, as the court said, in the form of “fundamental rules of law” that are “recognized by both Parliament and the courts.” The High Court found the fundamental constitutional principle that decided the case in an academic treatise first published in 1885 and last edited by the author in 1915: A.V. Dicey’s “An Introduction to the Study of the Law of the Constitution.”

The wildly influential Dicey, in his formulation of the principle of parliamentary sovereignty, said, “No person or body is recognized by the law … as having a right to override or set aside the legislation of Parliament.”

Because the Brexit vote was a popular referendum, there is at present no parliamentary act requiring the country to leave the European Union. The court was using Dicey to say that the public lacks the constitutional power to override Parliament, which passed a law in 1972 bringing the U.K. under European law.

The British government sought to argue that it could exercise the “prerogative powers” of the Crown -- a cousin of inherent executive power under the U.S. Constitution -- to fulfill the will of the British people. The court quoted Dicey to refute that view.

In what can only be described as the punchline of the opinion, the court quoted Dicey as saying that “the judges know nothing about any will of the people except insofar as that will is expressed by an act of Parliament.”

It’s remarkable that in 2016, a court would in effect overturn a national referendum by denying that it represented the will of the people.

Seen from the standpoint of modern democratic theory, Dicey’s century-old dictum sounds obsolete, to say the least. The “will of the people” is the basic idea upon which democracy is based.

The U.S. Constitution, which did much to spread the idea of popular sovereignty worldwide, actually begins with the words “We the People.” It was ratified not by Congress or by the state legislatures, but by specially chosen state ratifying conventions, which James Madison favored precisely because he wanted to avoid the possibility that the legislatures, rather than the people themselves, would be considered sovereign.

Not so in Britain. By saying that judges “know nothing of any will of the people” outside Parliament, the court was directly rejecting the idea that the people are the kind of sovereign that can act directly.

This holding strongly increases the likelihood that the U.K.’s Supreme Court will uphold the High Court decision. The High Court presented its holding as simple and straightforward, almost a mechanistic application of the universally accepted principle of parliamentary sovereignty. Almost the only course of action left for the Supreme Court would be to say that it was altering this fundamental ideal -- which the British system does not recognize as a power of the courts at all.

The upshot is that the public may have spoken, but the public isn’t sovereign in the sense of having the final word. Parliament is. The courts are stepping in to save Britain from itself -- although, of course, Parliament could still vote to leave the EU.

What makes the court’s surprising decision all the more noteworthy is that it doesn’t rely upon a clearly written, popularly enacted constitutional text. In the U.S., we know that a national referendum couldn’t get us out of a treaty, because the Constitution specifies the process for the president to make treaties with the advice and consent of the Senate. But in the U.K., there was no single document or text specifying that the referendum couldn’t do its work.

The High Court therefore could legitimately be criticized as making a power grab by interpreting the constitutional tradition as insensitive to the will of the people expressed in referendum. According to its convention, the court presented itself as a passive actor reporting on the meaning of the British constitution.

In practice, however, this is a case of judicial activism. The court is blocking the course of action dictated by a majority of the voting public and urged by a government formed by parliamentary majority.

Judicial activism in which the courts use the constitution to block government action isn’t a British invention but an American one. If it ends up saving the world from Brexit, the British will have cause for gratitude to their once rebellious constitutional stepchildren.

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