Brexit was back in the news yesterday as the High Court handed down a decision that could force the UK government to bring the question of whether to invoke Article 50 before the full Parliament. I am on shaky grounds here writing about this because the case deals with British constitutional principles that are a bit over my head. I write only to clarify something students in some of my courses have heard me say in class: courts in England do not have the final say on what the British Constitution says.
To understand this case and how the question of law facing the court does not contradict what I have said in class, one must first realize that the government was trying to make a decision on its own without first getting approval from Parliament. Put differently, Parliament was not being allowed to have any say on the issue. Furthermore, the constitutional principle being applied by the government was one created by "convention" (basically tradition) whereby the executive (formerly the King) can make decisions under certain circumstances without first getting the approval of Parliament (See this BBC piece for a bit more context).
As the High Court decision notes, "the most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses." So far so good. The Court then goes on to note that no constitutional convention allows the government to override legislation passed by Parliament. Clearly this is also true. Finally, the Court claims that the decision to exit the EU would override legislation passed by Parliament in 1972 that basically allowed EU law to be incorporated into and ultimately in most case be superior to laws passed by Parliament. The court notes that both parties to this case agreed that the the question of whether the government is violating parliamentary sovereignty is one for the courts.
In short, what I said in class still stands: Parliament has the final say over whether the laws it passes are constitutional. However, the courts can weigh in when the claim is that the government is exercising a constitutional convention in a manner that violates concepts of parliamentary sovereignty. At least I think that is what the court is saying.
