A recent legal case has just made Brexit all the more complicated for British lawmakers. After the public referendum, Prime Minister Theresa May intended to begin the process to withdraw Great Britain from the European Union. However, Parliament claims that the executive branch does not have the power to begin this process alone – the legislative branch must also vote on Brexit. Britain’s Constitution is unclear regarding the balance of powers between the legislative and executive branches in foreign policy affairs. Did Parliament legislate Britain’s entry into the ECC (EU’s predecessor)? Or did Parliament enforce the actions and decisions of the leader of the executive branch at the time?
The legality is complicated and certainly thrilling for those interested in international law. Whether it is the legislative or executive branch, the end result will most likely be the same – the voice of the people was very clear on the matter. But this legal battle may delay Britain’s withdrawal for many years.
It is interesting to compare the British model of foreign policy to the American model. In 2006-08, the American people elected strongly anti-war Democrats to both the House and the Senate, giving the Democratic party a majority in both houses. President Bush sent an additional surge of troops to Iraq at the same time. Despite a clear public mandate against the war, the executive branch continued to follow the foreign policy path it had already chosen. Congress – despite being controlled by a strong anti-war faction – was essentially powerless to stop the executive.
When the voice of the people have made a course of action clear, are their leaders under an obligation to follow them even when not constrained by law? Who should have the ultimate voice in foreign policy – the legislative or the executive? Why is the Brexit legal case important when both the Prime Minister and Parliament will likely follow the same course of action?