Is Brexit a Case of Parliamentary Sovereignty Vs Judicial Review?

In a referendum, the people of the United Kingdom (UK) voted to leave the European Union. The terms of Britain’s departure are part of an ongoing public, governmental and parliamentary debate; these terms have also been the subject of judicial review. In trying to understand the role of judicial review in Brexit (the British exit from the European Union), this paper examines the role of the UK´s Supreme Court. Particularly, it analyses the situation where judicial opinion has been expressed on an issue where citizens had already expressed theirs -through a referendum - prompting a public discussion on the legitimacy of the Supreme Court, and on its members, to conduct such a review. Moreover, the paper analyses judicial review as an opinion on a dispute regarding the division of powers: whether the government has the authority to give notice of the U.K.’s withdrawal from the EU as in the terms of Article 50 of the Lisbon Treaty (Treaty on European Union) without prior legislation passed by Parliament and assented to by the Monarch. This paper does not analyse the arguments of the Supreme Court on the matter of the authority of provincial governments (Scotland, Wales and Northern Ireland) with regards to Brexit. Empirically, the British separation from the EU presents useful evidence to understand the counter-majoritarian function judicial review has in the British polity; similarly, it presents evidence useful to revisit the debate on the democratic legitimacy of judges conducting the function of judicial review. The paper is based on a qualitative analysis of parliamentary debates and judicial rulings, as well as on-line version of newspapers and relevant documents.