The UK High Court held that the government does not have the power to trigger Brexit with parliamentary consultation. The backlash against the decision has revealed a serious undermining of institutions that have safeguarded the liberty of the British people.
The independent judiciary are not public’s enemy. I can’t quite believe I’m having to write those words but it’s the lowest point yet of British public discourse in a year that has taken on the challenge of plumbing the void with unparalleled vigour. Those who vilified and cried foul of the High Court’s ruling sadly neither understand nor uphold Britain’s democratic principles, instead they have entered into the most dangerous game of inciting anger and mistrust against our ancient and hallowed democratic institutions.
While I have no doubt that you, dear reader, understand the complex interplay of parliamentary sovereignty, royal prerogative, and rule of law; our ministers and newspaper editors seem in desperate need of a quick recap of exactly what is in dispute so for their benefit here’s exactly what went down in courtroom four of the Royal Court’s of Justice.
The UK’s constitution is uncodified, instead it is drawn from a collection of statutes, common law precedent, and conventions, amongst other sources; it’s therefore a sprawling living body of law rather than one single source document. This only works because we recognise the power of the parliament, to be precise the Crown-in-Parliament; this leads to the phrase of parliamentary sovereignty which articulates that the highest form of law are Acts of Parliament. This, despite leavers claims of the EU suppressing our sovereignty, has been the established constitutional settlement for hundreds of years, and allows our democracy to be flexible and adaptable to modern challenges.
The EU is a treaty organisation; normally in the UK, the power to enter and exit treaties resides with the government through the royal prerogative, which are ancient residual powers once used by the monarch and but exercised now by ministers. However the EU is a unique treaty organisation which confers rights upon the citizens of its member states. In order to achieve this Parliament passed The European Communities Act 1972 which was passed prior to the treaty taking us into the EU being ratified.
Here is the crucial point: royal prerogative powers cannot disapply acts of parliament, where those acts confer rights on the British people this is even more true. The Government broadly argued that The European Union Referendum Act 2015 authorised the government to act on the results of the 23rd June, which they humorously call an overwhelming mandate despite a slight 51.89% majority or 37% of the entire electorate. The problem is that, despite the government’s belief in legal hocus pocus, the referendum act explicitly stated that it was a non-binding advisory affair. The government agreed in 2010 in a response to an inquiry by the House of Lords that referendums cannot be binding in the UK such a law would be an anathema to hundreds of years of British constitutional jurisprudence perhaps broadly described as a Burkean approach. The only exception was the referendum on the alternative vote system which clearly stated it was binding as it would be untenable to have Parliament decide on how it is made up.
"The UK’s constitution is uncodified, instead it is drawn from a collection of statutes, common law precedent, and conventions, amongst other sources; it’s therefore a sprawling living body of law rather than one single source document. This only works because we recognise the power of the parliament, to be precise the Crown-in-Parliament; this leads to the phrase of parliamentary sovereignty which articulates that the highest form of law are Acts of Parliament."
So if the government were to trigger article 50 it can no longer guarantee that rights conferred under the 1972 act of parliament would continue to be available to UK citizens, they would therefore be undermining the statute which is the basis for the court’s devastating ruling against the government. The government’s insistence that the parliament has already had it’s say in passing the referendum act is one of the most facile legal arguments in recent memory, and betrays a total ignorance of how our laws work, a worrying thing to say about your government. If these are the government’s arguments they would better spend their time drafting a bill rather than appealing to the Supreme Court where they will almost certainly lose.
What does this all mean for Brexit then? Realistically this ruling is speed bump in the road to triggering article 50, it’ll require a bill to be put before both houses which inevitably get through. Though expect a litany of amendments attached by rebel MPs and Peers who will want to both delay and limit a hard Brexit, however it will be done in a legally unquestionable manner. The judges are not therefore, as various cretins would have you believe, cancelling Brexit, overruling the will of the people, stealing our democracy, or in any other way illicitly frustrating the process. They are ensuring its legitimacy, Brexiteers as well as Remainers should be cheered by today’s ruling amongst all the noise and confusion it cuts a path on how to achieve Brexit in a legitimate manner. It should be celebrated that in our democracy people have the freedom to hold those in power to account, one of the campaigners might be a hedge fund manager but before the law everyone is equal.
The question I’ve then been asked by others is do MPs have a moral duty to vote either following the overall result of the referendum or the result in their individual constituencies. The simple answer is no. British parliamentary democracy has long understood that a representative democracy must not operate merely as the direct mouthpiece of the British electors will, simply parroting the populist view. Instead as Burke put it to the electorates of Bristol parliamentarians have a responsibility to listen to the views of their constituents but must make their own judgement as to what is in their constituents best interests. Indeed to sacrifice their judgement to the popular opinions is a betrayal of the trust that is bestowed in them upon being returned to parliament. The very fact that the referendum was advisory in nature further confirms this as the established principle of British parliamentary democracy. So while it may be politically expedient to follow popular opinion there is no democratic or moral duty for MPs to do so, whether any will have the political courage to do so is an entirely different matter.
"The judges are not therefore, as various cretins would have you believe, cancelling Brexit, overruling the will of the people, stealing our democracy, or in any other way illicitly frustrating the process. They are ensuring its legitimacy, Brexiteers as well as Remainers should be cheered by the High Court's ruling amongst all the noise and confusion it cuts a path on how to achieve Brexit in a legitimate manner."
We must return to what is the darkest but most salient matter in the aftermath of the High Court ruling, the unprecedented attack on the judiciary. It speaks volumes about 2016 that the usual rules of engagement have been completely reversed, often it is the right that staunchly defends the constitution and the left that attempts to subvert or alter it. Instead you have government ministers effectively attacking the judiciary and the principle of the rule of law, the editors of Fleet Street have gone a several vulgar steps further, while these might seem like easy political victories for an increasingly hard right government they lead to a slippery slope. Falsely spreading distrust against institutions that have spent hundreds of years safeguarding our freedoms erodes our democracy and damages everyone regardless of their political beliefs; a reason why Liz Truss, Lord Chancellor, has a sworn duty to protect the judiciary even if she does so feebly. If the government is looking to distract the public from the lack of real Brexit strategy then they should choose something less likely to bring the entire house of cards down in the meantime “methinks the lady doth protest too much.”
For the only thing that stands against the arbitrary and cruel power of tyranny is not simply something as flimsy as democracy, all too easily subject to the whims of demagogues, but the sturdy pillars of the rule of law, resolute and unyielding.