By James O’Neill*
Last week the UK Supreme Court (formerly the House of Lords) heard argument on the appeal by the Secretary of State for Exiting the European Union from the unanimous decision of the High Court in favour of the applicant Gina Miller.
That High Court decision brought howls of outrage from the tabloid press in particular, one even having a banner headline “The Judges Versus the People.” Irrelevant and offensive personal slurs were made against the three Judges involved.
Lost in all the media hubbub was a key point that is of interest and concern to more than just constitutional lawyers, but rather goes to the heart of what it means to be a democracy in the 21st century.
A brief recap of the pre-history is useful. In 2015, in a bid to assuage what many consider to be legitimate concerns over “rule from Brussels” then Prime Minister David Cameron agreed to a referendum on whether the UK should stay in the EU or not. It is a reasonable assumption that Cameron expected to win and the UK to then stay in the EU.
The referendum was duly held in June 2016 and of those who voted (about two thirds of the eligible number), 52% voted for the UK to leave the EU (“Brexit”). To say that Cameron and the “Remain” supporters were shocked at the result is probably an understatement.
Cameron resigned and was replaced by Therese May who immediately announced that the government would initiate the leave process by invoking Article 50 of the EU Treaty.
This is where the legal argument began. The May government intended to use its prerogative powers to initiate and complete the process of exiting the EU. The short explanation of the prerogative power is that it enables the Crown (the executive) to act without recourse to Parliament. For very good reasons that power is highly restricted.
Enter the lead claimant (plaintiff) Gina Miller. In the High court Ms Miller’s counsel argued that it was a fundamental principle of English law that the Crown cannot use its prerogative powers to abrogate rights under the laws of the UK.
When the UK joined the EU in 1973 it did so pursuant to an Act of Parliament. UK citizens acquired a raft of rights by virtue of EU membership, including for example the right to live and work in any other EU country; to come under the umbrella of European Human Rights law; and access to the European supranational courts to enforce their various rights. These are not trivial matters. They have been widely exercised by UK citizens over the past 43 years. The loss of those various rights would represent a material loss of rights and benefits.
The three very senior Judges who heard Gina Miller’s application to stop the purported exercise of the prerogative power in the manner the government sought to do had little trouble accepting her counsel’s argument.
That decision came as no surprise to constitutional lawyers or indeed anyone with a grasp of English history. It has been the law of England for the last 400 years that any changes to the law must be via Parliament.
The media, as noted above, presented the decision as the Judges ignoring the wishes of the people insofar as that wish was represented in the referendum result. It should be added that a referendum has no binding force in English law, and as was pointed out in the judgment, the wording of the referendum question itself was so general it could not be directive in any case.
The media also chose to ignore another fundamental principle. As the leading constitutional textbook expresses it: “The Judges know nothing about any will of the people except insofar as that will is expressed by and Act of Parliament.” (Dicey: An Introduction to the Law of the Constitution).
That principle, which is at the heart of representative government, may be read in conjunction with another tenet that is fundamental to the maintenance of a democratic law based society, and that is that the Judges must apply the law regardless of the wishes of any particular group: fiat justitia, ruat caelum (let justice be done though the heavens fall).
Those, like the msm who railed against the judgment and the Judges personally, whether they appreciate it or not, are advancing a very dangerous argument. In essence, that argument is that a view has been expressed through a referendum, and not only must that view be followed, one can put aside the role of parliament and let the executive proceed without recourse to proper parliamentary procedure.
That is why I say the argument is dangerous. Enormous power already resides in executive government (our illegal entry into the Syrian war but one example of the abuse that is possible).
To cast aside one of the few effective constraints on that power, that of parliament’s ability to hold the executive to account, is a major step on a very slippery path of ceasing to be a democracy in any meaningful sense of the word.
The Judges in both the High and the Supreme Courts were careful to say that they were not making a ruling on the merits or otherwise of Brexit. They were concerned solely with the lawfulness of the process under which the decision making process should proceed.
I would be astonished if the Secretary of State’s appeal was successful. That would mark a major departure from precedent. That departure would not be in a desirable direction.
We all need a legal system that protects us, even though on occasion “the heavens fall.” The msm have failed yet again to uphold those fundamental principles and they thereby contribute to the diminution of our democracy.
* Barrister at Law. He may be contacted at firstname.lastname@example.org