Home World Politics Lessons From Brexit: What Really Is at Stake

Lessons From Brexit: What Really Is at Stake

9

brexit

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 joneill@qldbar.asn.au

SHARE

9 COMMENTS

  1. James, as your essay is truly beaut, I don’t want to intrude with a point of confusion.
    However, I must say I cannot grasp the idea of “the Crown.” You have now made me concentrate on it in terms of Britain. I think that in Oz it is very tenuous.

    When I was sitting in the courtroom in Sydney for the Amirah Droudis trial, I was absolutely astonished to see, above the judge’s head, the banner “Honi soit qui mal y pense.”
    Maybe the monarch’s coat of arms is present in every court in Australia, and possibly I just never saw it, but this one was done in the form of a sculpture and would be hard to miss.

    James, if the idea of “the crown” makes sense to you and if you care to explain it please do. If not, well, don’t.

    • Mary, as a former? American you can be forgiven your confusion. The “Crown” in the bad old days meant literally that. The King’s word/view was paramount and there was no real challenge to it. In the 17th century the British moved away from that in a series of moves, beginning with the courts and reaching its apogee with the removal of King Charles’ the first’s head in 1648.
      Nowadays, the term the “Crown” is simply shorthand for the executive government, although the usage persists in, for example, the criminal Courts, when the prosecution is in the name of the monarch: e.g.. R v Smith etc. although responsibility for the prosecution is entirely in the hands of agencies of the State.
      What I perceived as the danger is the increasing concentration of power by the executive. Even parliament has lost much of their capacity to restrain because the executive comes from the governing party and the Whip system means that the members of parliament rarely stray from the executive’s line.
      One of the things that is interesting about the Brexit process is that the majority of MPs (and this crosses party lines) are against Brexit. At this stage I would be reluctant to bet on Brexit actually happening.

  2. Thank you James. A solid, clear explanation, one that will no doubt be lost in the soup of post-truth emotional reactivity and clickbait masquerading as moral outrage, which is the stock-in-trade of modern media.

  3. Very interesting, your last two sentences. Hmmm. So why do they obey whips? Why don’t they whip the whips? Ha Ha.

    In US we never had party discipline — other than voluntary type. And when i first came here I thought only Labor had it. It sure makes a mockery of representatve government.

    James, I have almost the opposite wish from you re “the Crown.” I wish the G-G would do his/her job. In days of Olde — say in Good Queen Bess’s time — the king was another source of people power — at least potentially a friend to the weak. By the way, why do we never hear of Equity anymore?

    I wonder if Equity could help Martin Bryant or Jahar Tsarnaev. Recall Blackstone said (re the pardon power) “The queen has a court of equity in her bosom” Or words to that effect.

    https://www.ag.gov.au/CrimeAndCorruption/FederalOffenders/Pages/Royalprerogativeofmercyandreferralofmatterstostateandterritorycourts.aspx

    • James — whoops, when I said “your last two sentences,” I was referring to your reply to me, below. And thanks for it.

      Now I change my question. What was the legality of the UK joining the EU in the first place? What if it were a trick on the people, or on Parliament.
      “Jim and Gerry” show how The Great War was introduced as a trick on the House of Commons, in their book Hidden History,

      I appreciate your point that some Henglishmen gained a “right” to live in and work in other countries. (Surely they did not gain a right to human rights by the existence of a “court” outside their own nation. Eeks!)

      But even if they do like the right to swan around in southern France, on what terms did they get that right? We think of the TPP (or the old MAI) as something Australia might “join” — but how can one’s country join an entity that is not transparent?

      Personally I feel that the video of Julie Bishop and Kevin Rudd (an ex-shadow-foreign-minister) doing lawn bowls is about the only thing I understand about Oz foreign policy.

    • Golly, Berry. Your link brought me to a piece on censorship in Germany. Someone was fined about 10K euros for calling Muslims “cattle.” This is under the incitement law. (Vaguely mirrored in Oz Human Rights “law.”) The writer of the Spiked-online.com article said:

      “The support for censorship has always been particularly pronounced among members of the German liberal-left. Indeed, one of the harshest amendments to Volksverhetzung [the incitement law] was made in 2005 under the coalition government of the Social Democratic Party (SPD) and the Greens. A fourth paragraph was added to the law, criminalising ‘whoever approves of, glorifies or justifies the violent and despotic rule of the National Socialists in a way that disturbs the public peace in a manner that violates the dignity of the victims’.”

      Fabulous.

C'mon Leave a Reply, Debate and Add to the Discussion