It is a sign of a healthy and functioning democracy that the exercise of governmental power can be challenged properly through the courts.
Contrary to the screaming headlines in some British newspapers today, yesterday’s High Court decision did not thwart the will of 17 million Brexit voters. The High Court did not decide the EU referendum “did not count”.
In a carefully considered and compelling judgment, some of Britain’s most senior and respected judges quietly restored supremacy to the centuries-old tradition of parliamentary sovereignty in this country. In short, yesterday’s judgment protects our democracy, rather than betrays or undermines it.
It is a powerful constitutional principle that the government of the day cannot alter the law of the land by the use of the prerogative power. There are limits on prerogative power, which merely means the power of the executive to act alone, for good reason. No government – of any political persuasion – can confer or remove rights without Parliamentary intervention. The court unanimously safeguarded this constitutional bedrock of our democracy.
Many of the government’s submissions to the court had a very weak foundation, and the court’s judgment reflects this. The claimants powerfully argued that the removal of fundamental and important rights could only be done with Parliament’s authority. At no stage did the claimants seek to argue that those rights could not be removed; instead they argued that it must be Parliament who took that decision.
The government was backed into a corner by its own politically expedient concession that Article 50 was irreversible and unconditional. That concession meant that, once notification was given, it would directly lead to the rights of British citizens being removed within two years of the trigger date. Even if Parliament would be “involved” at the conclusion of those two years, it would be too late for that consideration to be meaningful.
The judgment was measured and apolitical but critical of the government’s arguments, finding that it had “glossed over” important constitutional principles and that its submissions were “divorced from reality” on the impact of notification on the rights of many British citizens, such as those working and living across the EU. At a basic level of constitutional law and principle, the Court found that the government’s arguments were flawed. No Act of Parliament expressly gave the government the power to dismantle fundamental rights granted by Parliament to British citizens.
The rule of law exists to protect all citizens from the overreach of constitutional power. Whether Leave or Remain, we are fortunate to have an independent judiciary which is strong and principled enough to be able to stand up to government when it unlawfully seeks to extends its powers without Parliamentary scrutiny (and indeed to rise above populist and abusive headlines). Our parliamentary democracy carries at its heart a requirement that only Parliament can confer rights on individuals or deprive individuals of rights. This lies at the very heart of this judgment and I do not consider the government’s prospects of appeal to be strong.
Those who dismiss the judgment as elitist should read it instead. Rather than berating the rule of law and whipping up public opinion with unacceptable abuse against judges and claimants, those concerned that this court ruling could delay Brexit should be asking the Prime Minister to put her plans before Parliament at the earliest opportunity.
Whatever Brexit may mean to the Prime Minister, she is not entitled to decide its shape, timing and form without putting those plans openly to Parliament. Virtually every British citizen will be impacted by those plans. Many people’s lives and livelihoods are at stake. It is surprising that anyone in this democratic country should seek to stop Parliament demanding accountability from our government. Especially on an issue of this fundamental importance.
This article was written by human rights and employment barrister and writer, Schona Jolly of Cloisters Chambers.
An excellent article, right on target. Sadly, the advice to the Mail et al to read the judgement may go unheeded; why think when you can rant?
The dictatorship of the judges!
Excellent piece.
One of the arguments for Brexit was that we wanted to regain the sovereignty of parliament which had been “lost to Brussels”. Is the daily mail arguing that the vote “trumps” Parliament and the rule of law?
Outstanding analysis. Sadly, I fear that in today’s post-factual political landscape, it will fall on deaf ears.
I have read what passes for the “judgment” to date and it seems to me to be a flawed argument, although I think that the government’s arguments were equally flawed – in particular the absurd concession that once Article 50 is triggered it is irreversible. That is plainly not the case. There is a number of ways the process can be interrupted or negated – (1) the period of 2 years can be extended so it is wrong to treat it as an absolute limit; (2) any “exit deal” that is finally agreed between the UK government and the EU Commission has to be ratified by ALL of the other the member states, which is a huge potential flashpoint; and (3) the exit deal also has to be ratified by the European Parliament, which is another huge flash point; and (4) the UK government could, if it wanted (although not without being in conflict with the National Referendum) announce part way through the Article 50 process that it is withdrawing its notification to the EU Commission. That would terminate the exit process. However, leaving aside the question of the alleged “irreversibility” of the Article 50 notification, in my (humble) view the problem with the CA decision is that it appears to make no distinction between the fact that the arguments concern 2 entirely different things – namely (1) the Treaty on the European Union, and (2) the European Communities Act 1972. It is an important statement of the obvious that one is a treaty and the other is an Act of Parliament. They are fundamentally different things and each has its own separate legal status and legal system of operation. Furthermore, the Treaty did not exist at the time when the 1972 Act was legislated. In 1972 there was no mechanism for any member state to leave what was then the EEC. Under the British constitution as it currently exists, International Treaties are exclusively matters for HM Government acting through the Royal Prerogative. Parliament has no role at all in negotiating or making Treaties. This fact is actually confirmed on the UK Parliament website itself (see “Fact Sheet P14 Procedure Series” available on the UK Parliament website). That process has been slightly altered by the Treaties and Constitutional Reform and Governance Act (effective November 2010) which requires all Treaties that require ratification, approval and notification to be laid before Parliament by a Minister of State and there is a 21 day period during which Parliament can either do nothing (ratification by default) or can notify its disapproval of the Treaty, in which case the procedure under that Act is triggered. However, the ratification process is irrelevant to Article 50 because the Treaty on the European Union (also known as the Maastricht Treaty) already exists and was negotiated and accepted by the UK Government in 1992. The notification under Article 50 is not itself a treaty so does not fall under the TCRGA process. Therefore there is nothing for Parliament to ratify as regards the Article 50 mechanism. On the other hand, under the UK constitution Parliament is the supreme law making authority. These fundamental distinctions between the EU Treaty and the 1972 Act and the very different legal systems that apply to each of them may seem semantic but they provide the (in my view) correct answer to the “Article 50” debate – which is as follows. Article 50 provides each member state (ie the government of each member state) with the mechanism to notify the European Union Commission (ie the government of the EU) that it intends to leave the European Union and to commence inter-governmental negotiations on the details of such an exit. It is purely a notification and negotiation process under International Treaty law. That exit process and those exit negotiations are inherently matters of Treaty law. It is a matter for HM Government to actually notify the European Commission of its intention to exit the European Union and commence exit negotiations and the government has been mandated to do so by the National Referendum. It is also entirely a matter for HM Government and the Royal Prerogative to negotiate the exit policies because those policies will have to be finalised through a new Treaty or a series of new Treaties. However, in order for the UK to actually finally leave the European Union and cut all legal ties and obligations with the EU, the European Communities Act 1972 will have to be repealed by Parliament and replaced with a new Act. That process can only take place once the exit negotiations have been finalised and the final “exit deal” is completely agreed between the UK government and the European Commission. And at that point any new Treaties will be subject to the TCRGA. It is at that point that the UK Parliament has the final controlling power and function because if the UK Parliament as constituted at that point does not accept the exit deal then it can refuse to repeal the 1972 Act and refuse to ratify any new Treaties with the EU, or it can force changes to the new Bill or new Treaties that would rewrite the “exit deal”.
A fantastic and balanced article. Insightful and accepting of the legal realities of parliamentary process.
I have to say that John Stenhouse, in his quote, has covered the debate in a much more concise way than the actual article.
One of the great maxims of our legal system is that evidence should be “the truth, the wole truth, and…..”. Schona Jolly’s article meets the first of these but does it meet the second?
First, you cannot have a better outworking of ‘democracy’ than a referendum. And the referendum showed a democratic majority in favour of leaving the EU. The High Court may not have explicitly decided “the EU referendum ‘did not count'” as Jolly says. But given the current Parliamentary situation with the risk that Parliament may thwart the wishes of the British people that could well be the practical consequence of the decision. And I suspect that it was that perception that underlay the headlines.
Second, I would like Jolly to have addressed another bulwark of our legal system, namely the avoidance of any perceived conflict of interest on the part of judges. The interests of all three High Court judges and four of the Supremem Court judges have been well documented in the press. To me, those interests are no less than the interests of Dames Butler-Sloss and Fiona Woolf which debarred them from the chairmanship of the Independent Inquiry into Child Sexual Abuse. It is perception that matters which is why the rules exist. And I would like to have seen that point addressed.
There will be far reaching consequences after judges entered the political arena. It’s a matter of trust. The idea of the independent judge has diminished. What has emerged is a sense of vested interest, do they actually think this hasn’t been noted. Slow hand clapping by some judges of a government minister, comments being made about a case still to go before the supreme court. What are they thinking.
Although I am against Brexit, the decision of the British people (ultimate democracy) was directed to the Government and should not practically involve Parliament at this stage. But when negotiations are sufficiently advanced, then let Parliament (and us all) see what has been achieved and we can make our positions known.
Sadly Parliament has a poor record on big issues in recent years (the Iraq and Syrian conflicts just being examples) and is hardly in a position to dictate negotiating tactics.
Further I believe that the judges, though no doubt well-meaning, should have recognised this position and formulated their response accordingly. Otherwise they were bound to be accused of interference.
Reading the majority of the above comments from individuals who want to use the prerogative powers to exit is quite simply put, irresponsible and does not reflect in any way shape or form what parliament was built upon. First of all, look to HISTORY. http://www.britroyals.com/kings.asp?id=william3
So, the current expectation is that we ignore the Bill of Rights (1689)? It is by convention that the current Queen signs. Nigel Farage and his clan have been utterly irresponsible. The referendum was ‘advisory’. So many British people have no idea or understanding of how their parliament actually works and the different functions of each branch. What happened was called judicial review and the outcome is as it should be. The current government was acting ultra vires and need to be stopped.
What’s the nastiest thing about Article 50 jokes the timing.