Daily Mail – “Enemies of the People”
The Daily Telegraph – “The Judges verses the People”,
Daily Express – “We Must Get Out Of The EU”
The court has spoken, and so have the newspapers.
I get where they’re coming from to a certain extent- I suppose it can be hard to get your head around on what basis the High Court was entitled to decide on the correct application of UK constitutional law if, like many, you believe we do not actually have a constitution and therefore see the decision simply as unforgivably political. So, to begin with, let me clear one thing up: the UK does indeed have a constitution, albeit unwritten, which the judiciary is duty bound to uphold. Next, let me explain why that matters.
The furore around the ruling of the High Court (that legally it is the role of Parliament to trigger Article 50) is a familiar story of suspicion of what many see as overly liberal judges thwarting UK democracy. This is a constant refrain with regards to human rights cases and accusations of judicial activism. However, the reaction to R(Miller) v Secretary of State for the European Union, to give it it’s proper title, is a striking example of how the public’s perspective of an ideal modern democracy clashes with the political reality of our constitution. For many, power derived from the people is the simplest and most appealing aspect of our constitutional democracy. Alongside this, however, should be the protection of fundamental human rights and the rule of law. It seems to me that it is the latter which is being neglected in much of the populist debate.
The rule of law, more than anything else, is the founding principle of British constitutionalism dating back to the Magna Carta when the barons insisted the king should be subject to the law of the land along with his subjects. With the odd hiccup, this principle endured throughout British history, seen in developments such as the doctrine of habeas corpus- the principle of no unlawful detention- and a sophisticated parliamentary process designed to keep a check on the legality of governmental action.
What this brief history lesson is supposed to illustrate is that the idea that governments should carry out their business subject to the law is not a novel one, nor should it be a controversial one. The exercise of arbitrary power, even with the support of the majority, is tantamount to mob rule and not in keeping with a modern democracy.
Returning to Article 50 and Brexit, it is of course worth pointing out the irony of those who fought in the Leave campaign for the return of sovereignty, yet are dismayed by the court upholding parliamentary sovereignty. In some ways, this demonstrates the confusion over who is sovereign. Many appear to be arguing that it is “the people”, when, in fact, it is more accurate to say it is the electorate through the medium of their representatives in parliament. That is how the people get what they want: demanding that their voice is heard by their MPs, through voting at the polls on election day, meeting and petitioning them on specific issues, demonstrating in the streets, or, indeed, voting in a referendum. All of this belongs to the realm of politics and conveys nothing to the judiciary of our actual, concrete rights.
That is not to say that the two fields are worlds apart; the business of one may very well influence the shape of the other. So there are many aspects of last week’s ruling which will have considerable impact on the course of events in the next few years. The key thing which is being missed in too much media discussion on this issue is that there is a place for both. There is a place for law in managing the appropriate forum in which the scope of our rights and responsibilities are to be deliberated on and implemented. There is also a place for politics in law, as shown in the judicial recognition of when it is appropriate to pay proper deference to the vital role of parliament to decide these matters and not infringe on this territory.
That is why the Bar Council- the organisation representing barristers in England and Wales- has rightly called upon the Justice Secretary to condemn attacks on the judges who ruled on the Article 50 trigger issue. This is the profession for whom this principle is, of course, most prised, and they recognise the implicit danger in the rhetoric attacking the independence of the judiciary. Suzanne Evans for example, in a tweet she has since deleted, went as far as calling for the three judges to be sacked. Do they honestly not see the incompatibility of calling for democracy to be upheld whilst at the same time demanding the ousting of judges of whose decisions they disapprove? Evans, and others like her, ignore the holistic nature of what it means to be a modern, constitutional democracy with a commitment to human rights and the rule of law.
Overall the tone of this discussion is deeply concerning. Leavers need be under no misapprehension that the High Court’s judgment will not prevent our withdrawal from the EU- after all, apparently ‘Brexit’ does in fact mean ‘Brexit.’ They will get their precious sovereignty. What we must be firm about, though, is that the independent nation sought in this debacle is one worth having. That means a constitutional democracy with an independent judiciary capable of upholding the rule of law. In tandem must come an effective, functioning parliament subjecting government to proper scrutiny and representing the electorate to the best of their ability. Outrage at a legal judgment which most commentators haven’t bothered to properly comprehend will do nothing to bring about this aim.