The government’s response to the media backlash against the ruling was inadequate.
The press quickly came to grips with the gravity of the situation. ‘Enemies of the people,’ screamed The Daily Mail’. ‘Who do you think EU are?’ demanded The Sun. The Daily Express was the most forthright of all, calling its readership to arms with the headline: ‘Now your country really does need you…’.
I’m glad that’s been cleared up. I hadn’t quite realised that a court ruling delaying Brexit was comparable to the horror of the Great War of 1914. Some might call that insensitive so close to Remembrance Day. But, there you go.
So what exactly is this dire peril? On 3rd November, three judges ruled that British constitutional law does not allow for the Government to begin the process of leaving the European Union without first passing a law through Parliament. The reason? That ‘the most fundamental rule of the UK’s constitution is that Parliament is sovereign’ – meaning that no law passed by Parliament can be overridden by the Government without passing new legislation through Parliament. The UK joined the EU in 1973 by passing the European Communities Act in 1972 – and so in order to leave, Parliament must now pass a new law to repeal this legislation. The European Union Referendum Act, passed in 2015, does not give the Government sufficient powers to start the process of leaving the EU without first consulting Parliament, since that legislation explicitly specified that the referendum was to be advisory rather than legally binding.
It sounds boring and technical – and, really, that’s because it is. It’s the job of the British judiciary to consult legal precedent and rule on the interpretation of Britain’s strange, amorphous constitution. Has Brexit been blocked? No; it will probably take Theresa May a little longer to begin the process of leaving the EU, but it still seems highly unlikely that a majority of MPs would choose to vote against the will of the people as expressed in the referendum. Moreover, parliamentary scrutiny is far from a bad thing, even for those who favoured Brexit. Despite the unsavoury nature of a few MPs, as a group the House of Commons has considerable collective expertise. They will now be able to use this to ensure that Theresa May really does get the ‘right Brexit deal for the UK’.
So this isn’t a ‘power grab’ by ‘activist judges’ that ‘undermines democracy’. Far from it. Newspapers and politicians lambasting the judges should take care: the separation of powers between the Government, Parliament and the Judiciary is in fact one of the fundamental pillars on which our democracy is founded. The independence of Britain’s courts provides protection for the Judiciary, ensuring that judges cannot be fired should they choose to rule against the government. But it also provides important checks and balances on the Government’s power that protect the rights of us all. Crucially, these do not place limits on Parliament’s sovereignty, which remains supreme – our Supreme Court does not have the power to ‘strike down’ legislation. But the courts do have the power to call into question important procedural errors committed by the government, which is what has happened here.
The government has, belatedly, defended the independence of the judiciary – which, incidentally, is meant to be one of the primary roles of the Lord Chancellor. Yet the words of Liz Truss and Theresa May – the latter only qualifying her support by saying that she also values ‘the freedom of our press’ – have been half-hearted and weak.
That is unacceptable. It is entirely possible to call into question the decision of the courts without calling into question the legitimacy of the judicial decision – which would have been the responsible line for the pro-Brexit press to take. Equally, it is entirely possible to attack the words of a newspaper while defending the newspaper’s right to publish them. Freedom of the press is irrelevant, and a cowardly excuse on the Government’s part; this Government should and must vigorously attack the tabloids for seeking to undermine our judicial process. The legal right to express an opinion does not absolve you from responsibility for that opinion, and neither does it disallow others from arguing against you.
Perhaps the inherent suspicion of many Brexiteers that the country’s institutions are biased against them is reasonable. But – reading the judgement – I find it hard to disagree with any of the technical aspects of the decision. Perhaps this is why nearly all the accusations of political bias from pro-Brexit politicians seem to have come in the form of unqualified assertions. I have yet to hear a coherent legal argument as to why there is a special case in this instance wherein Royal Prerogative provides sufficient powers for the Government to override the 1972 European Communities Act without first consulting Parliament.
Originally published on November 20, 2016 by Cherwell.