Tom Rogan has written in these pages a fine and robust critique of the U.K. High Court’s decision that the British government must submit its activation of the Lisbon Treaty’s Article 50, the starting gun for negotiations on British withdrawal from the European Union, to a vote of Parliament before actually withdrawing. I am in complete agreement with his broad conclusion and largely so with his supporting arguments.
But we are probably both surprised by the extent to which this dry and seemingly technical legal decision has provoked in the stolid Brits a popular debate on constitutional law so passionate and lively that one anti-Brexit blogger said with reluctant admiration that it had all but persuaded him of the democratic value of sovereignty. Each side of this tumultuous argument has erupted into denunciations of the other (note to the New York Times: the other, not the Other.)
“Enemies of the People,” shrieked the Daily Mail headline about the High Court. “The Judges versus the People,” thundered the Daily Telegraph. “We Must Get Out of the EU,” wailed the Daily Express almost despairingly. To this barrage from pro-Brexit papers, Remainer columnists warned of dangerous populism, racism, and the distant (but approaching) threat of neo-Fascism, which could be averted only by MPs’ ignoring the referendum, listening to judicial wisdom, and using their independent judgment to, er, vote to stay inside the European Union. And the international press — mainly CNN and the New York Times, whose reporting on Brexit is hard to distinguish from anti-Brexit op-eds — decided that the High Court’s decision had either delayed or halted Prime Minister Theresa May’s progress towards leaving the EU.
It all got very heated — see, for instance, this column by Nick Cohen in the Guardian, in which a populist thug lurks inside every Tory or Leave voter struggling to get out and start doing . . . well, what exactly? . . . voting in a threatening manner, I suppose.
Now, there certainly are important issues at stake — who governs, under what rules and conventions, what is the role of MPs (or congressmen) in a representative democracy, etc. It’s conceivable that they might produce a major U.K. constitutional clash down the line. But we’re still at some distance from the barricades. And though the central dispute is whether the people or the political elites rule, as Tom clearly established, it’s going to emerge in many ways and be decided in several forums. What follows is a brief and partial guide to the circus:
‐Remainers are enjoying some sport with the argument that Leavers, having made parliamentary sovereignty the basis for their pro-Brexit campaign, are now fuming that the High Court has insisted that Parliament should vote on it. “Hypocrites hoisted with their own petards” is the line of attack. But it’s less an argument than a smokescreen. Among the many things that the High Court did not do was compel the government to hold a parliamentary vote on Brexit. Everyone knows that there has to be such a vote in order for Brexit to occur. Ministers outlined a Brexit parliamentary timetable that includes just such a bill (the repeal of the 1972 European Communities Act, or ECA) some weeks ago. But that vote will occur at the end of the diplomatic process, giving Parliament the final dispositive say on whether Brexit happens. What the Court ruled last Friday was that there had to be a vote in Parliament to authorize ministers to begin negotiations on Brexit. And that’s a very different matter.
Remainers are enjoying the argument that Leavers, having made parliamentary sovereignty the basis for their pro-Brexit campaign, now fume that the High Court has insisted that Parliament should vote on it.
‐Different in what way? As the three judges of the High Court pointed out, Parliament is sovereign in Britain; there is no higher authority. (That’s a welcome statement in itself because some senior judges have recently been indulging in the speculation that the U.K. is now ruled equally by “twin sovereignties” — namely, Parliament and themselves. Good to see that idea thrown overboard.) As with everything else in the British constitution, however, it’s not quite that simple. Since 1688 the country has been governed by the Crown-in-Parliament. Thus, the Crown (or the executive, in U.S. constitutional language), resting on the support of a majority of MPs in Parliament, governs through both lawmaking and discretionary executive action known as the royal prerogative. If it loses its parliamentary majority, it loses both kinds of power. The scope of the royal prerogative has changed over time, but it has always been understood to cover treaty-making and the conduct of foreign policy. Holding talks on leaving the EU in accordance with the Lisbon Treaty seems to be a textbook case of legitimate ministerial authority under the royal prerogative. So the High Court was introducing a new and major limitation on the royal prerogative, thereby making law rather than merely interpreting it, indeed radically deconstructing British constitutional practice that has been in place for just short of 330 years. In American terms, it is as if the Supreme Court had told the president that he has no power to conduct negotiations with foreign governments on, say, climate change or Iranian nuclear policy but must submit his negotiating tactics to a Senate debate and vote in advance — which, as we know, is rather the opposite of what has recently happened in both examples. In other words, it’s a very big deal.
‐How did this happen? One reason seems to be that the government lawyers, now being heavily criticized, presented a rather complacent and over-technical case. They simply didn’t stress the radical constitutional nature of the petitioners’ case or, what may be more important, the historic political background represented by the referendum. Constitutional lawyers are now weighing in on such points. In a powerful deconstruction of the High Court’s logic here, Adam Tomkins of Glasgow University, who advises several government institutions on constitutional affairs, points out that ministers are seeking to invoke Article 50 because they have been told to do so by the voters. Their exercise of the prerogative is therefore “no ordinary executive act: it is an act ministers have been told to undertake in a referendum authorized by Act of Parliament.” So the High Court is proposing to limit the royal prerogative when it is being exercised to fulfill a democratic mandate obtained by elections in furtherance of an earlier Act of Parliament. Curiouser and curiouser.
The coarse politics behind this legal challenge are clear: to keep Brexit from happening at all by a series of legal challenges until, as its opponents hope, public opinion turns against it.
‐One might suppose that the Court must have strong reasons for such a byzantine exercise. The reason it argues most strongly, however, is that the rights of British citizens cannot be taken away without statutory approval, and since they enjoy rights as EU citizens, a triggering of Article 50 by ministers would do just that. This argument evaporates even before examination. The EU rights of U.K. citizens will not be taken away, since they remain EU citizens until Britain leaves the EU. And at that point they will enjoy a new set of rights broadly corresponding to those they have “lost” following Brexit, as ministers have repeatedly made clear. What guarantee is there that this will happen? It is that Brexit will occur only if Parliament passes it into law — that is, if the changes in rights obtain advance statutory approval. What makes the High Court’s argument still more tortuous is that, as Professor Tomkins mildly points out, it rests in part on a schoolboy howler: It ascribes to the 1972 Parliament that passed the ECA the intention that the rights it grants should not be removed without parliamentary approval in accord with constitutional rules not adopted until 1998 and 2000! (Contrast this, incidentally, with the same judgment’s dismissal of the argument that since MPs voted for the referendum legislation, they must have intended its obvious and foreseeable consequences, such as a Leave victory and the triggering of Article 50.) A suspicious person (not me, Guv!) might imagine that what underpins this tortuously illogical judgment is the growing belief of lawyers, in Britain and elsewhere, that national governments are not to be trusted with rights that need lawyers or international bodies — or, better, international bodies staffed by lawyers — for their proper protection. This legal preference is not very persuasive in light of the fact that human rights are best protected in countries — e.g., Australia, Canada, and New Zealand — that have never handed over rights protection to outside bodies. All the same, it may help account for the blend of error, high-mindedness, and over-reaching that characterizes this judgment.
So much for the theory. What are the likely practical results if the U.K. Supreme Court rejects the government’s appeal and upholds this decision? It would force the government to disclose its negotiating strategy in public, change it in line with hostile amendments, reveal information useful to the negotiators on the other side, drag ministers back to Parliament repeatedly for new authority on additional issues, and ensure that Whitehall was unable to meet rational deadlines in its legislative planning. For, though some of those who brought the case to court doubtless had public-spirited motives, the coarse politics behind this legal challenge are clear: to keep Brexit from happening at all by a series of legal challenges, procedural objections, and simple delays until, as its opponents hope, public opinion turns against it. That’s how much of modern politics is played, but the courts are not supposed to play such games — or even carelessly to give the appearance of doing so.
That’s why two law professors, Richard Ekins and Graham Gee, who work with the London think tank Policy Exchange on its Judicial Power Project, will get a hearing from both public and politicians when they argue:
The High Court has made a bad mistake — it has wrongly lent its authority to a claim that undermines both democratic self-government and the rule of law. The basic point of this litigation has not been to defend parliamentary democracy. Rather, the aim has been to introduce a new stumbling block to Brexit by providing sympathetic MPs and peers with an opportunity to frustrate the referendum result. The Government is right to appeal and the Supreme Court should promptly overturn the High Court’s dubious decision.
Should the Supreme Court endorse the previous decision, however, it is likely to invite a counter-judgment from the most decisive court of all, namely, the electorate. For what this judgment will ensure more than anything else is a long period of uncertainty. And as all sides agree (most unusually), uncertainty is the greatest problem attending Brexit. The quicker everyone knows when Brexit will occur and what the broad outlines of a future EU–U.K. relationship are, the quicker businesses, universities, economic institutions, global bodies, and other countries can adjust their planning and tailor their new relationships. The longer the period of uncertainty lasts, the higher the risk of postponing decisions, prosperity, and stability.
#related#Prime Minister May is a very cautious politician, and caution has served her well. But if the choice is between abandoning Brexit and tolerating indefinite uncertainty, she will go for a third option: holding an early election on a clear manifesto commitment to carry through Brexit in short order. She would almost certainly win such an election, and the earlier she goes, the higher would be her likely majority. Her victory would also resolve a number of other difficulties. It would end uncertainty on the central political issue of the day. In particular, as Andrew Lilico points out, it would end the uncomfortable oddity of a Remain Parliament that’s been asked by the voters to adopt a Leave agenda. It would accelerate the development of new political alignments in a post-Brexit context. Passionate Leavers among Tory MPs would know they had to change either their opinion or their party; passionate Remainers would know that they had to found a new political party for the long haul. It would make clear to the courts and the House of Lords that they could not obstruct or delay a new national grand strategy rooted in Brexit. And it would clarify Britain’s relationships with its allies in Europe, the Anglosphere, and around the world.
That all sounds pretty good to me.
But the U.K. Supreme Court might want to consider if it really wants to turn these possibilities into realities.