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.