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Brexit and the Courts

The British Constitution is not a single document like the American Constitution but many documents, including Acts of Parliament, Court judgements and historic conventions. A central element of the Constitution is the Rule of Law. This rule has five essential features: government is bound and ruled by law, there is equality before the law, law and order are established and maintained, justice is applied consistently and predictably, and human rights are protected. The rule of law is an essential basis for democracy and a bulwark against totalitarian government.

A free press is also an important feature of a democracy but the reactions in some newspapers to the High Court judgement last week that the Government must seek Parliamentary authorisation for triggering Article 50 showed a deeply disturbing lack of respect for the rule of law and the independence of the judiciary. Advocates of Britain leaving the EU obviously consider this an important matter, backed by 52% of the voters, but they were wrong if they thought the High Court’s judgement was a political statement challenging the outcome of the referendum and they were dangerously wrong in threatening the rule of law.

At the heart of this dispute is confusion as to where sovereignty really lies in the British Constitution? The Judges understood that it lies with the Queen in Parliament, not the people. A basic knowledge of British history makes that plain. A majority of men did not have the right to vote until 1884, when the third Reform Act was passed. Women did not have the vote until 1918 (over 30) and 1928 (over 21). The present law that gives everyone over 18 the right to vote, except Lords and criminals serving more than six months in prison, dates only from 1969. Until the 17thcentury sovereignty lay mostly in the hands of the Monarch. The civil war and the beheading of Charles 1st began to change that and gradually Parliament shared sovereignty. The fact that Governments face re-election at least every five years gives voters some power but doesn’t make them sovereign.

The suggestion that the Government could act without parliamentary authority, using the Royal Prerogative, is rooted in the historic principle that it was the Monarch who declared war. That convention has changed in recent years. David Cameron asked Parliament for authority to send troops to Syria in 2013 and the Commons voted against it. He asked if the RAF could join the coalition helping Iraq and Syria in 2015 and MPs supported that. That changed the convention as to when the Government might use the prerogative powers. Dominic Grieve MP, the former Attorney General, and Sir Keir Starmer MP, the former Director of Public Prosecutions, both made that clear in a recent Commons debate. The High Court Judges would have been very aware of that and it is most unlikely that the Supreme Court will take a different view in December.

Constitutional law matters but so does political reality. Even though the Courts confirm that Parliament, not the people, is sovereign it does not necessarily follow that MPs and Peers will vote against the outcome of the referendum. They will take account of the damage that would do to the authority of Parliament in the eyes of the 52% who voted to ‘Leave’. More interesting is how MPs will seek to influence the terms for the negotiations and what they will do if those terms are not met by the EU.

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