The People v the High Court

Why, if you think of yourself as a believer in freedom and democracy, should you defend the result of the June 23 referendum, not High Court judges? Because if the courts are now to instruct MPs regarding the way in which they must conduct their business, it drives a new kind of wedge between you and your MP – you can elect your representative, you can tell them how you would like to vote on issues that affect you, but if any Tom, Dick or Harry with deep enough pockets thinks differently, they can buy the legal power to frustrate your wishes in the highest courts in the UK, and make it stick.

If the Supreme Court, following its hearing of the Government’s December 5 appeal, decides on January 16 to back the High Court’s November 2016 decision, it puts the UK in exactly this anti-democratic position.

Parliament is the servant of the people: we instruct our political representatives. Parliament can only be sovereign if it delivers the will of the British people. This principle has been blurred by November 3’s High Court challenge to the UK’s exit from the European Union. The litigants, Gina Miller et al, want the Government’s pre-existing “royal” prerogative to invoke Article 50 without parliamentary debate to be vitiated and replaced by an Act of Parliament.

Although the royal prerogative is usually used to avoid democratic controls, in this instance, the Government was planning to use it to invoke Article 50 under direct instruction by the electorate. This action is in line with the Act of Parliament (the 2015 Referendum Act) which set in motion the referendum process.

Why are the litigants and judges being anti-democratic?

Gina Miller, after the High Court verdict on November 3, claimed that “We were dealing with the sovereignty of parliament….. It was about what was right. Now we can move forward with legal certainty.”

Former Attorney-General Dominic Grieve is also a fan of the legal process interfering with the political. In a BBC interview on December 8, he maintained that parliament has a duty to manage a Leave process “… that might do appalling damage to the economic life of the citizens of the UK … In the UK, in order to change law, you need to pass a new law.”

Other Remain-voting Tories, Labour MPs and Liberal Democrats are, with varying degrees of deceit or openness, attempting to deny the UK’s democratically expressed will.

The legal challenge is a sham, full of phoney protestations that the law of the land is being corrupted. It is an attempt to hold up a process that is very straightforward: triggering Article 50 gives Parliament two years to make the necessary arrangements for a complete separation from the EU.

What really keeps Gina and chums awake in the wee small hours is not any threat to democracy, but its use by ordinary people. Why do they think that the wishes of the UK voters should be disregarded? That the considerations of judges, investment managers, civil servants and opposition and government politicians should be marshalled to outweigh than those of the millions who want to see Britain out of the EU?

The deep-pocketed litigants who have called on UK’s highest courts to rule on the Brexit process maintain they have no problem with the referendum decision. But their rush to the courts suggests that they hold the voters in fear and contempt, and these efforts to block and frustrate the people’s will are an expression of it. They think the voters didn’t understand what they were voting for, despite the strident and dire warnings of the Leave campaign in the lead up to the referendum. They are furious that the voters didn’t trust them and refused to believe them.

We should be in no doubt that if the Supreme Court rules in January, following the December 6 hearing, that parliament must vote on the Brexit process, the Prime Minister’s promise to begin negotiations to trigger Article 50 by the end of March will be under serious threat. And along with it, the democratic mandate of the British public.

Stalling the democratic mandate

Calling in the judges was only the first stalling action instigated by some Remainers. Many MPs have demanded that the government should lay out its plans for negotiating Brexit before implementing Article 50. Ardent Tory Remainer Anna Soubry said during a BBC Radio 4 interview on Monday December 5, Brexit “….will happen, pursuant to the will of the people … We are going to respect the outcome of the referendum.” But, she continued, the issue of Remain or Leave “… is just a simple question – there were many more complex questions that were not put to the voters at the time of the referendum…”

This insistence on the inability of the “simple” voter to understand the complexities of Brexit was borne out in the Parliamentary vote on December 7, in which MPs backed a Labour motion, by 448 votes to 75, a margin of 373, which said the government should publish its plan for Brexit, and that it was “Parliament’s responsibility to properly scrutinize the government” while it worked on this.

In response, the government conceded that it would publish its plans, but added an amendment requesting parliament to respect the wishes of the UK as expressed in the referendum on June 23rd, and to endorse the government’s wish to invoke Article 50 by March 31st 2017. This was passed by 461 votes to 89, a majority of 372.

While the Government seems determined to respect the electorate and plough on with Brexit, Remainers seem equally determined to throw up objections. Labour’s Shadow Brexit Secretary Sir Keir Starmer, for example, has equated an untrammelled passage through parliament for the government’s plans to “a vote in a vacuum.” If the Supreme Court decides on January 16 that Parliament must vote on the details of Brexit, many Remainers will continue to do what they can to obstruct the process of leaving the EU.

The anti-democratic sentiments of these Remainers are revealed by the assertion that the referendum was only “advisory”. In direct contradiction of Parliament’s promise to act on the result of the Referendum Dominic Grieve, “We do not rule, in the UK, by referendum.” When asked if, in that case, the referendum had just been a very grand way of obtaining the public opinion of the country, he replied, “That’s a very good way of putting it.”

We will be keeping a close watch on developments over the next few months!

Is the court case brought by Gina Miller anti-democratic?

Gina Miller and most others who brought the case against the government’s use of the Royal Prerogative in the Royal Courts of Justice voted Remain. As a result some people have concluded that this is an attempt to overturn the democratic vote through legal measures. They argue that the referendum result gave the government an instruction, by popular vote, to withdraw the UK from the EU By invoking the Royal Prerogative to trigger Article 50, the Government was respecting the wishes of the electorate. In contrast, the court case and Judges’ ruling set out to subvert and obstruct this process.

Those who brought the case argue that requiring parliament to vote is protecting the democratic process. They recognize the referendum vote but argue that it should be carried out properly by the government. Gina Miller says the case is about “process not politics”, to clarify whether the government’s use of the Royal Prerogative to leave the EU is constitutional or not. As a former law student and daughter of an Attorney General in Guyana, she argues that any democratic process or mandate must protect parliamentary sovereignty and the judiciary exists to rule on whether government actions are legal. 

Not all the claimants of the court case voted Remain. One of the claimants is a Brexit voter who agrees with the argument against executive power being used to trigger powers which unmake a treaty. Although, it is normal for executive power to be used to do this, the claimants argue that this is a unique case: unmaking the treaty with the EU involves taking away rights expressed in law and only Parliament can change laws involving citizens’ rights.  

Nevertheless, those who brought the case, and the judges who decided in its favour, ignore the fact that, in the referendum, the people gave Parliament and Government a mandate to leave the EU. In agreeing the Act of Parliament MPs accepted that the Referendum would decide the future of Britain’s membership of the EU and an official Government leaflet explicitly promised: ‘This is your decision, The Government will implement what you decide.’ 

If the Judges’ decision that Parliament is entitled to veto the leave process, should the majority of MPs believe that it is not being carried out properly, is upheld in January, Parliament can effectively overturn the vote by 17.4 million people, 52% of the voters. This is the anti-democratic implication of the court case and the Judges’ decision on it.

Of course we should be able to trust our MPs to respect the mandate they were given by the voters, but the fact that the majority of MPs are themselves opposed to Brexit is a source of concern. The Government is planning to initiate a process in January that will allow Article 50 to be triggered by the end of March. If MPs – or the House of Lords – obstruct this process we must hold them to account for ignoring the democratic will. MPs should at the very least respect the wishes of their constituencies and vote in favour of triggering Article 50 immediately.

Still think Parliament hasn’t been involved in Brexit?

In the wake of the High Court ruling (BBC, 3rd November) that the government does not have the power to trigger Article 50 – to start formal exit negotiations with the EU – without the approval of Parliament, here are the ways Parliament has already been involved in the processes of a Brexit fitting the wishes of the people. 

Here is some political context for the legal challenge:

  1. Parliament gave their sovereign mandate on whether to leave the EU to the people by approving the 2015 Referendum Act – in effect judges are ignoring the democratic will of millions of people who voted because MPs gave them the final say on whether we leave the EU.
  2. When judges focused on the 1972 law (that binds us to the EU), their conclusions imply it trumps the 2015 parliamentary act where MPs gave the people the deciding voice, regardless of legal issues binding us to the EU. 

Theresa May is not restricting peoples rights by using the Royal Prerogative (as implied by our  High Court Judges focused on the 13th century agreement where merchants demanded the monarch did not restrict their rights using the Royal Prerogative). She is simply using this executive power to honour the people’s vote – a rare use indeed of the RP, but nevertheless that’s what she’s doing: The People’s Prerogative!

For all her faults, it is also unfair to say that Theresa May has ignored Parliament since coming to office because:

  • It is widely acknowledged that MPs are to be given a vote to undo the 1972 Act that binds us to the EU. 
  • There have already been debates in parliament over what kinds of negotiations/policies the government should be pushing for with the EU

She could do better of course in raising debates (her team keep saying they’re not going to give a “running commentary” on negotiations) but that’s all part of politics and how it works in parliament – contestation over policies, leadership, debates, laws, motions, votes etc….

[Overturning] The People’s Challenge

In August, it was reported that Theresa May’s timetable for negotiating Britain’s withdrawal from the European Union could be derailed by a High Court challenge represented by law firm, Bindmans. The so-called, “People’s Challenge” claim that the rights they enjoy as British citizens inside the EU cannot be taken away unless the Acts of Parliament giving effect to EU law are repealed by Parliament. They include Grahame and Rob Pigney, who live in France; Christopher Formaggia, who lives in Wales, Paul Cartwright, who is from Gibraltar; Tahmid Chowdhury, who lives in London and Fergal McFerran from Belfast. [Source: Independent]