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.