By Daniel Margrain
The ruling last Thursday (November 3) by three High Court judges to allow MPs the right to a vote over the decision to Brexit was welcomed by this writer. Campaigners won their battle to defeat Theresa May’s attempt to use the Royal prerogative as a means of overriding parliamentary sovereignty. The decision of the judges to apply what is a matter of constitutional law, means that the government cannot trigger Article 50 without a vote in parliament. Below is the 2015 Referendum Bill Briefing Paper which appears to be consistent with assertions in the liberal media that the referendum result is advisory, not mandatory:
“The UK does not have constitutional provisions which would require the results of a referendum to be implemented.”
Following the judges decision, and despite the legal clarity, some of the tabloid printed media ran with inflammatory headlines. The Daily Mail – the paper that in the 1930s supported Hitler fascism, for example (see graphic above) – referred to the judges responsible for upholding the rule of law, as “enemies of the people”. Even some Tory politicians got in on the act. Sajid Javid, for instance, described the decision as “an attempt to frustrate the will of the British people.”
What Javid appears to be unaware of, is that in British law it is not the role of an independent judiciary to uphold and implement the will of the people but to uphold the law. Parliament and elected MPs are subject to the will of the people, not judges.
Javid’s stigmatizing language undermines the important role played by an independent judiciary in terms of its ability to curtail crude populism. The undermining of the independence of the judiciary and the promotion and normalization of referenda, is concomitant to the prevailing hate-driven agendas of the tabloids. But this also fits into a wider right-wing political narrative in which simplistic binary approaches to often complex problems are preferred to process and nuance.
For example, in order to garner the support of right-wing fringe elements, the former PM, David Cameron, stated that Article 50 would be triggered automatically following any vote to leave. This modus operandi has continued under Cameron’s successor, Theresa May, who continues to argue for a “hard Brexit” claiming that Article 50 should be invoked immediately without any parliamentary scrutiny or oversight.
These kinds of inferences to fascist ‘mob rule’ was effectively what the Conservative MP David Davies was arguing for when, on Twitter, he stated the following:
“Unelected judges calling the shots. This is precisely why we voted out. Power to the people!”
Here Davies is calling for a non-independent judiciary. The one word for a country where the judiciary is not independent, and where the law is expected to reflect the temporary feelings and emotions of the public – often built upon superstitions, lies and exaggerations – is “dictatorship”. The German constitution banned referenda precisely because they know how fascists came to power.
Modern, secular based constitutions that separate the judiciary from parliament exist in order to prevent the drift towards fascism. In order to prevent this from happening, it’s the job of the Conservative Lord Chancellor, Liz Truss MP, to defend the independence of the British judiciary. But instead of coming to their defense by publicly criticising Javid’s or Davies’s comments, or reprimanding the editors of the Daily Mail, she has remained almost silent.
By arguing against the decision of the High Court judges, Javid and Davies are, in effect, arguing against the legitimate right of British judges to enact British law in the context of the British sovereign parliament. From the perspective of the ‘leavers’ this would seem ironical since they were the people who were most anxious to press the point about the need to ensure Britain maintained its sovereign parliamentary status.
In the avoidance of confusion, parliament (legislature) makes laws and the government (executive) implements them. The role of the judiciary is to check the legality of those laws. The separation of these powers is an integral part of the proper functioning of the state. In ‘An Introduction to the Law of the Constitution (1915, 8th edition, p.38), Professor A.V. Dicey explains the precedent by which the principle underpinning British parliamentary sovereignty is set and, consequently, on what basis the Referendum Bill above was formulated.
Professor A.V Dicey’s century-old legal precedent states, “No person or body is recognized by the law as having a right to override or set aside the legislature of parliament” which “has the right to make or unmake any law whatever.” This simple precedent means “that it cannot be said that a law is invalid as opposed to the opinion of the electorate.”
In this context, referenda are irrelevant because “the judges know nothing about any will of the people except insofar as that will is expressed by an act of parliament.” The point about the separation of powers is that the legislature and the judiciary protect the public from the possibility that the executive will act against the interests of society of which an all-powerful unchecked state is emblematic. But it also exists to protect the public from itself.
How does this play out in terms of the referendum?
Parliament not only has a responsibility to the 17.5 million British people who voted for Brexit, but it is also responsible to the 29 million people who didn’t (see graphic below).
The role of MPs, in which parliament is sovereign, is not to represent the wishes of the public (a common misconception), but rather to represent the interests of the public in their totality. In this sense, therefore, the interests of 29 million people override the wishes of 17 million people. The interests of the people in the country as a whole, in other words, are not served by committing economic suicide.
As almost the entire professional career of elected politicians is based on them scrutinizing legislation, it follows that what they regard as being in the best interests of the public carries more weight in the decision-making process than people who voted in the referendum on the basis of what they read in the Daily Mail or as a result of the lies uttered by politicians like Nigel Farage, Michael Gove and Boris Johnson.
The fundamental nature of British representative parliamentary democracy is that the public elect a representative not a delegate. The sovereign and inviolate aspect of the system, in other words, means that British constituents elect MPs who they think will exercise their best judgement by voting – Whips notwithstanding – on issues that reflect their best interests.
As the majority of MPs supported remain, and the majority of constituents voted to leave, adopting the rationale described means that, logically, the latter voted against their own interests. Ensuring MPs vote in the best interests of their constituents is what parliamentary sovereignty means. In this regard, all of the pro-leave MPs who said the result of the referendum was a reflection of parliamentary sovereignty, were lying.
It is clear that the Tories wanted to by-pass the law in order to initiate a ‘hard Brexit’ without laying out the terms of such a strategy. The fact that the judges have forced a parliamentary vote – barring any successful appeal to the Supreme Court – means there now has to be proper scrutiny of its terms in advance of the vote. This is in sharp contrast to the continuation of the empty and meaningless “Brexit means Brexit” platitude uttered constantly by Theresa May.
David Cameron, called the referendum, clearly in the anticipation that his side would win. He also must of been aware that a victory for leave would not have been triggered automatically as the information contained in the leaflets sent to all households stated. In any event, the former PM resigned following the result of the referendum precisely because he knew he couldn’t fulfill the promise he had made to the electorate prior to the vote. Cameron’s unelected successor, is therefore tasked with clearing up a mess set in motion by the incompetency of her predecessor.
During the previous election campaign, the Tories manifesto promise was to remain in the single-market. Having so far failed to call an election over the debacle, May’s authority is highly questionable. She didn’t have a mandate before the judgement and she has even less of one now. My advise to Jeremy Corbyn and his team is to prepare for an early election.