Courts, democracy and Brexit: Some home truths

There are three aspects of the High Court’s ruling in Miller — the implication of which is that Article 50 cannot be triggered without an Act of Parliament — that are significant. The first is whether the High Court was right as a matter of law. I have already written briefly about the legal merits of the judgment, and will comment further on that — in a piece I am writing with a colleague — in due course. The second is the political implications of the judgment for the future of the Brexit process, assuming it is not overturned by the Supreme Court. I spoke about this in my Cambridge University Brexit Week talk and will comment on it further in an interview to be broadcast on Law in Action on BBC Radio 4 next week.

The third aspect of Miller — with which I am concerned here — is the political and media backlash that the Court’s judgment has elicited. The discussion of the judgment in the press has been nothing short of extraordinary. The judges who decided the case have been lambasted for — among many other things — acting undemocratically. The nadir is perhaps the front page of the Daily Mail published the day after the judgment, describing the judges as the ‘enemies of the people’ and referring to ‘fury over “out of touch” judges’ who defied popular will. When criticism is as misguided as this, it is difficult to know where to begin. But let me try.

The question that the court was asked to — and did — examine was a legal question. The question was whether, under the UK’s constitutional arrangements, the process for exiting the EU can be triggered by the Government, or whether only Parliament can authorise this. That is a question of law — a question about where legal power resides. The court concluded that it resides in Parliament. It happens to be the case that I am sceptical about that view, and that I consider the contrary view — that the Government already has legal authority to trigger Article 50 — to be the better one. But the legal merits of the court’s judgment are nothing to the point, for they form no part of the astonishing criticism levelled at the judges by sections of the British press. Rather, those criticisms are prior to any consideration of the legal niceties. They amount to the assertion that by adjudicating on this matter, judges are subverting democracy by frustrating the will of the people. For three reasons, that criticism is plain wrong.

First, there is nothing in the Miller judgment that prevents Brexit from taking place. The question put to the court had nothing to do with whether Brexit should occur. Rather, the question before the court was about the process by which Brexit can be initiated. The court has decided that that process can only be begun by, or with the permission of, Parliament. But that in no way implies that the court is seeking to prevent Brexit from taking place. The court was absolutely clear about this: ‘Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law. The policy to be applied by the executive government and the merits or demerits of withdrawal are matters of political judgement to be resolved through the political process.’

Second, the argument that judges should not adjudicate on this matter because they are — or because so adjudicating — is ‘undemocratic’ is constitutionally illiterate. It is true that judges in the UK are not elected. But that does not mean that the decisions they take about the lawfulness of (actual or proposed) Government action are undemocratic — even if those decisions about the law relate to matters whose substance is politically contentious. Our courts do not enjoy or claim legitimacy because they are elected. Rather, their legitimacy derives from their independence, the requirement that they justify their decisions by reference to legal standards, and their resultant capacity to supply judgments that are objective and politically neutral. Far from threatening democracy, independent and impartial courts are a precondition of democracy.

Third, there is an obvious and delicious irony — yet one that is lost on some — in the argument that British judges are somehow overstepping the mark by ruling on the issue in this case. A large part of the Leave campaign during the EU referendum was premised on the notion that control should be wrested from ‘unelected bureaucrats’ in Brussels and restored to a sovereign UK Parliament — and, equally, that the influence exerted by ‘foreign’ judges on the EU Court of Justice should be returned to British courts. Indeed, when he was Justice Secretary and Lord Chancellor, Chris Grayling MP waxed lyrical about making ‘our Supreme Court … supreme again’. (That, admittedly, was in respect of his objection to the influence wielded by the European Court of Human Rights, but the general point stands.)

Looked at in this way, the position occupied by Brexiteers who castigate the Miller judgment begins to look decidedly uncomfortable. After all, a British (or, more accurately, English) court has determined — by applying the constitutional law of the United Kingdom — that the UK Parliament is entitled to call the shots in this context. The Brexiteers’ mantra — the speciousness of which I pointed out in an article in the Frankfurter Allgemeine Zeitung — was ‘vote leave, take control’. At the core of that argument was the case for restoring the sovereignty of the UK Parliament and the perceived strengthening of democracy that that would entail. Against that background, if membership of the European Union was objectionable because it amounted to an affront to British democracy, it is hard to see why the High Court’s judgment in Miller is anything other than the handmaiden of such democracy.

To close, I can think of nothing more apposite than the words recently tweeted by Gary Lineker: ‘The front page attacks on the 3 judges for basically just doing their job is scary. This is fast becoming a dystopian land.’ I could not have put it better myself.