By: Nye Williams-Renouf
UK / On Thursday afternoon, the High Court delivered its verdict on the most controversial British constitutional case in generations. Having heard arguments from a clutch of eminent barristers, a bench presided over by three senior judges produced a unanimous judgment that was sober, detailed, and well-reasoned in law.
In response, the British press ran with the following headlines:
To be clear, the High Court’s judgment absolutely does not block Brexit. The only question the court faced was whether the government is entitled to use its prerogative powers to trigger Article 50 independently. The court passed no judgment on the political merits or viability of Brexit. It simply held that the government does not have the power without explicit parliamentary assent to engage in an undertaking that changes domestic law and modifies rights previously created by legislative action in parliament. That conclusion was arrived at as a matter of law, and the court’s standing to adjudicate on that point has never been disputed. In short, the court did its job, thereby exercising a vital apolitical check on the executive’s power to arrogate certain lawmaking powers unilaterally.
While Thursday’s verdict is of potentially historic significance, the answers it has arrived at are considered important enough to be worthy of an expedited referral to the Supreme Court; the latter may yet arrive at a different conclusion while performing exactly the same judicial function as the trio who presided over the case in the High Court. That is how the rule of law works in a self-regulating democracy. The case also embodies what many Leave voters believed Brexit should deliver – the determination of weighty constitutional issues back in the hands of British decision-makers, with British judges robustly defending British parliamentary sovereignty.
Yet in the midst of this purported victory, some of the country’s most popular newspapers decried the death of democracy amidst a tyrannical assault on British society by so-called enemies of the people. Bearing in mind the reputation of certain British papers for headlines that boast an occasionally tenuous relationship with the truth, it should perhaps come as little surprise that a basic grasp of the distinction between the rule of law and politicised judicial tyranny appears to have eluded those gatekeepers charged with communicating the impact of the verdict to the country at large. Observers could be forgiven a brief chuckle; perhaps a healthy functioning of the apparatus of government wasn’t quite what some people had in mind when they proclaimed Brexit meant taking back control.
Of course, it’s not actually funny. The response of certain parties is a slur on the judiciary’s impartiality. Casting three senior judges’ unanimous verdict on a question of law as a partisan political intervention recklessly undermines public confidence in the judiciary, and threatens the court’s ability to properly enforce the law of the land. Careful consideration of the legal questions addressed on Thursday is vital to the functioning of British democracy, and will only assume greater importance as the UK extricates itself from the EU. As such, the media bears a particularly weighty responsibility to the public to report on developments responsibly and accurately. The failure in certain corners to shoulder that burden is shameful. Regardless of your view on Brexit, such an outrageous assault on the courts should be roundly condemned.
Barring an extraordinary about-turn in public and government sentiment, Theresa May will still eventually trigger Article 50. The UK will leave the EU. The crucial difference is that there will now be a clear chain of accountability. As underlined by the court yesterday, notwithstanding its political significance, the June referendum has only advisory power, and could not be regarded as giving the government a legal mandate to trigger Article 50. It is surely fitting that the government’s authority to instigate negotiations will now instead flow from an act emblematic of parliament’s assured sovereignty.
Brexiters and Remainers alike should rejoice; we’re taking back control. Thank the Gods at least one branch of government has shown itself to be ready to exercise that responsibility with the care, intelligence, and respect for the rule of law it demands.