Why we should respect the Brexit ruling of the Supreme Court, whatever it may be
Dr Sue Prince & Dr Kubo Mačák who teach constitutional law at the University of Exeter, set the context for the Supreme Court case this week which they describe as 'the most important constitutional case of our generation'.
Probably the most important constitutional case of our generation is being heard by the Supreme Court this week - the Government’s appeal against a High Court ruling that the Prime Minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union.
The decision in the Miller case, now known simply as the “Brexit judgement”, has led to our judiciary labelled as the “enemies of the people” trying to defy the popular will. This is constitutionally problematic. Whatever happens, there is an urgent need for the judicial process and its outcome to be respected by all.
We can expect the judges involved in the appeal to seek to distance themselves from the government and Parliament and emphasise their independence which was cemented into UK law in 2005. Those High Court judges involved in the case who have been so lambasted have already taken pains to stress that their role was not to discuss the pros and cons of Brexit as such, and they were “only dealing with a pure question of law” concerning the power to trigger the withdrawal procedure. Lord Neuberger, the President of the Supreme Court, made the same point in his opening statement yesterday morning.
Regrettably, much of the media coverage of this case has done little to inform and educate those who wish to understand the case or indeed, the legal system in general. We know some people believe that the Supreme Court judges’ decision will be personal and political. Perhaps this confusion has not been helped by the media, which has at times confused legal points with the personality traits of judges.
This case is more than just about Brexit. It is a key opportunity to refine the constitutional relationship between Parliament and the government. There is an accepted constitutional principle that rights guaranteed by statute may not be overridden by government exercising its so-called prerogative powers. To do so would go against the doctrine of Parliamentary sovereignty, once described as “the bedrock of the British constitution” by the late Lord Bingham.
But will the (majority of) the Supreme Court justices agree with the High Court that EU rights were “created” in UK law by the European Communities Act 1972, a statute passed to allow the UK to become a member of what now is the EU? Or will they opt to interpret that statute as a mere “conduit” or “vehicle” for EU rights, and thus possibly outside of the scope of the principle that “statute beats prerogative”?
Crucially, in a modern democracy, the legal and the political can never be isolated into watertight compartments. “Scarcely any political question arises,” Alexis de Tocqueville observed already in 1830, “that is not resolved, sooner or later, into a judicial question.” In one sense, today’s political elite, mostly surprised by and unprepared for the outcome of the referendum in June, is simply relearning that historical lesson for yet another time.
The question before the Supreme Court, even if it originated in the political process surrounding the outcome of the referendum, has now irreversibly evolved into a judicial one. The court is asked, in essence, to draw a line between the powers belonging to Parliament and those belonging to the government.
In a modern democracy based on the rule of law, this is a proper and necessary role for an apex judicial institution like the Supreme Court. In this sense, its members truly are “the guardians of the Constitution”, as Lady Hale noted in her recent, and, we feel, unjustly criticised, speech.
Half of the UK’s population will likely be unconvinced by the court’s ruling. Still, we strongly believe we all—academics, politicians, media, as well as the general population—should come together in giving respect to the decision and the process that will lead to it.
There is also an opportunity this week. The Supreme Court no longer solely relies on the media as a conduit between itself and the people as it opens itself directly to scrutiny. The proceedings of the case are being broadcast live and the Court encourages visitors. It also publishes summaries of its judgements on its website.
We may not know what the constitution requires today. But once the judges have spoken, their word will be the constitution. We must be clear: to undermine and attack the judges means to subvert the constitutional order of the country we all live in.