Jamie Foster: Brexit Gunpowder, Treason and Plot

Reposted from the blog of Jamie Foster

Remember, remember the 4th of November, it’s the day the legal profession took leave of its senses. Hopefully temporarily but certainly noticeably. It was perhaps unsurprising. It is not often that a constitutional law case which could help define our political future appears on the front of our national newspapers with such a barrage of fireworks. It is easy to be drawn in by the pretty explosions.

The 3rd November marked a win in the High Court for a wealthy fund manager, Gina Miller. This modern-day Guy Fawkes placed her barrels of gun powder directly under the Government, rather than Parliament this time. Her explosive case determined that the Government had no right to trigger Art 50 and inform the EU of the UK’s desire to leave without a vote in Parliament. The sparks from the case caused explosions across the press, with the Mail and the Sun calling the three judges who took the decision ‘traitors’ and ‘enemies of the people.’

Under the headlines, the papers reported that one of the judges was an openly gay Olympic fencing champion. I found this reassuring and inspiring. It is great to know that our judiciary is both open and sporting. The idea of a gay blade on the High Court benches adds colour and romance to this already vibrant tale. They also reported that another of the judges founded a law group that campaigned for greater European integration and therefore questioned his suitability to sit on the case.

The legal profession went into uproar and called on the Lord Chancellor, Liz Truss, to take action to protect the independence of the judiciary. Interestingly they were not demanding that she found out how a judge with such clear views on one side of the argument ended up hearing the case. The action that my legal brethren wanted taken was for a Minister to tell the papers they should not have asked the question in the first place.

It is very unclear exactly what they wanted poor Liz Truss to actually do, however. Had the Mail and the Sun said anything illegal in their articles it would be a very easy matter for the High Court judges to have protected themselves. They are, after all, very powerful people indeed. Unfortunately nothing said was illegal, merely indecorous. Nonetheless the lawyers on social media and in the press demanded that action be taken by a government minister to curb the lawful expression of opinion by UK newspapers on a matter of national importance.

One highly eminent QC, the ex Attorney General Dominic Grieve, said it made him feel like he was living in Zimbabwe. This is ironic because in Zimbabwe government ministers have no qualms whatsoever telling the press what to write about judges. Labour soon picked up the baton with Hillary Benn calling on Liz Truss to take some unspecified action against the editors of our national newspapers who had had the temerity to do their job. Liz Truss, to her credit, refused to be drawn.

November 4 was not merely a single day of fireworks, Dear Reader. As is the tradition in modern Britain, fireworks season looks set to drag on, as the case makes its way to the Supreme Court. This will be a very special hearing indeed. Not only because for the first time in its history 11 Supreme Court judges will hear the case. Nor indeed because it will be televised and likely to draw an audience of unprecedented scale for a UK hearing. The thing that will make it special is the opportunity it affords for the Supreme Court to consider an issue that is truly of national importance.

In simple terms this case helps define not only the relationship between Parliament and the Executive, but between government and the people. It is fraught with legal sleight of hand, which the wizards on the Supreme Court bench have an opportunity to expose as conjuring tricks rather than real legal magic. Perhaps the most obvious is the argument that Parliament needs to vote on the decision to leave the EU.

This illusion relies on the suggestion that the referendum was merely advisory, so a decision has yet to be made, and that Parliament has not had an opportunity to express a view. Brighter sparks might ask who the referendum was intended to advise. The answer is, of course, the Government, not Parliament. The Government sought the advice on whether to leave on the promise that such advice would be followed. To argue that the Government is unable to accept such advice because it is merely advice is specious. To suggest that Parliamentarians haven’t voted on the issue is equally specious. They voted twice. Firstly they voted 6-1 to have a referendum. Then each and every parliamentarian had an opportunity to vote in the referendum. As did the judiciary, the lawyers and the press.

This is in essence the elephant in the room that the Supreme Court will have to choose to confront or ignore. The people voted, and now the Court will have to determine whether the Government, acting on the will of the people, is supreme, or whether 650 of those people, sitting in Parliament, still rule as if they were a monarch. Are the British people Parliament’s bosses or is Parliament our ruler?

Far greater legal minds than mine have considered the arguments that underpin the case from both sides. My small contribution is to ask whether we will finally confront the question of what parliamentary sovereignty in the UK means. Does it mean, as John Locke and Abraham Lincoln persuaded the American people that it meant; that government is of the people, for the people and by the people? Or does it mean that the powers of a supreme monarch to rule over us have been merely delegated to a committee?

The Supreme Court has a choice as to whether to treat this case as a legal Sudoku that can be solved by reference to case-law and precedent, or to recognise the fundamental legal principle before them and confront it with the full force of their independent judicial brilliance. In my very humble opinion whatever they decide their decision must be clear and comprehensible to all of us that it affects. That is to say all of us. My hope, although not necessarily my expectation, is that they will do the right thing.

That is to say to confirm that our elected representatives in parliament vigorously debate issues and vote on our behalf, but when they hear from us directly on a matter, they defer to the people who gave them the power and allow the Executive to take its orders from source. In that way they could really protect not only the independence of the judiciary, the integrity of parliament and the separation of powers, but they could let off some legal fireworks truly worth watching.