international law

Judges: who elected them anyway?

I was conscious that I was (over)due another Brexit Blog, but didn’t really know where to begin. Nothing much seemed to be happening, so what was there to say. Wrong, and wrong again.

Apart from MPs resigning, the High Court’s decision – that the triggering of Article 50 required the approval of the UK Parliament, rather than being exercised under the “Royal Prerogative” – has thrown the timing of the trigger-pulling into question. The decision is likely to be appealed to the Supreme Court, but if the Supreme Court uphold the decision then both houses of Parliament may have some fun. The “both” is important because the House of Lords may well cause more issues than the House of Commons.

Understandably, Brexiteers are in uproar. How dare the judges defy the wish of the British people? But, there is one problem with that argument: the judges’ decision is that the UK Government must uphold the law and do things “properly”. So, Government, do it properly and then pull the trigger: don’t do it properly and you can’t pull the trigger.

At the heart of this is the fact that, because the UK does not have a written constitution, we think we know what the law is on things like this – but don’t know for sure until the point is tested in court. If you add to that the fact that much UK law remains based on precedent (in other words, the law is what the courts say it is, whatever anyone else thought) that’s why this case deals with important principles of constitutional law. Where does power lie between the Government (the executive) and the people’s representatives (MPs and, yes, members of the House of Lords). We thought we knew, until the court told us for sure

And then there is the Royal Prerogative. That stems from the time when the monarch had absolute power, but has now morphed into something where the Prime and other Ministers (appointed by the Crown) can exercise powers on behalf of the Crown. But, we have a sovereign Parliament – so who wins? As this case shows, not much is clear, but it looks as though Parliament trumps the Crown (on this at least).

So, what are the lessons? We really are not much further forward on Brexit: I don’t know what will happen after the trigger is pulled or what the outcome will be. Perhaps the UK now needs a written constitution (particularly with devolved governments in three of the constituent nations – and all the recent furore over bulk appointees to the House of Lords). And, in my view at least, the courts are there to uphold the law (which must surely be at the heart of our constitution).

I’ll finish on a potential delicious irony. If the Supreme Court upholds the High Court’s decision, will the Brexiteers appeal to the European Court?!

John Clarke