Europe / Brexit, Democracy and the Rule of Law

The United Kingdom (“UK”) has been at odds with itself for over three years since the referendum result in 2016. It asked the UK electorate to vote on whether they wanted to stay in the European Union (“EU”) or leave. However, depending on its outcome, if the UK was to leave there was more than one question to ask and it required a substantial constitutional amendment. Despite this the Government seems to have made the decision to launch the referendum without taking much into consideration.

As we know, the vote in the end, was to leave, in what is said was to be a “decisive” vote to exit. The consequences of the reckless act of Government meant that the exit would mean to exit with or without a deal. But the actual result of the referendum was in fact by a slim majority which many have since argued the wishes of that majority should be treated as that of the British people. It is this that Parliament have had to wrestle with and in doing so have been accused of treacherous and undemocratic action. Little has been said of why we are where we are and instead Parliamentarians have been charged with not carrying out the will of the British people. The Government have misinformed the nation and have gone as far as shutting down Parliament so as stop parliamentary scrutiny and criticism (a form of dictatorship) mainly because of the division in the Conservative Party and the British media have played a substantial part in this instead of reporting and informing. But it is time for some honesty.

What does the referendum result really tells us about our present predicament. Well, it was it completely legitimate way to resolve an issue fundamental to the UK interests and one that different people feel strongly about. Democratic institutions are designed not just to provide a result. They are equally important to accommodate those that disagree but in acting in a way that does not take into account opposing views and interests it simply has the effect of tearing ourselves apart. This is especially the case where there are slim majorities for a particular aspiration which in fact has major constitutional ramifications. Is this correct? Well look at what has happen.

The result has divided the four nations that make the UK, it has divided the regions, by economic status and class; it has even divided families and friends. This has all happened because of a sense of entitlement that the result of the referendum generated amongst the leavers leading to the feeling that having won they are entitled. This entitlement has resulted in extreme acts such as Cabinet (a group of ministers) closing down Parliament because they did not get support there for their policies, come what may, as consequence for the UK. The argument apparently that MP’s have no rights to share their views and protect the national interests as they see them. These ministers have declined to respect resolutions in the House of Commons and even when a statute is passed to limit their options they mock it and leave in doubt that they will respect it and act accordingly. In other words act unlawfully, ignoring the rule of law. They have defied every constitutional norm simply because it stands in their way. To say that this is democracy at work, is simply nothing more than to not understand democracy, which is much more than a right to placing a cross on a piece of paper.

Beyond all of this what is missed is that the referendum did not even answer the question that has divided us over the last three years. One was do you wish to leave the EU and the second was what relationship does the UK want with EU. But only one question was on the ballot. So did we have a decisive vote. The second question which should have clearly been asked is what has substantially divided us because it is crucial to our wellbeing as a nation. But further, because the referendum was so limited, the debate in the last three years has merely exposed much more to the point of re-examining whether to leave at all.

There can be little doubt that there were those who voted because they wanted to leave and then those who wanted to leave at any price; there was those who wanted to stay and those who wanted to remain at any price. But also there was those on the side of the leavers or stayers who would say it depended on the cost to the nation.

There is much opinion about the EU. There are those who see it as a seriously defective organisation that works economically but not politically. There are those who find national autonomy attractive and those who do not. But these days the world we all live in is not as simple as seeing a single isolated issue from a much wider number of issues and practicalities.

I voted to stay, as did most of my friends, but not all. My decision was a considered one based on over 45 years in the EU and the price of leaving being too high over illusions far too outdated in today’s world.

The difference between those wanting to stay and the leavers was little to do with the attractiveness of the EU but more the price and all of the other problems that would come with it. The leavers are attracted to the idea that eventually we will have all of the same economic trade advantages of membership without the political burden and EU rules. But in 2016 we had little idea of what the price would be. Frankly, even now whilst we have seen and heard much we still do not really know what will happen if we do end up by leaving. Apart from an economic effect, is the danger of the breakup of the UK.

So the price is getting higher than perhaps even some of us contemplated.

We need to stop pretending that we had it all planned out and not allow our ego to dominate our decision making. The time has come when we need to re-examine what is best for all of us as a nation and for our MPs to do what they were elected to do which is much more than just represent us as individuals but do what is best for the UK as a whole. Not one region, one social class or status.

Even our Courts were asked to referee. In Scotland a case was brought by a cross party group of 75 members of Parliament and a QC, and England and Wales seeking Judicial Review and declarations.

The Government succeeded in defending the applications in Northern Ireland and England and Wales but lost in Scotland. There was then appeals by all that had lost below to the United Kingdom Supreme Court (“UKSC”) R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) Eleven Justices heard the Appeals. The issue was as follows:
Whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August, that Parliament should be prorogued from a date between 9th and 12th September until 14th October, was lawful and the legal consequences if it was not.

On the 24 September, the UKSC in delivered its unanimous decision. In summary it said:
“Briefly, the Scottish case was brought by a cross party group of 75 members of Parliament and a QC on 30th July because of their concern that Parliament might be prorogued to avoid further debate in the lead up to exit day on 31st October. On 15th August, Nikki da Costa, Director of Legislative Affairs at No 10, sent a memorandum to the Prime Minister, copied to seven people, civil servants and special advisers, recommending that his Parliamentary Private Secretary approach the Palace with a request for prorogation to begin within 9th to 12th September and for a Queen’s Speech on 14th October. The Prime Minister ticked ‘yes’ to that recommendation.

On 27th or 28th August, in a telephone call, he formally advised Her Majesty to prorogue Parliament between those dates. On 28th August, Mr Jacob Rees-Mogg, Leader of the House of Commons and Lord President of the Privy Council, Mr Mark Spencer, chief whip, and Baroness Evans of Bowes Park, Leader of the House of Lords, attended a meeting of the Privy Council held by the Queen at Balmoral Castle. An Order in Council was made that Parliament be prorogued between those dates and that the Lord Chancellor prepare and issue a commission for proroguing Parliament accordingly. A Cabinet meeting was held by conference call shortly after that in order to bring the rest of the Cabinet “up to speed” on the decisions which had been taken. That same day, the decision was made public and the Prime Minister sent a letter to all Members of Parliament explaining it. As soon as the decision was announced, Mrs Miller began the English proceedings challenging its lawfulness.”

Parliament returned from the summer recess on 3rd September. The House of Commons voted to decide for themselves what business they would transact. The next day what became the European Union (Withdrawal) (No 2) Act passed all its stages in the Commons. It passed all its stages in the House of Lords on 6th September and received royal assent on 9th September. The object of that Act is to prevent the United Kingdom leaving the European Union without a withdrawal agreement on 31st October.

On 11th September, the High Court of England and Wales delivered judgment dismissing Mrs Miller’s claim on the ground that the issue was not justiciable in a court of law. That same day, the Inner House of the Court of Session in Scotland announced its decision that the issue was justiciable, that it was motivated by the improper purpose of stymying Parliamentary scrutiny of the Government, and that it, and any prorogation which followed it, were unlawful and thus void and of no effect.

Mrs Miller’s appeal against the English decision and the Advocate General’s appeal against the Scottish decision were heard by this court from 17th to 19th September. Because of the importance of the case, we convened a panel of 11 Justices, the maximum number of serving Justices who are permitted to sit. This judgment is the unanimous judgment of all 11 Justices.

The first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him”. However, in considering prerogative powers, it is necessary to distinguish between two different questions. The first is whether a prerogative power exists and if so its extent. The second is whether the exercise of that power, within its limits, is open to legal challenge. This second question may depend upon what the power is all about: some powers are not amenable to judicial review while others are. However, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power. All the parties to this case accept that. This Court has concluded that this case is about the limits of the power to advise Her Majesty to prorogue Parliament.

The second question, therefore, is what are the limits to that power? Two fundamental principles of our Constitution are relevant to deciding that question. The first is Parliamentary sovereignty – that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second fundamental principle is Parliamentary accountability: in the words of Lord Bingham, senior Law Lord, “the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy”. The power to prorogue is limited by the constitutional principles with which it would otherwise conflict.

For present purposes, the relevant limit on the power to prorogue is this: that a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In judging any justification which might be put forward, the court must of course be sensitive to the responsibilities and experience of the Prime Minister and proceed with appropriate caution.

If the prorogation does have that effect, without reasonable justification, there is no need for the court to consider whether the Prime Minister’s motive or purpose was unlawful.”

The Government lost and Parliament was recalled.

There was immediate criticism from certain factions of society in the UK to the Court’s decision charging the Justices of the UKSC with interfering in politics and breaching the well-established principle of separation of powers as between the Judiciary, the legislative (Parliament) and the executive. Again an element of the pro levers setting out there a misrepresentation of the outcome. It has been established for decades that the Courts can examine actions of the executive (government) and make orders and give declarations if a Court is of the opinion that it has over stepped a principle of fairness and or attempting to circumvent the Rule of Law. There is little doubt that the present Government had acted in a way to stop Parliament from questioning government actions and therefore the Court was not only entitled to act as it did but it would have been a bad precedent if it had not.

It is clear that the referendum process having been put as it was has been divisive and it will continue to be so, but those who have been elected (MPs) have the duty to act on behalf of the nation as a whole not just a few.

The events of the last three years has demonstrated the importance of the need for good governance but where the executive fails Parliament must play the role of check and balances and when it becomes necessary an strong impartial Judiciary maintaining the Rule of Law.

John G Almeida, CLA Vice President for Europe