The latest development in the Brexit mess: the Judges in Britain have decided that the Government cannot trigger Article 50 without first getting parliamentary approval.
Read the decision here.
This perfectly reasonable judicial decision led to hysterical comments from Britain's gutter press (Daily Express, Daily Mail, The Sun etc.)
There are some complicated legal issues behind this decision. Such issues include:
(i) whether and to what extent EU Law forms part of UK law and creates rights for UK citizens--rights that only the parliament can abolish;
(ii) whether and to what extent Treaties between states require parliamentary approval.
[ Note: "According to constitutional practice in the United Kingdom, Parliament has no formal role in treaty-making, as the power to do so is vested in the executive, acting on behalf of the Crown. Where a treaty requires a change in UK legislation or the grant of public money, Parliament may vote in the normal way to make or deny the required provision; in other circumstances it can only overcome the will of the executive to conclude a particular treaty by expressing disapproval and relying on political pressure to change the mind of ministers, or, in the extreme case, by withdrawing its confidence from them. The lack of formal parliamentary involvement in treaty-making differentiates the British Parliament from most other national legislatures.]
and (iii) whether the referendum decision was conclusive or merely advisory. [Note: The Referendum Bill made it clear that the referendum was merely advisory.]
The legal rectitude of the Miller decision turns on the impications of the European Communities Act 1972, the act that took Britain into the EEC. Did that act create statutory rights that only Parliament can now take away?
If you are interested in the standing of European law in the UK, see
Thoburn v Sunderland City Council (discussed in my The Idea of a European Superstate)
But these legal issues are small compared to some wider political and philosophical questions involving the authority of popular sovereignty (i.e. decisions reached via direct democracy or a referendum), parliamentary sovereignty (i.e. decisions reached via representative democracy through a legislature) and basic principles of political morality.
From a political perspective, the furious reaction to the judges decision is further evidence of the populist anger against elites and experts, a feature of the political debate in the UK and the US.
Predictably Nigel Farage was on the Sunday morning news shows breathing fire. His position is that the judges have over-ruled the will of the British people. (See the transcripts of his interview on The Andrew Marr Show.)
“We are heading for a half Brexit…. I’m becoming increasingly worried.
“I think we could be at the beginning, with this ruling, of a process where there is a deliberate, wilful attempt by our political class to betray 17.4 million voters.”
Much of the political controversy over Article 50 in the UK proceeds from a genuine anxiety over the bargaining position that May will adopt with respect to the EU.
This anxiety has grown in recent weeks for four reasons:
(I) The Canada-EU trade deal (CETA) ran into difficulty, suggesting that any UK-EU deal will be even trickier;
(II) Various EU leaders have said it's Hard Exit or No Exit;
(III) May apparently (and secretly) promised Nissan that their trading relations with the EU would not change in a negative way:
(IV) The Indians told May that they want easier immigration policies in return for any trade deals the British might want from India.
From a philosophical point of view, the Miller decision raises some fundamental questions about the nature of democracy and sovereignty in a modern liberal society.
1. Who has ultimate authority judges, the executive (i.e. President or the Crown), the parliament (i.e. the legislature), or the people (via direct democracy or referendum)? What happens if the people vote one way and the parliament votes another?
2. What is the responsibility of the individual Parliamentary or Congressional Representative?
Here the lines of Edmund Burke (1774) are worth recalling:
But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience –these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.
Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.
Academics are divided on these issue. (For a range of views, see here and here and here.) Les Green from Oxford University had this to say:
"Today’s judgment in the High Court... (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.
The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]
If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided."
Les Green puts it nicely:
Les Green puts it nicely:
"Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states (my emphasis added).
......The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.
........Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not."
My quick view on this is that:
Judged against any plausible standard of political morality, it is difficult to sustain the claim that "a people" has the right to constitute itself as such regardless of the impact of its decision on others. Decisions about exit (whether withdrawal from the EU or secession from a state) can have catastrophic effects on those excluded by the new definition of "a people." I don't think that it should be only up to the Scots to decide whether to remain in the UK. I think that any legitimate Scottish secession ought to require concurrent majorities at three different levels--Scotland, UK, and Europe. Likewise. I think any British withdrawal ought to require concurrent majorities at the sub-national levels (esp. Northern Ireland), UK level, and the European Parliamentary level.
As a matter of political morality, the UK referendum decision ought to have been made conditional on its acceptability to others in Europe who face the loss or curtailment of their Union Citizenship. In my view, the Judges didn't go far enough. Neither popular sovereignty nor parliamentary sovereignty are fundamental moral ideals. The decisions that emerge from them warrant support only insofar as they accord with fundamental principles of political morality.
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