Gordon Lindhurst: Brexit and the silent voter

Gordon Lindhurst

As the Supreme Court hearing on Article 50 gets underway, Gordon Lindhurst discusses the case as a reluctant leaver

Our judges do a difficult job in the public spotlight. This is as it ought to be, because they make decisions which affect real people in the real world. But they do not always get it right. That is why we have appeal courts. And once every appeal right is exhausted, the law is set. And when the appeal judges get it wrong, it is only parliament which can change the law.

The law is not always as it may appear to some, a matter of black and white, right and wrong. The common law recognises this by openly accepting that there is such a thing as judge-made law. As Otto von Bismarck said, “whoever believes in the law or sausages should never watch either being made”. Having seen both being made, I can only confirm the truth of that statement.

This is why in our parliamentary democracy, the doctrine of the sovereignty of parliament is crucial. According to Dicey, it is parliament which is sovereign. It was true in both England and Scotland before 1707 and remains true today. The European Communities Act 1972 has confused some on this issue. The rule of law and civilisation itself interweave in a fine balance in our understanding of democracy. Interference with that balance can be disastrous.

Some of the consequences flowing from the 1972 Act and membership of the European Union appear to have upset that balance. The EU referendum produced the answer no to the question whether we should stay or leave. For over 17 million voters (myself included) to say leave is staggering in itself. As a former student of European law at the ancient German university of Heidelberg, I was a reluctant leaver. Amongst many many factors, the decider for me was the clear unwillingness to seriously consider sensible reform of the EU’s antiquated setup. As a Scottish Conservative of many years standing who values democracy and the rule of law, it has been more than disappointing to see the unwillingness of some to accept the result of the EU referendum. For years, I have accepted the unwanted outcome of elections as part of the legitimate and healthy democratic process.

The debate on whether or not the government requires to reveal its hand to parliament on the intended Brexit negotiating position continues. Experience dictates that negotiations invariably require pre-negotiation secrecy. For someone in the same boat who never wanted the negotiation to happen at all to insist on it seems highly questionable. Conventionally it is for the government of the day to decide on foreign (as opposed to domestic) issues in terms of the Royal Prerogative. It is for parliament to decide the (domestic) laws of the land. And it is a fundamental democratic principle that the government of the day must hold the confidence of parliament.

But it is in parliament that the question is to be decided. If it does not accept the conduct of foreign affairs, it can express that in a vote of no confidence bringing down the government. In parliament. In the highest court of the land. That is where the executive is held to account on non-domestic matters within its powers. Not in the courts. This is a result of the ultimate meaning of parliamentary sovereignty. And it is the ultimate protection of our democracy that parliament is accountable to the voters who select MPs for a limited period of time only. Judges are not elected by the people and do not answer to them directly.

It is ironic that, on the very day Brexit debate was raging in the House of Commons, a very similar argument was being debated in the highest German constitutional court, the Bundesverfassungsgericht. The question there related to CETA ratification and whether the Bundestag had a right to be involved in the negotiating nitty gritty. The answer, unsurprisingly, was no. The clear and obvious need for an executive to have the freedom to negotiate on behalf of a nation rather than be trammelled at every step of the way by the interference of those who may wish to derail the process. This should be, and usually is, recognised, with the national institutions having the power to decide on domestic issues arising from such international agreements.

Enter the High Court and the disgruntled leavers in R(Miller). Absent the silent voters, over 17 million, whose rights and lives are deeply and immediately affected by the EU. Here and now in this country. Who made clear their position in the EU referendum held by act of parliament. Who thought that was sufficient. How, as a matter of law could the answer “Yes” to the question “Should the United Kingdom remain a member of the European Union or leave the European Union” be misunderstood by anyone?

On that legal basis alone, no mandate remains for anything other than for Article 50 to be triggered. The facts are simple: On 23 June 2016, the referendum held by Act of Parliament decided that the UK should leave the EU. Leaving the EU is triggered by invoking Article 50. The decision of the voters in the referendum was for that to happen.

Consequences in domestic law and the effect of Article 50 being triggered, are self-evidently for parliament to deal with in detail. But alterations in domestic law would require to be carried out within a time framework, something recognised in the CETA judgement of the Bundesverfassungsgericht. Until an act of parliament alters the 1972 Act and Article 50 itself takes effect in the domestic law of the EU nation states some time will require to pass. The action and consequences do not come into force either simultaneously or immediately.

The extremely brief 1972 Act contains no prohibition against leaving the EU, nor provides any specific mechanism or limit on the power of the government in doing so. As is recognised in the High Court judgement, there was no clear statutory basis for its decision in favour of the remainers. Rather, it was based on interpretation “in the light of the constitutional background” and by “clear and necessary implication”. No wonder legal commentators have already referred to it as an important constitutional precedent. To the legally uninitiated read “judge made law”. To the impartial observer, the appearance at least that rights of those who voted to leave have been trumped by a handful of those who voted to remain.

The judgement, unusually, is at pains to point out that it determines a legal rather than political question. But the effect of the judgement is highly political. If there had been clear statutory law to decide upon a position rather than verging into the territory of judge made law it might not have been. In effect, however, the High Court has ruled that it is its place to determine whether or not the government of the day is entitled to act in international matters without the express approval of parliament. This constitutes judges determining how the government of the day relates to parliament, rather than it being for parliament to decide for itself. This is what gives the political nature to the decision, and has as its consequence the limitation of the sovereignty of parliament. For it is for parliament to decide how it conducts itself and how it relates to the government of the day. Not for judges.

In 1604, after a disputed election, the Court of Chancery ordered a new election which never happened after a House of Commons Committee response on the issue. The response stated that “there is not the highest standing Court in this land that ought to enter into competency either for dignity or authority with this High Court of Parliament, which with your Majesty’s royal assent gives laws to other Courts, but from other Courts receives neither laws nor orders.”

In 2010, this was quoted by the then Lord Justice Thomas in the High Court decision in the case of Woolas. It does not feature in the Miller judgement. Perhaps it should have. After all, the decision in Miller in effect centres on the question of who is sovereign, parliament or the courts? In a case in which the High Court accepted it decided against the government based on “interpretation” and “implication” in the absence of a statutory provision, surely that decision is one only parliament is entitled to and should make?

Sadly, civilisation can be a very thin veneer. It is the rule of law which holds it together. The difficulty with a decision based upon interpretation and implication, is that it will carry less weight with the silent voter who was at the ballot box but not in the court room. The silent voter whose rights, not in some theoretical world, but here and now in the domestic sphere, in the United Kingdom, are affected by the EU.

Any perceived disregard for the basic principle that parliament is sovereign, including in the right to decide upon how the government of the day is to be held to account for its conduct in international affairs, should be of concern. Both perception and substance are important in law and politics and are critical to public confidence in the political and legal systems.

That is why parliamentary sovereignty includes the right of parliament, not judges, to regulate its own affairs, including the question of how and when it holds the executive to account for its conduct in the international sphere. To hold otherwise is to question the very basis of our democratic system which gives the people, who elect parliament, the final say. That was the real question in the case. In that sense, the decision was a political and not a legal one. And, with respect, and with regret, in my view the conclusion arrived at was wrong.

Gordon Lindhurst was elected Scottish Conservative list MSP for the Lothian Region in May 2016. He is Convener of the Economy Jobs and Fair Work Committee and member of the Social Security Committee of the Scottish Parliament. A graduate of Edinburgh University (LLB (Hons)) and Heidelberg University (LLM), a Scottish advocate, and a barrister at law of the Middle Temple, he is also a visiting lecturer in English and Scottish Court Practice at the University of Bonn.