The Brexit High Court challenge: why the Lord Chief Justice has opened Pandora’s box

Welcome to the constitutional aftershocks of the leave vote

When Pandora opened the box she had been told never to open, she released all the evils inside upon the world. By his decision in the High Court on 3rd November, Lord Thomas of Cwmgiedd may well have done the same regarding what could be the British constitution’s impending implosion.

This is not the fault of Lord Thomas, or his two colleagues, who ruled on the legal challenge brought by claimant Gina Miller against the government’s intention to invoke Article 50 — which starts the formal process of leaving the European Union — without holding a vote in parliament.

Lord Thomas made the only decision he could. Article 50 describes the process of withdrawal as taking place by the normal constitutional arrangements of the member state in question. Ordinarily, since Article 50 is part of a treaty, the government could use powers of royal prerogative. As the treaty in question, the Treaty of Lisbon, is an EU treaty that means a vote in parliament, even if parliament would have got its vote anyway when it came to repealing the European Communities Act 1972 — the act that means EU law is incorporated into, and supreme over, domestic law. A quick look at the European Union Act of 2011 will confirm this, with repeated mentions of how a vote in parliament must take place, even if no one at the time ever thought the UK would vote to leave the EU, something made clear by the fact that act deals with treaties concerning further integration.

The purpose of that act was to cover all changes to EU treaties, and as acts of parliament can only be undone by acts of parliament, parliament was going to get a vote anyway. You could argue that once Article 50 had been invoked parliament would only have been able to decide whether it was a soft Brexit or a hard Brexit. That is now immaterial, for not only will parliament get a say much sooner but Lord Thomas’s ruling will serve to expose the constitutional fault lines in a way they may not be able to withstand.

Central to this is the question of just how supreme parliament actually is. By passing the European Communities Act, parliament effectively fettered itself, subject to a kind of curious mirage coming into play. In theory all EU law was being enacted into UK law by acts of parliament, so parliament could still appear sovereign. As the Factortame case proved in the early 1990s though, the EU could, through the European Court of Justice, strike down UK laws whenever they weren’t compatible with European rulings. This happened when the Merchant Shipping Act infringed the rights of Spanish fishermen to form a shell company to fish in UK waters and beat quotas.

So parliament is still supreme, except before the European courts. This issue justifiably agitated Leave campaigners who wanted to make parliament truly sovereign again. That parliament may now be in the position to reaffirm the fetters that come from Europe by exercising its sovereignty to do so is an irony that already has die hard Remainers foaming at the mouth. Unfortunately for them there remains the fact that parliament is also bound by the will of the people who elected it, to follow their decisions.

This is why judicial review allows the courts to challenge the executive but not parliament. Because judges are not elected and aren’t accountable to the people in the same way that MPs are, their power to challenge decisions is limited to reviewing the processes used to reach those decisions rather than the decision itself. So the government’s intention not to hold a vote in parliament before invoking Article 50 was a flawed process rather than a flawed decision. Should the Supreme Court affirm Lord Thomas’s decision — and given the correct nature of his decision in a strictly legal sense, it’s hard to see how they won’t — then the extent to which parliament truly is supreme will be tested.

There are two reasons for this, the first legal, the second political, both of them constitutional.

On the first issue, any decision by the Supreme Court to uphold the need for parliament to have a vote will lead to further judicial challenge if parliament votes against invoking Article 50, even if only at the present time. As those who voted to leave will see it — and I should declare here that I voted leave and still very much believe in that decision — there was a legitimate expectation that the outcome of the vote in the referendum would be honoured. The government of David Cameron said so, and he duly fell on his sword when he lost. Theresa May’s succeeding administration has since said ‘Brexit means Brexit’ — a statement of clear meaning, if not particularly detailed.

The second issue is far more extensive. If, or rather when, parliament gets its vote, it will be a de facto vote of confidence in or against the government; if the government loses there will be almost irresistible pressure to hold a general election next year rather than in 2020. This would then bring the Fixed-term Parliaments Act 2011 into play, as to dissolve parliament and call an early election there needs to be either an explicit vote of no confidence in the government and no replacement government formed within two weeks, or else the government would need a hundred more or so MPs than it has to vote to dissolve parliament and hold an early election.

Neither is particularly desirable. On the first, who would form a credible replacement government? Labour wouldn’t be able to form a majority administration even with the SNP and the Liberal Democrats backing it, a development that wouldn’t inspire confidence from either the country or the markets. If there was an early election, the Tories would win, and Theresa May would have an actual mandate for Brexit.

On the second, May’s government will not get those hundred or so opposition MPs, since none of the opposition parties have anything to gain but humiliation from an early election (Ruth Davidson’s Scottish Tories might win some seats from the SNP, while Labour would simply be skewered on its own divisions). That would leave a millstone hanging around the government’s neck as the Fixed-term Parliaments Act comes to look like a piece of short term political expediency. More to the point, the evolutionary nature of the British constitution would be revealed for being as much its weakness as its strength. Evolution doesn’t always produce the strongest of the fittest, and the constitution is too vulnerable to opportunism on the part of governments more concerned with advantage in the present than considering what the repercussions might be in the future.

The result is that the country risks heading into a vicious constitutional loop where the executive and the legislature come to be at permanent loggerheads, resolved only when the 2020 election finally comes around. The courts will be powerless to do anything but rule on technicalities and all the while the people, who should not be required to accept legal technicalities given their expectation that ‘Brexit means Brexit’, will lose faith in both their elected representatives and in democracy itself.

With any luck of course this won’t happen. Parliament will respect the will of the electorate — who voted by a clear majority to leave the EU — by voting in favour of triggering Article 50, with parliament free to thrash out the issue of repealing the European Communities Act at a later date. The fault lines in the constitution though have already been exposed for all to see, and constitutional experts will have much to debate in the coming years, especially on the issue of parliamentary supremacy.

For in truth parliament is not supreme. It has abrogated certain responsibilities and authorities, first to Europe, then to the devolved administrations around the UK.

More to the point, it has always been subject to the will of the people. That’s where it draws its legitimacy from, and in that it understands that when the people express their will, they expect it to be acted upon. So parties that lose elections don’t form governments. Prime Ministers who lose referendums of constitutional importance resign, and parliament acknowledges that the people have a legitimate expectation that their desire to leave the EU will be acknowledged and acted upon.

Gareth Wood is a Lancaster University graduate. He is now a GDL student at the University of Law.