The British Constitution, though unwritten, is finely balanced and risks being seriously distorted by the High Court decision that the Government must secure the backing of Parliament before exercising the Royal Prerogative to trigger the Article 50 Brexit process.
What is more, the ruling of the judges in the case fails completely to recognise the clear instruction given by the people of this country in the referendum that Brexit should be delivered. The constitutional impact of that referendum may be technically advisory but in political terms it gives Theresa May all the mandate she needs to take forward the negotiations to liberate our nation from the suffocating hand of excessive regulation that the European Union has become.
The argument that Parliament’s consent is required in this matter is fundamentally flawed. The Constitution determines that Theresa May is the Prime Minister of Her Majesty’s Government. There has never been any provision that her freedom to act in such matters requires Parliamentary approval, though decisions in the past to seek the approval of the Commons before taking the country to war have set dangerous, if not binding, precedents which Government, of whatever political persuasion, should overturn at the first available opportunity.
The role of Parliament in such matters is not to give or withhold its consent. It is to hold government to account, to expose weaknesses in its arguments, and to inform public policy discussions to achieve better outcomes. It has not previously been suggested in any convincing way that Parliamentary approval is necessary for the exercising of the Royal Prerogative to invoke the provisions of a Treaty to which our country has been signed up for many years. The Supreme Court, to which Theresa May is right to appeal this constitution-bending ruling, must think very carefully before it upholds a ruling that, in effect, gives the courts the right to instruct Parliament how to conduct its business.
That several of her own party have argued that the ruling should not be appealed cuts no ice with this column. The arguments of those concerned are serving of their known opposition to Brexit and their strong and consistent support for Remain. This issue is bigger even than that.
The Supreme Court has been given the opportunity to elevate its own unelected and unaccountable members above the Prime Minister chosen by a Parliament elected by the people. The implications of such a shift in power and balance are huge, and it’s something the nation’s judges have been seeking for many years with the ever more liberal manner in which they have sought to interpret both human rights legislation and European law.
The High Court should never have agreed to hear this case, but having done so it should have made it clear in its judgement that it is for Parliament, particularly the House of Commons, to use its myriad of channels of influence and its vast range of opportunities to challenge and probe, to hold Theresa May to account, but not to be able to block her stated intentions.
That the senior judiciary have long sought to bring to our country the sort of prominence exercised in some other legal traditions, such as the American Supreme Court and the European Court of Justice, is widely known. So is its widespread antipathy to the prospect of Britain leaving the European Union. The Supreme Court needs to think very carefully about what it will do to its own reputation and to respect for our own legal traditions as impartial and apolitical should it be complicit in overturning or blocking the delivery of the will of the people expressed by a significant majority in a referendum in which more people voted to leave the European Union than have voted, ever in our nation’s history, on any other issue.
The implications for our constitution and the way in which we have for centuries conducted our public, political and constitutional affairs are extremely serious.
Whilst your author is delighted that we are to leave the European Union, it is because of situations like this, that this column has never been a fan of referendums. They have no settled place in our national discourse. David Cameron was unwise to call this one, as his career since 23rd June has shown. It brought down his Government and changed the direction of our nation’s future travel.
But, already we are seeing many nations lining up to do trade deals with the United Kingdom; major industries are making it clear that they will continue to invest in the United Kingdom. From financial services and banking to car manufacturers and the digital sector, businesses are making it clear that this country is part of their future plans. But this potential for a great British Business Brexit Boom triggered by the opportunities of global trade post-Brexit are jeopardised by industry’s biggest fear, the fear of uncertainty.
Tell businessmen what the future holds in store in terms of rules, regulation and taxation, and they will shape their investment plans to maximise the opportunities and minimise the threats. Let uncertainty drag on, and they sit on their investment funds until clarity emerges. The last thing our economy needs is judges causing delay and uncertainty.
If the Supreme Court doesn’t want to trigger a huge public, political and economic backlash, it should restore, promptly and with absolute clarity, the right of the Prime Minister to take the decision on when to trigger Article 50, and to deal with Parliament in her own way. That is a principle that goes to the heart of our democracy.
The argument applies, of course, to that other bastion of unelected and unaccountable opposition to our proposed departure from the European, namely the House of Lords, which, should it impede the process of Brexit, risks anger and resentment on an unprecedented scale. In the past, attempts at fundamental reform of that House have been difficult, in part because the wider public has little interest in the internal workings of that institution. But if their Lordships foolishly stand in the way of the direction of the electorate on this matter, clearly expressed in the referendum, the wrath of the people of this country is likely to come down rapidly upon their Lordships heads.
Heads have rolled, quite literally, in the past when elites have positioned themselves as the opponents of the will of the people. Do the Lords of the judiciary or of Parliament want to see such anger released? This column hopes not and that constitutional commonsense will prevail.
This article was first published in The Catholic Universe of 24th November 2016.
Cllr Chris Whitehouse KSG is Chairman of Westminster’s leading political consultancy, www.whitehouseconsulting.co.uk, Secretary of the Catholic Legislators’ Network, a Trustee of the Right To Life Charitable Trust, and a Member of the Isle of Wight Council (Cons. Newport West).