The press quickly came to grips with the most recent constitutional crisis. “Enemies of the people,” screamed The Daily Mail. “Who do you think EU are?” demanded The Sun. The Daily Express was the most forthright, calling its readership to arms with the headline: “Now your country really does need you…”
I’m glad that’s been cleared up. I hadn’t quite realised that a court ruling delaying Brexit was comparable to the horror of the Great War.
So what exactly is the cause of this dire peril? On November 3, three judges ruled that British constitutional law does not allow for the Government to begin the process of leaving the European Union without first passing a law through Parliament. The reason? “The most fundamental rule of the UK’s constitution is that Parliament is sovereign”—meaning that no law passed by Parliament can be overridden by the Government without passing new legislation.
It sounds boring and technical, and really, that’s because it is. It’s the job of the British judiciary to consult legal precedent and rule on the interpretation of Britain’s strange, amorphous constitution. Has Brexit been blocked? No; it will probably take Theresa May longer to begin the process of leaving the EU, but it still seems highly unlikely that a majority of MPs would choose to vote against the will of the people as expressed in the referendum.
So this isn’t a ‘power grab’ by ‘activist judges’ that ‘undermines democracy’. Far from it. Newspapers and politicians lambasting the judges should take care: the separation of powers between the government, parliament and the judiciary is one of the fundamental pillars on which our democracy is founded. The independence of Britain’s courts provides protection for the judiciary, ensuring that judges cannot be fi red should they choose to rule against the government. But it also provides important checks and balances on the Government’s power that protect the rights of us all. Crucially, these do not place limits on Parliament’s sovereignty, which remains supreme—our Supreme Court does not have the power to ‘strike down’ legislation. But the courts do have the power to call into question important procedural errors committed by the government, which is what has happened here.
The government decided, rather belatedly, to defend the independence of the judiciary. This is meant to be one of the primary roles of the Lord Chancellor. Yet the words of Liz Truss and Theresa May—the latter only qualifying her support by saying that she also values ‘the freedom of our press’—have been half-hearted and weak.
That is unacceptable. Freedom of the press is irrelevant, and a cowardly excuse. This Government should vigorously attack the tabloids for seeking to undermine our judicial process.
Perhaps the inherent suspicion of many Brexiteers that the country’s institutions are biased against them is reasonable. Yet, the decision seems technically uncontroversial. Perhaps this is why nearly all the accusations of political bias from pro-Brexit politicians seem to have come in the form of such dismaying and unqualified assertions.