What does the High Court upset mean for the future of democracy in our land?
On November 3rd the High Court ruled that the government could not leave the EU without statutory permission from Parliament. The UK entered the EU with the European Communities Act 1972, so the government needed to find the authority to overrule an Act of Parliament. Their argument that the Parliament of 1972 intended to confer that authority on them was not founded in any textual evidence within the aforementioned Act, the court found. This led to the decision that only a new Act from Parliament could allow the government to take the UK out of the EU, and that the royal prerogative of the government was not sufficient. This is sure to have significant effects on the health of UK democracy, and not in the way you might think.
Many, peculiarly, see this as an affront to the will of the people. It is argued that Parliamentary involvement, presumably to give democratic authority to the process, is made redundant by the sole weight of the referendum result. Some even go so far as to suggest that Parliament could harm the democratic mandate already given by drawing out an almost-certainly arduous process needlessly. An even more dangerous consideration is the ability of MPs to block Brexit. After all, 479 MPs backed Remain, to Leave’s paltry 158, so a Commons vote on leaving the European Union, even considering the potential political fallout of a Remain vote, is going to be a tense affair. The disparity between the views of the MPs and the views of the United Kingdom is a dangerous presence on this issue.
It is upsetting, then, that this acceptance of the unappetising risk of a blocked Brexit is a legal necessity. Whatever the practical implications of Parliamentary involvement, the voice of our supreme lawmaking authority must be heard. The Crown’s argument in this case, that the intention of the 1972 Parliament was to give the government the requisite authority, was an unconvincing argument dismissed by the judges as lacking meaningful evidence. The UK can only leave the EU if the European Communities Act is repealed, and that can only be done by Parliament. The law is clear.
Though I agree with the decision of the court, I cannot help but be possessed by a number of concerns. That our MPs now have the power to override our decision to leave the EU worries me, though only about as much as the idea of actually leaving the EU. That our model of democracy in the UK allows us only a yes or no answer to an intensely complex issue, with no further say on a decision that is sure to substantially alter our lives. That I can see no positive, or even neutral outcome to the current predicament. Either Parliament votes to block Brexit, a direct violation of the democratic order issued by the people of the UK, or it decides to give the government all the authority it needs, and with it the ability to force an unwanted and harmful ‘hard Brexit’, or it decides to give the government authority subject to further parliamentary approval, which is likely to turn inevitably protracted negotiations into impossible ones. I see no happy ending.
This Article was written by Andy Hodgson (2nd year, LLB Law), in conjunction with Dicta 2017.