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6 January 2017updated 16 Sep 2021 4:23pm

Populism doesn’t have to be anarchy

The government’s intention to enact Article 50 without referring to parliament was an affront to our constitution

It has been widely reported that my case – R (Miller) versus The Secretary of State for Exiting the European Union – is a Brexit case but this misrepresentation misses the fundamental constitutional issues that it seeks to defend.

The most fundamental rule of the United Kingdom’s constitution is that parliament is sovereign. Today this translates to the constitutional cornerstone that the government of the day, acting as agents for the Crown, cannot by exercise of prerogative powers, override legislation enacted by parliament.

Set within the context of rising populism, I believe the defence of a proper legal process is an important point for this year’s intake of politics students to consider. This is what I fervently believe in and why I took my case to court. To understand the constitutional issue at stake, it is important to look at the political and legal background. On the 23rd June 2016, the country voted to leave the EU.

The mechanism for any member state to withdraw from the EU is Article 50 of the Lisbon Treaty. The formal withdrawal process is initiated by a notification from the UK to the European Council. The EU and the UK will then have a two-year time-frame to agree on a withdrawal package.

After that, membership ends automatically, unless the European Council and the UK agree jointly to extend the period. However, a major weakness of Article 50 is that it is not substantive in its content or conditions, and only concerns itself with procedural requirements.

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Article 50 (1) states: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” The government indicated they intended to bypass parliament and trigger Article 50 using a Crown prerogative power.

The question raised by our case was whether a government minister, the executive, could trigger the process of withdrawing the UK from the EU without being authorised to do so by an Act of Parliament.

Our case argued that once Article 50 is triggered, the legal consequence of the UK withdrawing would inevitably lead to citizens’ rights being diminished or removed, not least the four freedoms of the free movement of goods, people, services and capital over borders, could cease, depending on the exit package negotiated by the UK government.

My legal team and I believed that as a representative parliamentary democracy, our constitutional requirement is that only parliament can grant rights, and only parliament can take them away.

As no-one appeared to be certain in respect of the fundamental constitutional question about where power lies, and this was the issue my legal team and I were asking the courts to resolve. We were not arguing that the result of the referendum was itself a “decision” that the UK should withdraw from the EU, which would satisfy “constitutional requirements”.

Nor were we suggesting that the judiciary can or should decide whether the UK should withdraw from the EU. The contested issue was whether the government, using prerogative powers, had constitutional authority to make that decision without parliament.

The residual Crown prerogative power that exists on the international plain was about to be used on the domestic plain, which would not just undermine parliamentary sovereignty, it would also set a dangerous new precedent.

Our challenge fully accepted that notification itself is likely to be a matter for the executive, acting on parliamentary authority conferred by statute, and having regard to the terms of parliament’s decision. The court was not being asked to interfere with parliamentary procedure.

The question for the court was whether a parliamentary decision, in the form of primary legislation, is constitutionally necessary before a minister can trigger the process of withdrawing the UK from the EU by notifying the European Council pursuant to Article 50(2).

Our submission was that the royal or Crown prerogative is a residual power reserved for the conduct of international relations, and the making and unmaking of treaties. In other words, prerogative powers end where domestic law begins. Consequently, the executive does not have prerogative power to “decide” that the UK should withdraw from the EU; nor can any ministers lawfully “notify” the European Council of any such decision without parliament’s statutory authority to do so.

If the court was to rule in the government’s favour, we would be beginning a new, I believe, autocratic phase in our country where a constitutional legal precedent would have been established that any executive of any government could bypass parliament, sit behind closed doors and decide which rights ordinary citizens keep or lose.

In terms of the effects of leaving the EU, the short-term reality is that the Conservative government would take on all EU law and rights, in acquis, and have the power to decide amongst themselves which to strip away and which we keep. A constitutional precedent set by a government taking such drastic action without consulting parliament is an even larger political issue for our country, than whether Britain leaves the EU.

As we enter an age of populism, political challenges clearly arise for our society. The danger is that the baby is thrown out with the bath water. Fundamental principles of our constitution, such as the rule of law, the separation of powers between the government, the peoples’ representatives in parliament and the independent judiciary provide the very framework within which populism can express itself and indeed flourish. But populism is not anarchy, and whilst it is easy to see why many wish to kick against the system, it is less clear what changes for the better are being proposed to that system.

The solutions will inevitably be political ones. One key aspect of my Article 50 litigation is that so few people have a clear understanding of what our constitutional arrangements are.

For students of politics (and politicians) the lesson is clear; politics does not exist in a vacuum, and it is our constitution which is the glue that keeps our society together, even when populists may wish to change the nature of that same society.

This article originally appeared in the New Statesman’s Political Studies Guide for 2017.

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