The two Gina Miller cases ensured constitutional principle was upheldby David Allen Green / January 27, 2020 / Leave a comment
Between the 2016 referendum and the general election of December 2019, there was a fundamental tension in the UK constitution between political legitimacy and legal sovereignty. And it was thanks largely to the two Supreme Court cases brought by Gina Miller and others that this tension did not harden into a contradiction.
After the referendum you had on the one hand a narrow but clear majority in favour of the UK’s departure from the EU. In constitutional theory, this result was no more than advisory. But in practice, it was an absolute mandate. This mandatory force was partly because before the vote the government promised in a pamphlet (the distribution of which, ironically, Brexit campaigners condemned at the time) that effect would be given to the result. And it was in part because of how Theresa May construed the result in the weeks following the vote.
The problem was that this extra-parliamentary mandate did not cohere with the doctrine of parliamentary supremacy, where sovereignty derives from the crown in parliament and not “the people.” And so, in vote after vote, members of parliament who personally were against departure voted in favour of it because they accepted the “will of the people” had to prevail. But for those in government, even this wasn’t enough. They quickly appointed themselves as tribunes for this popular will and sought to remove any parliamentary control and supervision of it.
Anything from MPs that would delay, frustrate or merely shape the form of Brexit was intolerable to ministers heady with their sense of popular empowerment. This was a profound if opportunistic power grab by the executive, which could have distorted the UK constitution for generations.
But the post-referendum government failed to get away with its assaults on parliamentary control. To some exent this was because of the deft procedural genius of Speaker John Bercow and also the patient work of wise parliamentarians, such as Dominic Grieve and Yvette Cooper.
The main reason, however, was the two cases that ended up in the Supreme Court, brought by Gina Miller and others. These were brilliantly argued, most notably by David Pannick, but the statue that needs erecting…