Photo: SOPA Images/SIPA USA/PA Images

Brexit is happening, but the constitution is saved

The two Gina Miller cases ensured constitutional principle was upheld
January 27, 2020
“Miller endured appalling abuse, but stood her ground—sticking with her cases even as other litigants were bullied into giving up." Photo: SOPA Images/SIPA USA/PA Images 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 in Parliament Square is to Miller herself. Not a professional politician, merely a brave citizen with an acute understanding of how her country’s constitution was meant to work and a keen sense that something was just not right. She endured appalling and racist abuse, but stood her ground—sticking with her cases even as other litigants were bullied into giving up.

The two cases were about the fundamental rights of the executive and the legislature. The first was about who had the ultimate right to authorise the withdrawal notification under Article 50. The government insisted that this fundamental change could be brought about by mere prime ministerial fiat. The case was not about stopping Brexit—the parliamentary numbers ensured it wouldn’t be thwarted—only about who could start it: the elected legislature, or a prime minister using prerogative power. The Supreme Court sided with Miller and Pannick and so legislation had to be passed to authorise the notification. The referendum result could not be used by a prime minister to subvert the proper role of parliament.

The second Miller case, which was brought alongside MP Joanna Cherry’s Scottish case, was about whether the government could, again using the royal prerogative, suspend parliament for five weeks before the (then) expected departure date of 31st October 2019. This would have meant that at a critical period there would be no parliamentary supervision of the executive whatsoever. And, had MPs not acted quickly, this could have also meant a no-deal Brexit, against the will of parliament.

The Supreme Court again said that the government could not undermine parliament and escape parliamentary accountability. A unanimous 11-judge panel ruled that it was not legally open to use prorogation for this purpose without compelling reasons (and it should be recalled that the government remarkably failed to provide any reasoning for the prorogation in a witness statement, no doubt because of the pain of perjury).

Neither Miller case was directly about stopping Brexit, despite the hopes of many of those who supported the litigation. The cases were instead about how Brexit would happen, which elements of the state were to be engaged, and ensuring that the legislature was accorded its correct role. And contrary to the complaints of government supporters, the cases were not about judges somehow overreaching themselves, but about stopping the government excluding parliament.

There were many other legal challenges brought, often of far lesser merit. And to an extent, all of the court cases (and the various regulatory investigations) were unhelpful distractions for the Remain cause. Too many Remainers looked only to the courts and regulators to put right the perceived wrong of the referendum result. But Brexit was ultimately a political issue not a legal matter. And in the end, no legal case delayed or frustrated Brexit, and this is as it should be.

The Miller cases, however, did make a crucial difference. As we settle into the resumption of comfortable majority government, there will perhaps not be the same immediate temptation for the government to sideline parliament. Normal political service may now be resumed. But this was not inevitable, and had the government won the two Supreme Court cases instead of Miller and others then we would now have a constitution with an emboldened executive nonchalant about avoiding parliamentary control.

When it really mattered, the courts were unafraid to assert the fundamental principle of parliamentary supremacy. Miller, Pannick and their many supporters may not have stopped Brexit. But they saved the UK constitution.