By Opinions Editor Lawrence Dushenski
It is not everyday that matters of constitutional law make their way onto the headlines, and it is also not everyday that Members of Parliament openly criticize and question a High Court ruling. But when the three “out of touch” High Court judges ruled last week that Theresa May would not be able to trigger Article 50 without a parliamentary approval, it sent the click-bait headline writers across the UK into a frenzy.
Many of those who voted Leave did so in an attempt to regain a semblance of British sovereignty. They were tired of having policy and rulings handed down to them from Strasbourg and Brussels. Leaving the European Union meant that the United Kingdom would be able to set their own policies, and be subjected to only domestic law.
But part of the irony surrounding the uproar this past week is that what so many of those that voted Leave wanted, came to fruition. The High Court made their ruling, and while it has been leapfrogged to the Supreme Court for an appeal next month, it appears unlikely that the ruling will be overturned. This is the power of the domestic courts to rule on domestic issues. They do not have to now turn to the European courts to appeal, as the power is just where all those Leave voters wanted it to be, right there in the Supreme Court.
The entire Brexit exercise from the get go has taken us to a place that we are losing touch with the basics of constitutional law. There are checks and balances in place between the institutions of government, and they are set in place for a reason such as this. To prevent one branch, the executive in this situation, from exercising significant power, free from any oversight.
We all understand that the popular sovereignty brought us to the place that we are right now. David Cameron elected to allow the issue to be decided via referendum, and then he quickly exited stage left once his Remain campaign failed. When none of the presumptive candidates elected to take his seat, Theresa May fell backwards into the position of Prime Minister. She is now in charge of this mess, and the first few months on the job have been nothing short of a disaster.
Parliamentary sovereignty is a topic that most people have not discussed since primary school, but it has come to the forefront of discussion in recent months. How much power should the elected Members of Parliament hold vis-a-vis the unelected Prime Minister?
Liz Truss, the current Lord Chancellor, was tepid in her support of the judiciary following the ruling earlier this week. As the individual in charge or the courts, prisons, constitutional affairs and probation, it would have been nice to see a more supportive response in favor of those that she represents. However the issue is clearly that Truss is also an MP, and apparently lacks the backbone to stand up to Theresa May on behalf of the judiciary.
The entire Brexit process has become nothing short of a mess. There is no constitutional crisis. There is certainly no reason to call some of the greatest legals minds in the land “enemies of the people”. This is nothing less that hyperbolic vitriol aimed at further dividing the nation at a time that they need a unifying force.
Has the Brexit process, however far along that we may currently be, been a democratic process? Well the gut reaction would be to say that surely it has been, as the people voted on the matter and their voice should be put into action by those in government. But that is not always exactly what democracy means.
Referendums are rare situations in which direct democracy is put into place, as we are much more familiar with representative democracy. The validity of direct democracy in the first place immediately came into question following the Brexit vote when interviews were conducted with countless individuals who voted Leave, only to question the very next day what exactly that meant. Times like this are when it becomes evident that representative democracy is a much more effective system for coming to well thought out decisions in a democratic nation.
To come back to the issue of Theresa May and democracy. While the parliamentary system that is in place in the United Kingdom is understandably one in which the leader of the party that holds the most seats in the House of Commons is the Prime Minister, and there is not a direct election for an individual, but rather a party, the validity of her position as Prime Minister as such a time is something that has gone largely overlooked.
While it is certainly not the first time, nor will it be the last, that a sitting Prime Minister steps down and the ruling party must name a new leader internally, to do so at such a time of uncertainty was nothing short of irresponsible on the part of Cameron. While he was surely licking his wounds after suffering a significant defeat, it would have been respectable of him to stay in power until the entire Brexit process was completed. Instead he simply vanished into the night once he lost the referendum. No accountability for the mess that he created and no leadership at a time that the country needed it the most.
Finally, to openly question and ridicule a judicial ruling, saying that it is counter to what the people want, is again an affront to democracy. The High Court judges did not say that Brexit will never happen, they simply said that the incredibly complicated matter should be sent to a parliamentary vote before Article 50 can be triggered.
It has been a sad week for democracy in the United Kingdom, and the entire Brexit process has highlighted just how far we have come from a true separation of powers in this apparent parliamentary democratic system.