Theresa May stated that the Brexit process was about the government carrying out what it believed the people wanted. Gina Miller stated that the Brexit process was for Parliament to decide. Fourteen of the United Kingdom’s most senior judges listened, and while eleven agreed with Gina Miller, the other three did not agree with Theresa May. They stated that the government could only trigger Brexit without fresh legislation because Parliament had provided earlier authorisation for the government to pursue Brexit, if it is so wished, in the original 1972 European Communities Act.
The reason for this overwhelming win for Gina Miller was that eleven judges, three in the Division Court and eight in the Supreme Court, thought the case revolved around a simple constitutional question.
Could the executive put in question a considerable body of law, realistically over 30% of all UK law, which had been sanctioned by Parliament?
And they rightly said ‘no’. We do not live in a dictatorship. The tenor of the majority decision was also that any Parliamentary authorisation of the executive to abrogate rights legitimated by the former must also be very clear. And that seems right as well in a parliamentary democracy. Parliament should only allow others to curtail rights sanctioned by it in the most explicit language.
Yet was this what Theresa May and David Davis were concerned about? Turning the United Kingdom into a dictatorship?
Of course not. The judgment went the way it did because it could not take into account another important constitutional narrative.
The lurking power of this other narrative lay in the contrast between the legal and political effects of the referendum.
Legally, not even the government lawyers argued that, by itself, the referendum result enabled Theresa May to trigger Brexit. It was seen as legally irrelevant. This can be blamed, in part, on the 2015 legislation which provided no detail on the consequences of the referendum result.
Yet it is doubtful whether most British citizens saw the force of the Brexit referendum as resting in some statutory detail. Its authority lay for most in the power of direct democracy. They believed that a referendum carried a truer reflection of the citizenry’s voice than a statute enacted by a representative institution such as Parliament. This poses grave questions about whether the United Kingdom can be viewed simply as a parliamentary democracy, or whether it is moving to a mixed democracy in which referenda and statutes both have a role to play.
Resolving this question was beyond the Supreme Court’s pay grade, and this was the reason the judgment (rightly) went the way it did.
However, there are four reasons to suppose that the United Kingdom might be moving towards the latter.
First, the Brexit referendum result indicated that there are issues on which Parliament poorly mediates the preferences of voters. The view of the overwhelming majority of the MPs as well as the historic position of all the parties represented in the House of Commons was that the United Kingdom should remain a member of the European Union. This flies not merely in the face of the referendum result, but a very significant minority of British citizens always opposing membership.
There is no reason to assume that this poor mediation of voter preferences is confined to EU membership. It would be interesting to see, for example, how British voters would vote on climate change commitments and corporate taxation, and whether this would correlate to existing party positions.
Secondly, the referendum indicated that the simply holding a referendum generates considerable power in its own right. Does anybody doubt that if the Scottish government held a referendum without statutory authorisation on Scottish independence and an overwhelming majority of Scots voted for it that independence would not follow? All parties have, for example, committed to Scots being able to determine their own system of government. A rest of the United Kingdom government would have to put tanks into Scotland in defiance of that own commitment to restrict any move to independence. It defies credibility.
If this seems an extreme example, what would be the response of the British government if the Mayor of London holds an informal ballot on whether London should have a similar level of devolution from central government as Wales? If the result was positive, it would have be very difficult for Parliament to ignore it completely.
Thirdly, constitutional statutes, statutes with a greater force than other statutes and which cannot be subject to implied repeal, now have a very established place within the United Kingdom. They include the legislation on devolution, the Human Rights Act and, almost certainly, the Great Repeal Bill when it becomes an Act. Whilst British courts have been quick to recognise these, the circumstances surrounding their coming into being and termination are murky. It cannot be statutes simply acquire this status simply because a judge thinks they are important.
There is a case for referenda wherever a constitutional statute is being considered or where it will be significantly amended or repealed. The Human Rights Act 1998, therefore suffered from a lot of debate about the values it espoused and how it would recast the relationship between the judiciary and Parliament. If it is to be replaced by something which is deemed to reflect British values better, then surely it makes sense to have a wider public debate about whether this is the case and what these values are.
Finally, if there is a move to greater decentralisation within the United Kingdom, power will be transferred to persons or institutions without a long-established pedigree of representative government and where there may be anxieties about the ability of local institutional processes to curb them. There may also be questions about whether their powers have been fully thought out. In both cases, referenda may be useful instruments as either a check on power by opponents or as a gauge for what local citizens want.
Brexit may lead to a number of questions about our constitutional settlement which go not to the power of Brussels or Luxembourg but to the distribution of power within the United Kingdom. The relationship between direct democracy and parliamentary democracy may well be one of these. The case of Gina Miller suggests a strong case for considered reflection on this relationship by the different institutions of government rather than for its development being shaped by mere casuistry.
By Professor Damian Chalmers, National University of Singapore and LSE.