Page 16

Jan Advocate 2017

14 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE tion of “what does Brexit actually mean” was cast as a question of process. As the court stated, “Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law.”8 Perhaps the obvious place to start its analysis, the court turned to the writings of constitutional jurists. The court cited the work of Professor A.V. Dicey, who wrote that the principle of parliamentary sovereignty means that Parliament has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.” Among other things, the court noted: this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law: “The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.”9 Again, anyone with a basic knowledge of the principles of a constitutional democracy (which evidently no longer includes all UK ministers of the Crown) appreciates that the UK is not a direct democracy. It is a representative democracy. Moreover, the referendum in question was not binding on Parliament. It was advisory only. The statute creating the referendum (the European Union Referendum Act 201510) did not contain any language to indicate that it was binding on Parliament or indeed that a vote by a majority of the electorate conferred a statutory power for the Crown to give notice under Article 50. It should be noted (as the court did) that the arguments advanced to the court by all parties were transcribed and made available on the Internet free of charge. Likewise the court’s decision requiring Parliament, and not the government in power, to debate and pass legislation (or not) to effect withdrawal from the EU is available online. It is not a straightforward read for most members of the public. However, in addition to its reasons for judgment, the court issued a two-page summary “provided to assist in understanding the Court’s decision.” That summary clearly states, “it is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide.” A post-truth media (one hesitates to call them journalists anymore) might sell papers suggesting that unelected High Court justices are treasonous or enemies of the people, but this suggestion is belied by a straightfor-


Jan Advocate 2017
To see the actual publication please follow the link above