“The People’s Will Trumps the Rule of Law” is the cry of the fascist. The frontpages of much of today’s British press are a disgrace. That the three serious, dull, middle aged men who decided yesterday’s Brexit decision should be branded “Enemies of the People” by the Daily Mail would be laughable, if the damage to our polity were not so lamentable.
What is the kind of reasoning that a judge must use in order to decide a case of great political importance, such as the Article 50 case? The substantive issue was whether it would be better if Parliament had a vote before Article 50 was invoked, and the UK’s departure from the EU became inevitable. On that political question, I think the case for a vote is strong. The referendum was merely advisory. We live in a representative democracy. Decisions of such importance should not be taken by the government alone. I am also I find, somewhat to my surprise, a passionate Remainer. I hope that every opportunity for the issue to be debated and reviewed is explored
The argument I have repeatedly given as to why the government can invoke Article 50 without Parliamentary approval is not of that kind. It is about the technical interaction of international and domestic law, and the words of section 2 of the European Communities Act. It is, frankly, a bit boring.
One argument against it is that it is formalistic (see here, here and here). Surely, so the thought goes, the judges should base their decision on whether a Parliamentary vote would be a good or bad thing in substance, and not on the dry words and their meaning.
I am English, but one of my legal heroes is the great Australian judge Owen Dixon. On taking his oath of office as Chief Justice of the High Court in 1952, Dixon addressed the question of how he, an unelected judge, had the legitimacy to decide the issues of enormous constitutional political importance that commonly arose in the (relatively) young new federal society of Australia. Dixon said
Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.
Dixon was right.
That the government lost the Article 50 case is readily explicable based upon how it was its own lawyers presented its case. I think the result is wrong, but it is not wrong because a group of judicial revolutionaries have abrogated power to themselves.
We are governed by rules, not by men.