Brexit

The Supreme Court and British values have had a good week

It is a wonderful that the UK can have this debate and settle important questions in a courtroom and not on the streets

BY Mark Fox   /  8 December 2016

The UK will leave the EU. The UK’s membership of the European Union will end. Article 50 will be invoked. The overwhelming vote of support for this to happen by MPs though not legally binding gave further very fair political wind to its invocation.

All of these things were always going to, and will, happen. They were inevitable once the result of the referendum was announced. Given the result of the referendum this is as it should be. It is important to establish these two facts before going on to say this – what has gone on at the Supreme Court over the last four days has been right, important and impressive.

Right because we are a nation governed by respect for the law. Law proposed debated and enacted by Parliament – Lords, Commons and signed by The Sovereign. And law that has grown up over time and evolved through precedent, previous judgement and cases. This is the nature of our partly, but mainly unwritten, constitution. The Courts in general and the Supreme Court in particular have a role, required of them by Parliament, to implement and interpret the law as it has been received.

Important because the Supreme Court case is not just about how (not if) Article 50 is invoked but about the wider issue of the use and scope of the Royal Prerogative. The key question being what is the power of the Government to do what it wants and when does it have to seek approval by Parliament.


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Impressive because for four days there has been tough, thoughtful, highly intelligent and knowledgable debate about the issue of the power of the Government – an issue of vital significance to each and every one of us. The debate has been conducted in a rigorous, thorough, sometimes humorous but always punctilliously polite manner.

The Supreme Court is not perfect. No human institution or organisation is. Having only one woman as a member clearly undermines its credibility, for example. However, that it deliberates in a non-party political fashion on conflicting views on pieces of the law and the constitution where there is disagreement thoughtfully and with integrity is clear.

Most of the time it does its work without attracting much attention, though its proceedings and verdicts are televised and available to all. Not since a number of MPs accused of issues to do with their Parliamentary expenses took their cases to it has the Court attracted as much attention – and what attention it has been. The Court, rightly, has displayed no sign of being swayed by external pressure.

The President of the Court made clear at the beginning and at the end of the proceedings what is and is not under their consideration. They are not deciding if Article 50 should be invoked. They are not deciding if Brexit should occur. Both will, and always were going to, take place. The issue for the court is simply whether the Government using historic powers it has inherited can invoke Article 50 or whether Parliament should give approval first.

These powers, called the Royal Prerogative, are used in all sorts of ways. They are used to make all sorts of appointments in the Church of England, the military, the judiciary, the granting of passports, are but a few. These are powers exercised by the Government on authority from the monarch. In our 21st Century democracy it is encouraging that the power of the Government, any government, using the authority of the monarch can be questioned and challenged in a forum where no political or other agenda is pursued. The focus being simply on what is and is not intended by Parliament in its roles as representative and protector of every subject (not citizen remember) of the Crown.

This tension between Parliament and the Crown – because in effect this is what the Supreme Court has been discussing this week – is one we have been debating and working on for centuries. It is a debate we will continue to have. The Article 50 hearing is simply the latest instalment in the ongoing tussle between the power of the Sovereign, as exercised by the Government using the Royal Prerogative, against that of the power of Parliament.

It is a wonderful thing we can have this debate and settle important questions in a courtroom and not on the streets. The Supreme Court and British values had a good week this week.

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