Contrary to Peter Pan, wishing hard enough does not make a thing true – and no matter how much some may wish it were so, law and politics cannot be separated. The recent High Court judgement (in the Miller case) provides a clear example of this. In the case the High Court held that for Brexit (UK withdrawal from the EU )to proceed, the Government would require the authorisation of Parliament, and could not trigger Article 50 of the Treaty on European Union (TEU) through the exercise of prerogative power.
Reaction to the judgement has been striking in two respects. On the one hand, right-wing media outlets have responded by condemning the individual judges involved in the case, in one instance going so far as to brand them ‘enemies of the people’. Such rhetoric is, of course, dangerous and reprehensible. But, it should be said, no less and no more so than when the same right wing outlets demonise migrants, welfare claimants, or trade unionists (as they routinely do).
Another line of responses to the judgement, mainly, but not exclusively, from people who oppose Brexit in principle, and have never accepted the outcome of the referendum on the issue, has been to celebrate the decision as a triumph of law (good) over politics (bad). This is crystallised in an image (below) tweeted by the Financial Times, in which one of their readers celebrates the triumph of law over politics:
The sentiment expressed in this tweet, and elsewhere, echoes a central point that the judges in the case were at pains to make, namely that the case was a matter of law not politics.
As the judgement states, the judges considered it important to ’emphasise at the outset that the court in these proceedings is only dealing with a pure question of law’. The specific legal question being whether the ‘government can use the Crown’s prerogative powers to give notice of withdrawal’ from the EU without Parliamentary approval. The judges go on then to provide a rousing defence of an absolutist conception of the sovereignty of Parliament (the idea that, under the UK Constitution, only Parliament can make, change or unmake law), and in light of this conclude that the government must receive authorisation from Parliament before triggering Article 50 TEU.
The effect of this judgment is to disrupt the Government’s stated plan to proceed to trigger Article 50 by March next year- although a successful appeal to the Supreme Court will, in principle, allow the Government to see this through. In terms of the central constitutional issues decided in the case, responses have ranged from glowing endorsement (particularly from people opposed to Brexit), to a more nuanced take, which notes that the self-confident conclusions reached by the court are ‘highly contestable’.
Rather than entering into those debates here (safe to say that the observation that the court’s reasoning is contestable is putting it mildly), I want to focus on the central claim made by the judges in the case, and many who have lauded the judgment, that the case concerned a ‘pure question of law’ and was, therefore, not political.
In a simple way, this is nonsense. The case was taken by individuals who oppose the UK’s withdrawal from the EU in the hope that a sufficient number of similarly disposed parliamentarians will, if the matter is put to them, reject the Brexit vote. In effect, the case, from the perspective of the applicants, is not about the abstract vindication of the dignity of Parliament, but is about trying to win the Brexit debate by other means. This much can be gleaned from the effusive reaction of Polly Toynbee and others, urging Parliament to now do its duty and scupper Brexit.
With respect to the judgment itself, we need to be very clear that a ‘pure question of law’ is a lot like a unicorn: everyone knows what it should look like, but nobody has every actually seen one. In deciding any case, judges must, whether they will it or not, engage in political/moral/normative assessments of the facts and legal material before them. Of course it is a central principle of legal formalism, and of liberal legalism, that law and politics can be separated one from the other, but the reality is quite different.
As Lawrence Friedman once put it, the ‘problem with “law” is that it cannot be unambiguously defined; it cannot be specifically marked off from the rest of the social world’. Likewise, judicial decisions can never be purely legal, but are always, in some broad sense political and ideological. The problem, of course, is that judges must make political and ideological judgements and choices in a discourse and practice which denies them any such freedom (for extensive exposition on this tension see Duncan Kennedy and others).
The central tenet of legal formalism and liberal legalism is that ‘the law is the law’ – rational, objective, clear; unlike the messy, subjective terrain of political debate. The law protects us (and our democracy) from ‘bad’ political judgements, but at the same time the law and legal decision-making remains agnostic as to the substance of decisions properly taken in the political realm.
The idea that the judges in the Miller case wanted to convey is that the outcome of the case is determined by the law, and not by their subjective preference as to how it should be decided. As a collection of short responses to the judgment show, this is false necessity in its purest form, as the case could just as easily have been decided the other way, and that, too, would be entirely consistent with UK constitutional law.
Looking at the judgment, what is striking is the absolute terms in which the court assert the sovereignty of Parliament, and make this the basis for their judgment. It is noteworthy, in this respect, that two of the three judges (Sales and Etherton) have in recent years written, extra-judicially, in support of the new human rights regime in the UK. A regime, which both acknowledge in these extra-judicial writings, re-frames the nature of parliamentary sovereignty and, in certain respects, limits it.
Now, it may be that limiting parliamentary sovereignty is good, and that increased protection of human rights and legalisation of the UK constitution (with an expanded role for the courts) is also desirable, but these are separate matters. The point here is that two of the judges that decided a case on the basis of a near absolute conception of parliamentary sovereignty, have also, in the recent past, expressed views that are at variance with such a strong defence of parliamentary sovereignty.
All of which is to say that in the Miller case, they could have, consistent with both UK constitutional law and practice, and their own previously expressed opinions, adopted a view of parliamentary sovereignty which was less exacting, and, in turn, could have decided the case in a different way. Instead, the judges made a choice, and opted for the stronger characterisation of parliamentary sovereignty, which has had the concrete political effect of disrupting the Brexit process, and may, if the hopes of anti-Brexit campaigners bear fruit, lead to Parliament scuppering (or at least fundamentally undermining) Brexit, as such.
What’s important to bear in mind here is that opposing Brexit is a legitimate political stance; and thinking that Parliament ought, as a matter of good democratic practice, have a say in triggering Article 50, or approving any final Brexit deal, is likewise a perfectly defensible position. What is unhelpful is to cast these political and ideological positions, as objective, ‘purely legal’ requirements.
There are, in the end, no purely legal matters. There are political and ideological matters resolved through legalistic discourse, but this shifting terrain does not alter the fundamentally political nature of such questions.
In The Half Light 