In June 2016, Jeff King, Professor of Law, UCL and Nick Barber, Associate Professor of Law, University of Oxford, argued that parliamentary approval was required before Article 50 could be triggered. At the time, their arguments were (wrongly) dismissed by various politicians and constitutional experts. Here, they present a rigorous and legally dense defence of the High Court’s recent decision that parliament must give its approval before the government can trigger Article 50.
Miller v Secretary of State for Exiting the European Union has stimulated quite a bit of debate. Some criticism of the decision has been well-informed and thoughtful, whilst some of it has been, to put it charitably, less worthy of engagement. In this post we respond to what we view as the strongest arguments against Miller, taking account of the Government’s written case for appeal. We discussed the reasoning used in the case in an earlier post written with Tom Hickman, and will not repeat that explanation here. This post assumes knowledge of that earlier piece, which was written with the lay reader in mind. The present piece, more legally detailed, is necessitated by the quite subtle replies to the argument in that original post and to the judgment in Miller.
Reflecting on the government’s recent loss in the High Court, Albert Weale, Emeritus Professor of Political Theory and Public Policy, UCL, explains that the case brought to the fore a debate about which form of democracy is most legitimate: plebiscitary or parliamentary. Giving an overview of the two forms of democracy, Weale argues that plebiscitary democracy cannot be the basis of legitimate government. He notes that the High Court asserted the principle of parliamentary sovereignty as a way of limiting the ability of the government to act in an unaccountable way.
When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?
Donald Trump was the first US presidential candidate to campaign against free trade since the Great Depression. Although the finer details of Trump’s trade policy are unknown, Fabian Bohnenberger and Christian Joerges of the Hertie School of Governance, argue that it will probably have a significant impact on the future of international trade. They note that the uncertainty will incentivize US partners to look for alternative markets and that global free trade and open markets could be undermined.
Donald Trump’s astonishing election victory Tuesday night shows the appeal of populists who give voice to the anger of the real and self-perceived losers of globalisation. Rejecting the standard view that countries benefit from free trade, he argued that elites either blundered or conspired to send jobs out of the United States, while leaving “millions of our workers with nothing but poverty and heartache.” Electoral convenience or not, no candidate for either main US party since the Great Depression has campaigned as fervently to roll back free trade. The election of Donald Trump amounts to a revolt against economic globalisation in a nation that has long been its leading advocate. This adds to deep uncertainty about the future of global trade, which had already suffered a blow with Brexit.
Recent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell of the UCL Constitution Unit write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.
Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.
By 23 June, Vote Leave had 620.9k followers across its social media platforms, versus Stronger In’s 595.8k – or 51.9% versus 48.1%, not too dissimilar from the final result. Andre van Loon, Research & Insight Director at social media agency We Are Social, discusses the divergent social media strategies adopted during the referendum campaign. He also notes that the relative online silence today is somewhat surprising and poses unique challenges for researchers and social media analysts.
Now this is not the end. It is not even the beginning of the end. but it is, perhaps, the end of the beginning.
– Winston Churchill