Article 50’s Constitutional Conundrum

PLMR consultant Nicolas Clark looks at Brexit from a constitutional perspective

When Brits talk of their pride in the constitution and its worldwide pedigree they hark back to the signing of Magna Carta in 1215 and the Bill of Rights in 1689. Indeed the ‘rule of law’ as we know it finds its roots tied to these milestones in our history being a long-standing principle of the way the country is governed. As students of politics and of law will know the two pillars of the British Constitution are both the rule of law and parliamentary sovereignty, aptly established by A. V. Dicey in his Introduction to the Study of the Law of the Constitution (1885).

Our judiciary is widely credited with its strong independent stance often in the face of the will of the government. We expect our judges to do their job without being influenced, for the large part, by emotional arguments but to take the facts as they find them and apply them to their expert understanding of how they stack up in the eyes of established legal precedent or statute.

Why then, when the judges do their job, and establish that even Brexit must follow the law of the land are they vilified in the press? These are not “Enemies of the People” (Daily Mail) but protectors of our society. If judges do not hold even the government to the laws that bind them then what democracy are we fighting for? We need only look across the pond to our American ‘cousins’ to see how the United States Supreme Court overturns laws and executive decisions deemed unconstitutional with regularity (for more on this see The Federalist, CNN, and Politifact).

Whilst the Prime Minister says that triggering Article 50 won’t be delayed it is hard to see how she will do so while averting a constitutional crisis. The High Court may well be a stop on the way to the Supreme Court but this is not a short route. Compiling the case, securing time and debating the matter before it is even deliberated and judgement given is a lengthy process. A vote in Parliament will also cause delay with the drafting, tabling and debating of legislation being time consuming. All this before a vote takes place that would see MPs torn between their own positions on Brexit and the proportion of pro-leave voters in their constituencies. And we haven’t even got on to the Lords! The un-elected Lords, with its strong pro-remain make-up topped off by a tight cohort of Lib Dems, the only workaround for which being the creation of circa 1,000 new Brexit Lords. However, the creation of so many new Lords would make reform of that House unavoidable and could bring a Conservative Government further headaches down the line as they vote against future bills.

Only weeks ago the notion of an early General Election was dismissed out of hand. However, the prospect is now more real than ever. It is widely known in Conservative circles that the Parliamentary Candidates List was dramatically culled shortly before the referendum and there has been a recent impetus to renew the available stock by getting potential candidates through the Parliamentary Assessment Board.

An election would refresh in the minds of MPs where their constituents sit and give Theresa May her own mandate for forging on with Brexit. For some pro-remain MPs this may be their moment to leave Parliament, the only alternative being to remain and ‘put up’, as evidenced by the resignation of Stephen Phillips QC MP, a barrister by background, at the time of writing. As ever the road to Brexit is by no means clear and we can surely expect more delays to come for the Brexit train; these are only the first autumn leaves to fall on its tracks.