Gina Miller may have mischievous intentions but her legal case will actually reinvigorate the Commons

Gina Miller may have mischievous intentions but her legal case will actually reinvigorate the Commons

David Abulafia is a co-author of Triggering Article 50: Courts, Government & Parliament, published this week by Politeia, of which this is an edited extract

No government in a country that regards itself as a democracy can simply ignore the statement of popular will that was made on 23rd June. At the same time, it is true that the majority was not enormous; this was no landslide, and, again, no government in a democracy can wisely ignore the substantial number of people who voted to stay in the EU, even if we can reasonably conclude that very many of them are Eurosceptic to quite a high degree, and few of them are enthusiastic Europhiles.

These difficulties are compounded by the simple fact that the majority of MPs and peers wished Great Britain to remain within the EU, even if a good many, including the new Prime Minister, have indicated that they intend to honour the outcome of the referendum; indeed, a constant refrain has been the wish to make Brexit work, picking up the argument that Great Britain can flourish as a hub of world trade that looks outwards to all continents, not excluding Europe.

December’s vote in the House of Commons calling on the Government to invoke Article 50 by the end of March was a vote on a resolution and had no legislative force; but it clearly demonstrated that Conservative MPs and a considerable number of Labour ones who would have preferred to stay within the EU understood that there was no point in waving the banners of a defeated army of Remainers.

Saying that is not to deny the mischievous intentions of those [Gina Miller et al] who brought the case against the Government: the aim was not just to ensure that Article 50 could not simply be invoked by use of the royal prerogative; it was clearly part of a campaign to render the decision to leave the EU politically and constitutionally impossible, one way or another. Such attitudes can also be identified in calls for a second referendum. But, as has been seen, to overturn the decision made on 23rd June would count as the highest form of political irresponsibility.

The question that then arises is the constitutional force of the decision made by the British public. It has been suggested that we are witnessing a secular shift in the locus of sovereignty away from parliaments and towards popular opinion, away from representative democracy and towards reliance on the will of the electorate.

Yet what has evolved in Great Britain, and has been passed on to parliaments across the world, is representative democracy; in other words, sovereignty lies in a parliament of periodically elected representatives who are trusted to make political decisions and to pass laws.

Although fears have been expressed that the Supreme Court in London, or indeed the High Court before that, might appear to be meddling in politics, the rather tedious pleading in the Supreme Court has shown, if anything, that Great Britain places real value on the principle of the rule of law. There are legal questions that need to be answered, concerning the effect of Brexit on the rights of British citizens within the rest of the EU, and concerning the nature of the royal prerogative. They are being addressed within the framework of the Common Law, a legal system that in many respects sets Great Britain apart from most other European states.

However, I am considering here not the very precise legal questions before the Supreme Court, but the argument that the vote in favour of Brexit was intended to restore the sovereignty of parliament, and that it is therefore appropriate for parliament to play a significant role in the process of Brexit: agreeing, as has already happened, that Article 50 will in due course be invoked, expecting to have the right to criticise the terms that are agreed, and most definitely having the exclusive power to revoke the European Communities Act of 1972.

If anything, this will re-invigorate the Commons after years during which Prime Ministers have not always paid as much attention to parliament as they might have done. In fact the sight of serious deliberations in parliament about these matters should awaken the Brussels Eurocrats to the fact that they are not simply negotiating with a government in the hope that it will become pliable – as in effect happened with the terms David Cameron brought back from Brussels. The backing of parliament gives added strength to the British government in its dealings with sometimes obstreperous champions of the ‘European journey’.

My surprising conclusion is that Gina Miller and her colleagues have actually done a favour to the Brexit process. After a referendum campaign in which arguments contained more bluster than substance, and during which some of us were told not to use the word ‘sovereignty’ as it is rather long and far too abstract, we need some clarity about the limits of the royal prerogative, about the nature of parliamentary sovereignty, and about the nature of sovereignty in general in an era of globalisation.

Those of us who saw the restoration of that sovereignty as a noble aim will surely understand that a series of parliamentary resolutions and a body of legislation concerning Brexit provide the best means to make parliament sovereign again. Whatever the legal arguments, it is morally right that a parliament that has now accepted the reality of Brexit should have the final say.