On the morning of the 24th January 2017 the supreme court gave their verdict regarding the triggering of Article 50. The fact that it had to go to them in the first place (with some thanks to Gina Miller) is owing to a quirk of our political system. For when is a democracy not a democracy? Answer: when the democracy in question is the UK. The situation is such an unutterable mess for various reasons. But the supreme court decision has been made and parliament will now decide the nature of Article 50 and the process of Brexit. That much we do know.
So what is the nature of this mess, and what does it have to do with democracy? The whole Brexit farrago is a typical piece of British make-do-and-mend. We have no written constitution, so in the event of an unexpected Leave victory no one actually knew what do to next, especially David Cameron, the man who got us into this mess in the first place. But he left the scene of the crime as soon as he could (the US lecture circuit proving just too attractive).
If he’s counting his money he doesn’t have to think about the disaster he caused. So let’s just go back and look at the thing that puts such a stain on his already stain-filled political record. The referendum was not legally binding. It was advisory. This is just the start of the troubles. Because some MPs have said publicly that it was legally binding. There is also something called the European Referendums Act 2015, an obscure little thing which just largely states that there should be a referendum. Of course, the non-binding nature of this is too much for the Tory press (cue: middle England outrage and many red faces in the Shires and elsewhere), but the hotch-potch nature of our ‘democratic system’ is just being adhered to.
This is still too much for Mail and Express readers, who happily turned on their Eton chum Cameron when he voiced his support for gay marriage, and who demand, in their self-entitled way, that we float away on the good ship Britannia from the rancid shores of the EU as soon as possible, which to them was about six months ago. However, the actual referendum leaflet did specify the following: “This is your decision. The government will implement what you decide.”
Those tiny sentences are the things that have the Brexit brigade spitting red, white and blue feathers. And the High Court’s verdict back in November was that the referendum wasn’t legally binding because of “basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy.” But, as legal experts would have it - the people are not sovereign.
So if we’re not sovereign, then what is? And by what means can the will of parliament be bypassed in order to instigate the will of the sovereign-less people? Well, the bypassing in question is a rather large slab of statute called the Royal Prerogative.
The Royal Prerogative is so authoritarian and anti-democratic it’s a delicious irony that democracy-loving Brexiters carp on about it so much. More people should be aware of the Prerogative, because it essentially a tool for making sure you count even less than you already do in your sovereign-less state.
An internet search will tell you that “the royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.” So it’s not exactly a feast of openness, accountability and democracy, and yet this centuries-old ‘law’ is still part of our legal framework.
These power conferred by the prerogative have been transferred directly from the monarch to the prime minister and don't need the approval of parliament, effectively shutting out the British people from important decisions. And it can only happen because we have a monarchy. However, that’s a topic for another article.
So in many ways, the supreme court’s decision to throw the Brexit ball back to parliament has to be seen as a victory for democracy of sorts.
Or as close as we’re ever going to get it in Britain, a country, that because it has no written constitution, has to constantly invent new and interesting ways to confront the issues of the day. And yet because change is so slow (after all, what do the Conservatives do but conserve the past?), we are forced to watch lawyers versus lawyers as the mobs shout from the sidelines argue whether sovereign-less electorate can have their parliament bypassed. We can and must do better than this.
Morris Holmes for Political Provocateur