There is a legal challenge going on at the moment over Brexit. I have no doubt this is partly to do with people trying to delay Brexit. And others see it as a bunch of poor losers trying to stop the will of the people. I think there is a little bit more to this.
Just for a moment lets say we voted 90% to leave Europe and the government (that’s 22 MPs and 1 member of Lords – the cabinet) decided not to go ahead with it. What would you do? Would you try to take them to court? Well you can’t – you see the referendum was only advisory in legal terms. The only thing that would legally force the government (the cabinet) to act in a specific way is a vote of parliament.
This is at the core of the matter – what can those 23 people do on their own? Not only that, but this sets a precedent. Some people talk about a second referendum, but actually that is worthless if the government are allowed to claim “royal prerogative” on this issue. What the precedent means is that any future government will have the power to re-join Europe, without a referendum and without the approval of parliament. In fact it means that, even if we have another referendum with a massive majority to stay out, the government of the day can still ignore it and choose to rejoin.
For a minute just think about some of the arguments for leaving. The European Courts over-ruling our government. This is one of the biggest issues that people wanted to fight against. Perhaps that’s because the fuzzy difference between parliaments and government.
We have a very fuzzy idea of the different parts of government here in the UK. The USA have a clearer picture here. What we call government is the “executive branch” – the bit that does things. Parliament is what you call the “legislative branch” – the part that sets laws. The courts are the “judicial branch”. The courts don’t make up laws – but they do make sure the executive branch does what the legislative branch sets out in law. In other words the 23 people of the cabinet and their civil service are only able to do what the parliament authorizes them to do and the courts hold them to account.
The complaints about courts controlling governments were actually about governments having to do what the elected parliaments require them to do. They were challenging parliamentary authority. And that is exactly what is happening here, and why we need to make sure parliament ratifies Brexit.
On the other hand the SNP must be rubbing their hands with glee over this. You see, if “royal prerogative” can be called on this issue it means the executive branch does not need the blessing of the legislative branch to initiate leaving a union. It will set a precedent that means the Scottish government will be able to initiate independence despite the referendum.
At the heart of the legal case is who runs the country. The government try to sell it as they are doing what the people have asked – but in actual fact it is giving them the power to ignore the people in the long term.