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One of the problems that arises when the courts get involved – or involve themselves – in political issues is the way it greatly narrows the range of people who can have a truly informed debate about what’s going on.

Those of us without legal training find ourselves in a similar position to medieval peasants, putting our faith in a Latin Bible we cannot read and the cognoscenti who interpret it for us. This makes it difficult to take a hard stance on the narrow issue of the High Court’s ruling on Article 50.

For the record my instincts lie with this unexpected harmony of views between Lawyers for Britain and very-Europhile legal expert and ex-Government lawyer Carl Gardner, to the effect that this represents a major diminution of the royal prerogative.

In particular, this Tweet looks a lot like the court indulging in what we might call ‘ought’ judgements, the basis of judicial activism:

carl-gardner-tweet-article-50

 

But there’s only so much to be said about the specifics of the case, save to wish the Government well on appeal, and as Mark Wallace points out there’s no chance that Article 50 isn’t going to happen.

Instead this judgement should be a wake-up call that alerts us to a very damaging long-term trend: the erosion of the royal prerogative, which is to say the executive’s discretionary powers in our democratic system.

For those unfamiliar with the term, the royal prerogative refers to powers which are still vested in the Crown. This theoretically makes them the “Queen’s powers”, but in reality they are wielded by our elected executive which, unlike in a presidential system, doesn’t otherwise have a discrete source of power.

Many of you will probably have seen the common refrain from Remainers on social media: “Looks like Brexiteers aren’t go keen on Parliamentary sovereignty now!” The tone and phrasing may vary, but the key message is the same – that the High Court has hoist Leavers by their own petard.

Except of course that ‘Parliament’ does not mean ‘the House of Commons’. It also consists of both the House of Lords and, crucially, the Crown-in-Parliament, from whence flows the royal prerogative. Advocating Parliamentary sovereignty against external institutions does not place you automatically on one side of a dispute between the legislature and the executive.

And whilst some people clearly feel very strongly that Parliament should be running the show – Stephen Philips has today resigned over it – Paul Goodman is right that the Government will fatally undermine Britain’s negotiating position if it loses control of the process.

There’s much more to this than just the EU. Tony Blair’s abdicating responsibility for the Iraq War to Parliament has created the absurd precedent that the Government feels the need for a vote before even the most limited overseas intervention.

That vote was accompanied by rhetoric that, whilst stirring, was out of all proportion to the actual action proposed, and followed an earlier defeat wherein Ed Miliband’s need for a tough-guy moment was allowed to short-circuit the entire Western response to Bashar al-Assad’s crimes against his people.

Or there’s the Fixed-term Parliament’s Act, which should have been a one-off fix but looks like becoming a permanent part of our constitution, despite widespread recognition that replacing the organic tempo of British politics with a rigid structure which imprisons administrations in office does more bad than good.

It’s up for review, and a private member’s bill has been tabled to repeal it, but even amongst people who’d like to see the back of it there is one objection which, whilst entirely lacking in substance or merit, they fear will prove insuperable: “You can’t give powers back to the Queen!“. But you can, and we should.

Nobody with the faintest grasp of how our constitution actually works could mistake the royal prerogative for powers actually exercised by the monarch. Rather, the Crown is a very useful and entirely passive vessel in which executive powers are stored, ready when the elected Government needs them.

But this monarchical aesthetic – and constitutional reform often turns out, like so much progressivism, to be little more than a pre-occupation with aesthetics – leads some people to treat perfectly normal, discretionary executive powers as some kind of aberration. Or “an ancient vestigial power left over from a time before the UK was a democracy”, in the words of one staunch Remainer.

If the intent of those behind the challenge wasn’t entirely clear, by the way, this article by a QC on the Independent website clears things up: the ruling is all about giving MPs and peers a chance to speak for a silent Remain majority (non-voters being complacent Remainers, obviously) and either block Brexit or demand another referendum designed to ensure Leave cannot win.

For good measure the author then goes on to advocate a codified constitution, a constitutional innovation the primary effect of which would be a huge transfer of power from the Government to the legal profession and the interest groups who employ it. The best argument he can muster are that it’s what other countries do, which ought detain only the fashion-conscious.

However, we should be grateful to Geoffrey Robinson QC for providing us with such a timely reminder that we should never allow a veil of legal technicality to exclude us from what are fundamentally political debates. He couches his piece in terms of “how our country works” but in truth it is much more about how he feels it ought to work, a subject on which his opinion is no more important or valuable than anybody else’s.

The Government may have lost this case, and may well lose the appeal, but Theresa May is absolutely right to defend the royal prerogative and should continue to do so.

Not only is executive power a legitimate and normal part of how democratic government works, but the Government must be able to act decisively on its mandate if the snares of the privileged and powerful (wherever they be laid) are not to bind it tight to their own interests.

If she does intend to bring about the return of a more grown-up sort of Government, defeating and dismissing the childish complaint about “giving powers back to the Queen”, and all the error that flows from it, would be a welcome step in the right direction.

101 comments for: May is right to defend the royal prerogative

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