Albert Weale writes that the Article 50 case raised questions about which form of democracy can claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy now favoured by many Brexiteers. He discusses these two models and concludes that the only meaningful interpretation of democracy is the constitutional one. In this context the outcome did not represent the judges against the people, as some newspaper headlines suggested, but the judges for the people.
When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?
For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That the claim of the plaintiffs could properly go before the courts was agreed as much on the government side as on the plaintiffs’ side. Indeed, it is easy to see the government welcoming the challenge in order to secure legitimation for its pretension to executive authority by a court judgement in its favour. The case was not about whether Brexit should happen but how it should happen.
There are legal arguments claiming that the High Court was wrong to suppose that triggering Article 50 will alter the rights that citizens enjoy under the law of the land. Those arguments make much of the distinction between the European Communities Act as a conduit or vehicle of rights as distinct from being a source of rights. Those arguments will be for the Supreme Court to decide. But what is certainly prompted by the reactions to the judgement is a broader question of constitutional politics. As well as questions of constitutional law, there are important questions of constitutional and democratic theory. For what is at issue in the controversy was which form of democracy could claim legitimacy – the constitutional democracy established in the UK or the plebiscitary democracy that Brexiteers now favour.
Recent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.
Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.
Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.
This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.
Does adopting a constitution lead to better democracy? Not necessarily, write Todd A. Eisenstadt, A Carl LeVan, and Tofigh Maboudi, who studied 138 constitutions from a 37 year-period. They find that in many countries, the constitution-making processes did not incorporate broad public consultation, meaning that the drafters were often able to grab power by codifying benefits for themselves and for their supporters.
In his first visit to Tunisia as the Secretary of the State in February 2014, John Kerry told Tunisian President Mohamed Moncef Marzouki that the United States is impressed with the country’s new, democratic constitution. “The Tunisian people have ratified a new constitution, a constitution that is rooted in democratic principles – equality, freedom, security, economic opportunity, and the rule of law,” he said, “and it is a constitution that can serve as a model for others in the region and around the world.” But other countries in the region did not have such promising results. In fact the country that inspired the Arab Spring is the only Arab democracy with political rights and civil liberties similar to those of the Western democracies, thanks to its democratic constitution. But why haven’t social movements in nations such as Egypt and Morocco led to democratic transitions, despite extensive efforts to craft new constitutions?
These countries are not alone, and are part of a worldwide trend towards “hybrid” regimes that mix features of democracy with authoritarianism. In recent research we studied a sample of 138 constitutions between 1974 and 2011 and find that three years after these constitutions were approved, over half of them did not improve levels of democracy. The reason, we argue, is that most of these countries did not incorporate broad public consultation which, unlike constitutional processes of the 18th century, is so vital for the democratic outcomes of constitutions.