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My Lords, it is a little hard to take note of something—the UK’s withdrawal from the European Union—that may or may not happen. It is harder still to predict how it will turn out, a task that I happily leave to the large number of your Lordships whose political antennae are more finely tuned than mine. However, there is one aspect of the withdrawal process of which I take note and express concern: the strain that it is placing on the system by which we are governed.
Our constitutional settlement is based on the accountability of the Executive to Parliament, and on the rule of law. These are foundational principles, to which our utter fidelity should not be in doubt, but successive Governments have been tempted to stray from both. Understandably frustrated in their attempts to implement the referendum result, they have identified an alternative pole of attraction: the so-called will of the people, as expressed, however tentatively and enigmatically, in that vote in 2016.
The previous Government may not have always welcomed their accountability to Parliament or done all they could to defend the rule of law, notably against the description of senior judges as “enemies of the people”. However, as the compelling drama series Brexit enters its fourth season, it is the current Government who have jumped the shark. The principle of executive accountability to Parliament was not only threatened but, as the Supreme Court unanimously found, breached when Parliament was prorogued without sufficient reason. The Government have appeared at best indifferent to the rule of law in their repeated assertions that we will leave on
“Mr Johnson would refuse to sign a letter requesting an extension even if the Supreme Court ordered him to”.
Whether or not such brazen words are followed through, the rather significant principle that we must all obey the law is corroded merely by their being spoken.
These are destructive themes indeed: people versus Parliament; people versus the courts; people versus the laws; people versus Brussels, Ireland, foreign states or foreign powers; Brexit as a World War II re-enactment. Then, for good measure, there is more: people versus the BBC; people versus the universities; people versus the elites—other elites, that is, never those who are whipping up the outrage. Those themes are destructive, not least, because these populist calls are not the preserve of any single party or grouping, but might in future prove just as attractive to Governments of a different, and even more dangerous, colour. The neglect of fundamentals, and the coarsening of our national dialogue, are genies more easily released than put back in the bottle.
Thank goodness for our Supreme Court, which has decisively and dispassionately applied the relevant principles, conducting itself before the eyes of a watching world without fear or favour, affection or ill will. Relied upon in its judgments in both Miller cases was the Case of Proclamations 1610, in which Sir Edward Coke set limits on the prerogative power of the monarch. At one meeting between the two men the King was famously described as,
“looking and speaking fiercely with bended fist, offering to strike”,
him, whereupon Coke fell flat on all fours and beseeched the King to pardon his zeal.
The pressures on modern judges may not be quite in that league but plans to tame the judges need to be strongly resisted. The transparency of the Supreme Court is already exemplary: 4.4 million people are said to have accessed its live stream on the first morning of the Miller-Cherry case—hoping no doubt to catch the noble Lord, Lord Pannick. The fine work of the Judicial Appointments Commission, with its substantial lay element, deserves to be better known. But the judiciary cannot and should not be made more directly accountable to “the people”, or even to their representatives in Parliament. The true independence of our judges, bred into them from their early years in the Inns of Court and admired around the globe, is as vital to our constitutional integrity as it is to our standing in the commercial world.
Democracy, properly understood, is about so much more than winner-takes-all populism. It is: inclusive, tolerant, pluralistic; founded on respect for law and institutions; a mechanism for not only quantifying but reconciling our differences. Whatever else we may lose from the fiasco that is Brexit, let us hold fast to that and make it the basis on which we build for ourselves a better future.