Do not turn Brexit into Britain’s version of Bush v Gore

Will MPs get a vote on triggering Article 50? UK Parliament/flickr, CC BY-NC-ND

Buyer’s remorse. On-going constitutional dilemmas. Desperate judicial interventions. All of a sudden Brexit seems eerily reminiscent of the Bush v Gore decision that propelled George W. Bush into the Oval office.

The consensus as voters went to the polls on June 23 2016 was that the British public was voting in a referendum about whether to stay or leave the European Union. In addition to the European Union Referendum Act 2015 – which made the referendum possible – parliament had already passed the European Union (Amendment) Act 2008, which incorporated the Lisbon Treaty into UK law and with it the Article 50 process for leaving the EU.

Without these parliamentary actions, exiting the EU would have been almost impossible because there would have been no formal mechanism to exit the EU within UK law. Parliament, it appeared, had done everything it needed to do – even if a leave vote prevailed. This is important, as anti-Brexit groups and a committee of Lords are instead now arguing that in order to uphold parliamentary sovereignty, parliament must be involved to sanction the Article 50 process in some manner.

After a growing clamour from MPs, the government looks set to agree that parliament will be able to debate the substance of Brexit negotiations before Article 50 is triggered. In a late amendment to a Labour motion on the issue, the prime minister accepted on October 10 that parliament should be allowed to debate the strategy, but that it should not “undermine the negotiating position of the government” or seek to block Brexit.

But there is now a very real chance that it will be the courts who get to decide who will get to trigger Article 50 in the first place. The UK High Court has allowed a challenge to move forward on the proper procedures for triggering the Article 50 process. The case brought by investment banker Gina Miller and represented by law firm Mishcon de Reya, will be heard in London on October 13.

I think this hearing is mistake. Any type of substantive adjudication on such a decision, and especially as to the “who”, “what”, “when”, “where” and “how” of triggering Article 50, will politicise the UK judiciary and may lead to the type of decision that Bush v Gore gave to the US, which strained legal and political relations, tarnished George W. Bush’s presidency, questioned the court’s upholding of the rule of law and ultimately embarrassed the US Supreme Court.

What’s the endgame?

The American presidential election in 2000 was decided by an even closer percentage and number of votes than the EU referendum (Bush – 47.9%, Gore – 48.4%: decided by 543,895 votes). The UK’s June 2016 referendum was not as close (Leave – 51.89%, Remain – 48.11%: decided by 1,269,501 votes). The US Supreme Court decision is also notorious because of the way its ruling went against the majority: Gore ultimately won the popular vote, and although we will never truly know, could have won Florida.

Waiting game. Doug_Mills/EPA

The fact that the Supreme Court halted the recount from even taking place, knowing that Gore had won the overall popular vote, made the decision even more controversial. If the UK High Court were to specify any type of procedure to follow before Article 50 could be triggered, and that procedure were to hit any roadblocks or ultimately halt Brexit, its decision could easily come to be seen in a similar light.

Some of the same experts that argued for parliament to intervene to pass an Act of Parliament in order to trigger the Article 50 process after the referendum based on grounds of parliamentary sovereignty, now want to do something traditionally foreign within the UK constitution: to push the courts into deciding significant political issues.

Although the case is framed as a declaration to “clarify the procedural steps” surrounding Article 50, the hopes of the legal challenge are to considerably slow down or effectively halt Brexit. This is because it is believed that any proposed Act of Parliament that were to ensue may not possess enough support to pass through the House of Commons, and particularly the Lords who are not tied to constituents. The challengers wish to use the courts’ powers to declare what the law means to, in effect, overturn the referendum result.

Even here, the similarities to Bush v Gore are readily apparent. The US Supreme Court’s 2000 judgement primarily revolved around the technicalities and processes involved in the Florida recount, at least attempting to obscure the fact that the decision effectively provided George W. Bush with the presidency. One can only hope that the UK courts do not take such miscalculated bait.

Politics is not for the courts

Given that it famously limited itself to the “present circumstances” surrounding the Florida recount, Bush v Gore has not been cited once since it was delivered in 2000, and thus seems to have become a “one-time-only precedent”. This has not stopped many academics and other commentators from considering it one of – if not the most – political decisions the US Supreme Court has ever adjudicated.

Any type of substantive decision the High Court, or any other court, gives in this particular matter could create a similar situation, becoming such a “one-time-only precedent”. Or it could have larger implications for parliamentary sovereignty within the UK constitution. Certainly UK parliamentary draftsmen will no longer make the mistake of leaving referendums “open-ended” or “advisory” in future bills, as was the case in the EU referendum.

We should be wary about involving the courts to make a ruling on Article 50. They are not routinely invited to sort out high-level UK constitutional questions. Doing so is only likely to politicise a branch of government that has been steadily gaining influence and legitimacy within the UK, and is now largely looked upon as containing independent arbiters that uphold human rights and the rule of law. In this matter the courts should take heed of Bush v Gore, and not wade into what is ultimately a political decision that has already been sanctioned by parliament.

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