Stress Testing the UK Constitution
The intensity of the debate over Brexit has caused me to reflect on how in times of upheaval a country’s constitution is stress tested, and the important role of the courts comes to the forefront.
This week I have been glued to twitter and news websites following developments in the Scottish legal case in which a number of Scottish politicians are seeking to establish whether the UK Parliament has the power under European Law to unilaterally revoke its Article 50 notification – which would effectively ‘cancel’ Brexit. The European Court of Justice (ECJ) heard the arguments yesterday, and this morning the newswires were saying that the decision will be issued on December 4th. That would be in record time for a case of such magnitude - and well in advance of Parliament’s ‘Meaningful Vote’ on Theresa May’s proposed Brexit deal, which is due to take place on 11 December.
Yesterday, with a dramatic flourish, Koen Lenaerts, President of the ECJ, mused: “We are in a moment of constitutional construction. It is our Marbury v Madison moment. There is a textual vacuum that needs to be filled.” Marbury was an 1803 case in which the US Supreme Court asserted that the courts had the power to strike down unconstitutional laws.
The Scottish courts are also well used to, and well capable of, stress testing our constitution. Scotland has two Parliaments, one in Edinburgh, and one in London. The Scottish Parliament is forbidden from impinging on the areas reserved by the Parliament in London, and it must not breach European law or the European Convention of Human Rights. In recent years, we have seen numerous challenges to Scottish Parliament legislation in the courts. Legislation introducing damages for pleural plaques – an asymptomatic condition caused by past exposure to asbestos – was challenged on the grounds that the legislation breached the human rights of insurance companies to peaceful enjoyment of their money. Legislation introducing minimum unit pricing for alcohol was challenged on grounds that it would constitute a disproportionate interference with free trade in the EU. So-called “Named Person legislation” was challenged on the grounds that it interfered with human rights to privacy and family life. The Scottish and UK Governments are at loggerheads over whether the Scottish Parliament exceeded its powers by passing the Withdrawal Bill to bring EU laws into the Scottish statute book post Brexit. The challenges to pleural plaques damage and minimum unit pricing eventually reached the UK Supreme Court, where they were unsuccessful; but the Scottish Government was sent back to the drawing board on elements of the Named Person legislation. The UK Supreme Court’s judgment on the Withdrawal Bill is still awaited.
In the era of Brexit, the English courts have also been prepared to put the UK Government’s actions under the magnifying glass. In Gina Miller’s high-profile Brexit case, the High Court held that the UK Government had to ask Parliament before giving notice of withdrawal from the EU. It would remove a series of rights created by Acts of the UK Parliament, which was something only the sovereign UK Parliament could do.
For the jurist, AV Dicey, the Rule of Law required that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. The judges in the Miller case were castigated in some sections of the popular press as “Enemies of the People”, but in reality judges are the defenders of the people. History teaches us not to underestimate how important the role of the courts is in balancing the rights of individuals and the powers of the state.
It is sobering to think that after Marbury, the US Supreme Court did not strike down another law until Dred Scott v Sandford in 1857. In that infamous case, the Court struck down the Missouri Compromise, permitting the unhindered expansion of slavery into all new US territories. It also held that Dred Scott, a black American whose ancestors were imported as slaves, could not be an American citizen and had no standing to sue in the Federal courts. It was one of the catalysts for the American Civil War.
No doubt the judges of the ECJ will have the historic significance of their role at the forefront of their minds as they deliberate over the next few days.
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