How to restore trust? A suggestion for the new Constitution, Democracy and Rights Commission

“My ministers will promote the United Kingdom’s interests, including freedom of speech, human rights and the rule of law,” said the Queen in her speech on 19th December. She was speaking in the context of foreign policy. But it is good to know that the incoming government is committed to these fundamental values. The Queen also announced a Constitution, Democracy and Rights Commission “to develop proposals to restore trust in how our democracy operates.”

Restoring trust in democracy is now indeed necessary. Long-standing constitutional principles, not seriously contested in Britain since the Civil War, have been thrown into question over the past three and a half years. So it is useful to restate some of the fundamental principles of how our democracy operates, in which trust needs to be restored.

First, we are a representative democracy. We elect our MPs to represent our interests, as they judge best. We should restore faith in this idea, because parliament’s role has been challenged since the 2016 Brexit referendum. The language of the referendum question was a simple one: should the UK remain a member of the EU or leave? It sounded like direct democracy. It was presented as direct democracy. But we remain a representative democracy. The European Union Referendum Act only gave authority for “the people” to be asked a question. As a matter of law, whether, and when, and how, to leave the EU was—and remains—a question for parliament to implement through legislation.

Second, flowing from this, the government only gets its authority from parliament: it is parliament that gets its authority from the people. The Queen appoints the government because it commands a majority of support in the House of Commons.

The government cannot act in a way which cuts across parliament’s laws or its authority and assume that MPs will follow. Theresa May and her cabinet committed the constitutional mistake of believing that the government of the day, rather than parliament, had power to start the process of leaving the European Union, by triggering Article 50 without first getting an act of parliament to permit this. She was wrong. She needed to get parliament’s authority before she took steps which would undo the terms of the European Communities Act 1972 because parliament is sovereign, and until it said otherwise, European Union law is part of British law. When MPs pass legislation, they are representatives of the people. They are not traitors.

Third, in a democracy governed by the rule of law, everyone in society, from the prime minister to an ordinary citizen, is subject to the law and must abide by it. When there is dispute about what the rules are, judges are the people with authority to decide this. Parliament makes the rules. Judges decide what the words of statutes passed by parliament mean. They identify principles of common law, developed by judges over centuries, and apply those rules to the cases in front of them.

May’s refusal to accept she needed to get parliament’s permission to start to negotiate leaving the European Union meant that a number of litigants went to court to challenge her. The question the judges were asked to consider was not about whether or how or when we should leave; it was whether power to decide that question rested with the prime minister or parliament.

That was a question of constitutional law, and the judges decided it because deciding and applying the law is what judges do.

Deciding a question of law is also what the Supreme Court did this year, when it held that the prime minister did not have power to prorogue parliament. More than 70 MPs, Gina Miller and John Major, asked the courts to decide if Boris Johnson had acted lawfully when he advised the Queen to suspend parliament’s operation—its ability to operate as a legislator and scrutineer of government—for as long as he liked, without explanation and without parliamentary authority.

The 11-judge Supreme Court decided that question in the way it did because it found that in law, a prime minister cannot limit parliament’s powers in this way without compelling reason and for the shortest possible time, and the prime minister had put in no evidence to justify this lengthy prorogation. The judgment was about the law not the underlying politics, as Baroness Hale and Lord Reed, the current and next presidents of the Supreme Court, pointed out in their judgment.

But the reaction of some of the media to those who handed down the Article 50 judgment (“Enemies of the People” in the Daily Mail) was indeed a dangerous threat to trust in democracy and the rule of law. So was the reported description of the prorogation judgment by Jacob Rees-Mogg as a “constitutional coup.”

We dent public trust in the judiciary at our peril. It is corrosive of democracy and the rule of law when the authority of judges is called into question for political reasons.

So proper public understanding of the role of judges is really important, and to restore trust in our democracy and the role of law within it, the Commission needs to restate some very basic principles. Judges are not politicians, and they are not, and should never be, friends or enemies of politicians or indeed “the people.” The absence of political interference in judicial appointments is a good thing, because judges’ own views on politics, policy, or individuals are, as they should remain, irrelevant.

“The people,” in all their diversity, need to understand that politically-neutral judges who strive (in the words of the judicial oath) “to do right to all manner of people after the laws and usages of the realm without fear or favour, affection or ill-will,” are not the enemy. They are guardians of democracy.

The author is a Queen’s Counsel and Principal of Mansfield College Oxford