Brexit: Thank goodness for the Separation of Powers

Only yesterday, I was teaching the principle of the Separation of Powers. Derived from the philosopher Montesquieu, the concept is that there are three separate forms of state power, to be found in the legislature which makes the laws (parliament); the judiciary which interprets those laws, and determines whether or not they have been adhered to (the courts) and the executive, which implements the laws, and the decisions of courts. The idea of the Separation of Powers embraces both that these three forms of state power ought to be vested in different places, and also that they ought to operate as checks and balances each upon the others.

A development today in relation to Brexit epitomises the Separation of Powers in operation. The court has ordered the government to disclose its defence to an action brought against it, in a case which is about who has the authority to trigger Brexit.

The Government is the very beating heart of the Executive. Government ministers head up all of the great ministries of state and the civil service. Governments also have a huge influence on Parliament’s priorities, agendas and processes.

So, what is the Government’s case in all this? Is it that the people are sovereign? No. The government’s case is that it is the government alone that has been gifted the ancient authority of the monarch (from a time before we had Separation of Powers) to do exactly what it likes. Specifically, the government’s case now revealed asserts that neither the legislature nor the judiciary (neither parliament, see paragraphs 11-12 at page 6 nor the courts, see paragraphs 13ff at page 7) should have any say in its exercise of ancient royal prerogative powers. So much for the Separation of Powers and the Rule of Law! Indeed, not only was the government’s case not that the people were sovereign, the government’s case was that the people should not know what its case was (see paragraphs 5-6 of this application)! We only know that because of the success of its opponents, through the courts, forcing the government to be transparent about its views of its own powers.

Which is why I am saying thank goodness for the Separation of Powers! Wherever it may be leading, at this point in time the claimants are arguing that the legislature has a role in determining whether we walk away from our international treaty obligations as members of the European Union. The government is arguing that this is a decision for the executive alone. And the forum in which this is taking place is the courts, giving a say to the judiciary. Which means that, right now, all three branches of state are deeply enmeshed in this litigation. Which is a good thing. It means that the checks and balances the one ought to have upon the other to seem today to be operating effectively. Thank goodness that there are these checks and balances on the right of the executive to do whatever it wishes! Long may it continue!

The application was brought by Bindmans LLP, which reports and comments that the surprising submissions are,

that Parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by Acts of Parliament stripped away if and when the executive withdraws from the treaties on which they are based.

You can now read the government’s case for why it alone neither the legislature nor the judiciary should have a role here: https://www.bindmans.com/uploads/files/documents/Defendant_s_Detailed_Grounds_of_Resistance_for_publication.PDF

And you can read the contrary case put forward by The People’s Challenge for why the legislature should have a role here: https://www.bindmans.com/uploads/files/documents/Article_50_final_corrected_and_unredacted_version.pdf

And next month, the judiciary will have its say.

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