After three of the most eminent judges in England – including the Lord Chief Justice and Master of the Rolls, the two most senior positions in the whole of the judiciary – ruled in the High Court in favour of the longstanding principle of parliamentary sovereignty, there was slander and outcry as the newspapers and politicians in the country have become nothing more than a braying mob.
Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Sir Philip Sales judged that the royal prerogative does not allow the government to invoke Article 50, and begin the formal process by which Britain would leave the European Union, without some form of parliamentary consent. According to their interpretation, while the royal prerogative does afford the government scope to conduct its own international relations, including the signing of treaties, to trigger Article 50 would be to take steps which would inevitably deprive the people of the country of rights which they currently possess thanks to European Union law.
The deprivation of rights is a serious matter, and one that can only be achieved by a parliamentary Act. So the ruling effectively forces the government to engage with parliament regarding its as yet barely specified plans for Brexit. It entitles MPs to a vote on whether or not to invoke Article 50, the requisite next step if the country is indeed to leave the European Union, which a referendum decided in favour of back in June.
While the legal situation was unprecedented and scholars have variously agreed or disagreed with the outcome, nobody with expertise and sense has suggested that the three judges acted anything other than faithfully, showing a nuanced understanding of constitutional law before reaching an entirely justified and unanimous result. The government plans to appeal the case to the Supreme Court, having argued that prerogative powers in this case could uphold the ‘will of the people’, and that parliament has already had its say after voting in 2015 to allow a referendum to go ahead.
Neither the validity of the judgment, the prospect of an appeal, nor deference to an impartial judiciary and the rule of law prevented the howls and shrieks of the gutter politicians and sewer press. Typically the Daily Mail led, with a front page picturing the three judges branding them ‘Enemies of the people’, while the Daily Express opined ‘Now your country really does need you’, calling it ‘the day democracy died’.
Conservative MP and former Attorney General Dominic Grieve offered the sternest condemnation of the press response, describing such coverage as ‘chilling’, and noting ‘the judges did exactly what was asked of them’. He went further still, adding ‘if you did decide to behave immoderately and whip up frenzied hatred you can do that in a free society if you set about it, and newspapers like the Daily Mail are no different from the Völkischer Beobachter in Nazi Germany if they run headlines of that type’.
But Grieve’s fellow Tory Jacob Rees-Mogg instead praised the press as ‘magnificent’, proposing that if the House of Lords attempts to obstruct the onset of Article 50, Theresa May’s government should stuff the House with as many as 1,000 Brexit-supporting peers in order to force their wishes through. And UKIP leader Nigel Farage, the racist banker who issued his usual catcalls against the ‘establishment’ and the ‘rich elite’ of which he is part, decried the judges’ ruling as a ‘great betrayal’, warning that if MPs refuse to promptly invoke Article 50 ‘they have no idea of the level of public anger they will provoke’. In a similarly confrontational fashion, millionaire UKIP donor Arron Banks accused the ‘legal establishment’ of ‘declaring war on British democracy’.
Within the government, Communities Secretary Sajid Javid questioned the judges’ impartiality, lamenting ‘a clear attempt to frustrate the will of the British people’. Meanwhile Prime Minister Theresa May, after stressing a commitment to overturn the decision in the Supreme Court, repeated her mantra on immigration, saying ‘I think the people spoke on the 23 June and I think […] an important aspect that underpinned people’s approach to that was a concern they had about control of movement of people from the EU into the UK. I believe it is important for the UK government to deliver on that’.
Of course it is no surprise when the Conservatives and UKIP, who have equally made inflammatory anti-immigrant sentiment their lifeblood, shout down with some agitation any legal argument which would perturb the swift implementation of their ruinous half-plans. But it is galling to find the official opposition refusing, even on this rare occasion when offered, to make a proper stand. Instead of discussing the merits of a parliamentary vote on Article 50, Labour rushed to say that it would neither block nor stall, but would be happy merely to be consulted.
Tom Watson shoved his way to the front of the queue, stating ‘we’re not going to hold this up. The British people have spoken and article 50 will be triggered when it comes to Westminster. I think it’s important, the country needs to hear this, because I think most people think that that court judgment meant that the referendum result has fallen. It hasn’t, it will go through’. And he was soon followed by Jeremy Corbyn, who clarified that while the government must show ‘transparency and accountability’ to parliament, still ‘Labour respects the decision of the British people to leave the European Union’.
At least Tim Farron, leader of the Liberal Democrats, considered that the ruling gives parliament ‘the chance to say no to an irresponsible hard Brexit that risks our economy and our jobs’. And Scottish National Party leader Nicola Sturgeon called the ruling ‘hugely significant’, suggesting that so as to uphold the devolution settlement, the Scottish government and its senior law officer would consider intervening in the case.
Still the preponderance of those on both sides of the Commons who would defer to the ‘will of the people’ is worthy of note. The outcome of June’s referendum saw 17,410,742 (51.89%) people vote for Britain to leave the European Union, while 16,141,241 (48.11%) voted for Britain to remain. With 33, 577,342 votes cast in total (including 25,359 ballots left blank or declared invalid), the turnout was at 72.21% of registered voters (46,500,001), and at 65.38% of the entire population of voting age (51,356,768).
The turnout of 72.21% was significantly up on the turnout at last year’s general election, which saw 30.8 million votes, representing a turnout of 66.4%. As with general elections in the United Kingdom, for the referendum the 3.2 million EU citizens living in the country were not entitled to vote – a fact which seemed more pertinent than ever, with the majority likely to favour Britain remaining as part of the EU, and with their exclusion amounting to a repudiation of four decades of membership, arguably withholding from the voting pool many of the most informed. If EU citizens weren’t allowed a say, wasn’t the referendum a denial of the current state of things, rejecting the vast contributions made by EU workers, biased by its very nature against continued membership?
Looking at the makeup of parliament as a result of last year’s general election, of the 330 Conservative MPs in the House of Commons, 135 voted for Britain to leave the European Union, while 186 voted to remain, with 9 votes undetermined. Just 10 Labour MPs voted for leave, while 216 voted in favour of remain. And all 54 SNP MPs, all 8 Liberal Democrats, Plaid Cymru, Sinn Féin, the SDLP, the UUP, and the sole Green and sole independent all backed remain, with just the DUP and the sole UKIPer preferring Brexit.
Leaving aside the demographics of those who voted, even with a relatively high turnout, the small margin of the public who opted for Brexit cannot be said to represent the majority of the country, while their choice was utterly at odds with the overwhelming perspective of elected MPs. Prior to the referendum, Nigel Farage was adamant that a split in the region of 52%-48% would amount to ‘unfinished business’, and would therefore require a second vote, although this of course was when he expected his side to lose. And opinion polls since have indicated that in light of all the lies from the ‘Leave’ campaigners – including the swiftly abandoned pledge to fund the NHS with an additional £350 million each week – and given the uncertainty which has followed, there has been a slight but significant shift towards ‘Remain’, with the caveat that opinion polls these days seem dubious at best.
The question is whether in a representative democracy with the sovereignty of parliament at its core, and given the tenuous nature of what was only an advisory referendum, our politicians should be foregoing their convictions and a good half of the population in order to cede ground for a populist cause.
Is it coherent to defer to the will of the people on the fact of the vote without returning to the people with regard to the terms and goals of Brexit negotiations? Is it responsible, as a member of the opposition, to gleefully invoke Article 50 when the government is showing such a lack of direction, unable to articulate its plans, boasting few realistic objectives, apparently happy to impoverish the nation at the altar of immigration amid increasingly nationalistic bile?
What is more, estimates based on voting allegiance in the 2015 general election suggest that while just 39-42% of Conservative supporters and an obviously meagre 4-5% of UKIPers voted for Britain to remain in the European Union, remain was backed by 63-65% of Labour supporters, plus 68-70% of Liberal Democrats and 75-80% of Greens. The Labour Party might cow to a small though not wholly representative majority of Brexit voters, but by doing so it denies the beliefs and principles of its own members and its own support.
As part of the High Court proceedings, the government argued and the judges accepted that once Article 50 has been invoked, it cannot be withdrawn, meaning that Britain would inexorably be headed for a European exit. Perhaps the government will cede ground on the point in an effort to win its appeal, but this would throw the whole affair into an even sorrier state of confusion. If Article 50 is triggered, what measures will ensure a role for parliament, lest the whole of Brexit fall into the pernicious hands of the likes of David Davis and Liam Fox? Concerned members of the public who value a tolerant, modern, outward-looking nation, foregone by the very politicians who are supposed to be on their side, can only hope and, we suppose, continue to vote.
