The People v the High Court

Why, if you think of yourself as a believer in freedom and democracy, should you defend the result of the June 23 referendum, not High Court judges? Because if the courts are now to instruct MPs regarding the way in which they must conduct their business, it drives a new kind of wedge between you and your MP – you can elect your representative, you can tell them how you would like to vote on issues that affect you, but if any Tom, Dick or Harry with deep enough pockets thinks differently, they can buy the legal power to frustrate your wishes in the highest courts in the UK, and make it stick.

If the Supreme Court, following its hearing of the Government’s December 5 appeal, decides on January 16 to back the High Court’s November 2016 decision, it puts the UK in exactly this anti-democratic position.

Parliament is the servant of the people: we instruct our political representatives. Parliament can only be sovereign if it delivers the will of the British people. This principle has been blurred by November 3’s High Court challenge to the UK’s exit from the European Union. The litigants, Gina Miller et al, want the Government’s pre-existing “royal” prerogative to invoke Article 50 without parliamentary debate to be vitiated and replaced by an Act of Parliament.

Although the royal prerogative is usually used to avoid democratic controls, in this instance, the Government was planning to use it to invoke Article 50 under direct instruction by the electorate. This action is in line with the Act of Parliament (the 2015 Referendum Act) which set in motion the referendum process.

Why are the litigants and judges being anti-democratic?

Gina Miller, after the High Court verdict on November 3, claimed that “We were dealing with the sovereignty of parliament….. It was about what was right. Now we can move forward with legal certainty.”

Former Attorney-General Dominic Grieve is also a fan of the legal process interfering with the political. In a BBC interview on December 8, he maintained that parliament has a duty to manage a Leave process “… that might do appalling damage to the economic life of the citizens of the UK … In the UK, in order to change law, you need to pass a new law.”

Other Remain-voting Tories, Labour MPs and Liberal Democrats are, with varying degrees of deceit or openness, attempting to deny the UK’s democratically expressed will.

The legal challenge is a sham, full of phoney protestations that the law of the land is being corrupted. It is an attempt to hold up a process that is very straightforward: triggering Article 50 gives Parliament two years to make the necessary arrangements for a complete separation from the EU.

What really keeps Gina and chums awake in the wee small hours is not any threat to democracy, but its use by ordinary people. Why do they think that the wishes of the UK voters should be disregarded? That the considerations of judges, investment managers, civil servants and opposition and government politicians should be marshalled to outweigh than those of the millions who want to see Britain out of the EU?

The deep-pocketed litigants who have called on UK’s highest courts to rule on the Brexit process maintain they have no problem with the referendum decision. But their rush to the courts suggests that they hold the voters in fear and contempt, and these efforts to block and frustrate the people’s will are an expression of it. They think the voters didn’t understand what they were voting for, despite the strident and dire warnings of the Leave campaign in the lead up to the referendum. They are furious that the voters didn’t trust them and refused to believe them.

We should be in no doubt that if the Supreme Court rules in January, following the December 6 hearing, that parliament must vote on the Brexit process, the Prime Minister’s promise to begin negotiations to trigger Article 50 by the end of March will be under serious threat. And along with it, the democratic mandate of the British public.

Stalling the democratic mandate

Calling in the judges was only the first stalling action instigated by some Remainers. Many MPs have demanded that the government should lay out its plans for negotiating Brexit before implementing Article 50. Ardent Tory Remainer Anna Soubry said during a BBC Radio 4 interview on Monday December 5, Brexit “….will happen, pursuant to the will of the people … We are going to respect the outcome of the referendum.” But, she continued, the issue of Remain or Leave “… is just a simple question – there were many more complex questions that were not put to the voters at the time of the referendum…”

This insistence on the inability of the “simple” voter to understand the complexities of Brexit was borne out in the Parliamentary vote on December 7, in which MPs backed a Labour motion, by 448 votes to 75, a margin of 373, which said the government should publish its plan for Brexit, and that it was “Parliament’s responsibility to properly scrutinize the government” while it worked on this.

In response, the government conceded that it would publish its plans, but added an amendment requesting parliament to respect the wishes of the UK as expressed in the referendum on June 23rd, and to endorse the government’s wish to invoke Article 50 by March 31st 2017. This was passed by 461 votes to 89, a majority of 372.

While the Government seems determined to respect the electorate and plough on with Brexit, Remainers seem equally determined to throw up objections. Labour’s Shadow Brexit Secretary Sir Keir Starmer, for example, has equated an untrammelled passage through parliament for the government’s plans to “a vote in a vacuum.” If the Supreme Court decides on January 16 that Parliament must vote on the details of Brexit, many Remainers will continue to do what they can to obstruct the process of leaving the EU.

The anti-democratic sentiments of these Remainers are revealed by the assertion that the referendum was only “advisory”. In direct contradiction of Parliament’s promise to act on the result of the Referendum Dominic Grieve, “We do not rule, in the UK, by referendum.” When asked if, in that case, the referendum had just been a very grand way of obtaining the public opinion of the country, he replied, “That’s a very good way of putting it.”

We will be keeping a close watch on developments over the next few months!