Calm down, the Supreme Court is working for you

A technical issue in British law has become a proxy to replay the entire referendum campaign all over again

BY Rachel Cunliffe | RMCunliffe   /  9 December 2016

The case for giving Parliament the right to vote on triggering Article 50 is so simple a six-year-old could understand it. That was what was argued yesterday by Richard Gordon QC on the last day of the government’s Brexit appeal, but some, it seems still have their doubts. So here’s the argument, as I would explain it to an inquisitive six-year-old.

In Britain, we divide up the powers to run the country between different institutions. Parliament’s job is to make laws. The job of the prime minister and her cabinet (i.e. the government) is to make decisions about what she thinks the country should be doing. If that requires new laws to be made, those have to be voted on in parliament. Taking Britain out of the EU would mean changing British law. We know this, because back when Britain joined the EU (or the European Economic Community, as it was then) in 1973, a law needed to be passed through Parliament: the European Communities Act. The government does have a special power call “Royal Prerogative” to make treaties with other countries. The government is now arguing that this power enables it to skip over Parliament and break the “treaty” which joins Britain to the EU. The opposing side is arguing that Royal Prerogative cannot be used to change British laws without the approval of Parliament. The dispute is now being debated by our judiciary, an entirely separate institution comprising of the best legal minds in the country, whose job it is to interpret the law and consider exactly this kind of question.

Make sense? You’d think so. But this quite dry and technical issue in British law has become a proxy to replay the entire referendum campaign all over again. Only this time, the “unelected elites” intent on stymying the will of the British people aren’t the eurocrats in Brussels, but the judiciary.

The argument runs that a small group of “establishment” individuals (the judges ruling on the case, the woman who originally brought it, and the metropolitan campaigners and sympathetic MPs supporting her) are now attempting to undo the will of the 17.4 million people who voted for Brexit.

There are a couple of things wrong with this analysis. To start with, the 17.4 million people who voted to leave the EU had no chance to offer their views on whether Parliament should be involved. Lumping them all together as an argument in favour of Theresa May’s autocratic style of governance is nothing short of insulting, especially as one of the key Leave arguments was that it would restore parliamentary sovereignty – the very sovereignty the government is now attempting to override. For another, it neatly misses out the 16.1 million other people who voted to Remain. Even if they were on the losing side, they still deserve to have their concerns acknowledged by the Parliament voted in to represent them. Clearly, a majority voted to leave the EU, and that’s what will happen, but Remainers (and, of course, those who didn’t vote at all) didn’t simply vanish from the equation after the result came in.

But most importantly, the anger over the judges – called “activists”, “elites”, and most disturbingly “enemies of the people” – is entirely misguided. The original case and subsequent appeal are not about triggering Article 50 at all. The President of the Court reminded everyone at the start and end of the case that this was not about “overturning the result of the EU referendum”, but rather “the process by which that result can lawfully be brought into effect”. In other words, it’s not whether Britain leaves the EU, but how. What would the Brexiteers who are furious that the judiciary has got involved, say if it hadn’t, paving the way for an unlawful Brexit that could then be challenged in the courts at a later date?

As for the fact that the judges in question are extremely highly educated with decades of experience in the law, and are therefore part of the “establishment” – well, yes, they are. Would we rather they weren’t? Would we prefer elected judges, who risk being turfed out at the end of their terms and make judgements based on what they think will be popular rather than what the law actually says? Or, if that would that make them too much like politicians, do we want judges chosen by lot, like the Athenians did it, and have a kind of Supreme Court jury service? Eleven random men and women, with no legal experience whatsoever, deciding the constitutional question of the century?

The concept is ludicrous, and therein lies the answer to where this animosity really came from. The assaults on the British legal system from the host of anxious Brexiteers are not about the argument or the process at all. It’s all just residue from the referendum campaign, a knee-jerk reaction that both sides were guilty of to attack any nuanced point of view, anything that made the whole ordeal seem a little less clear-cut.

To which I say to the Brexiteers: You won, it’s okay, now calm down and let the Supreme Court do its job.