Gina Miller leaves the High Court after it decides that the Prime Minister cannot trigger Brexit without the approval of the MPs. Dan Kitwood/Getty Images
Parliament v. People is the true title of the legal case heard in the High Court today, in which three judges ruled that 650 individuals had the right to frustrate the wishes of 17.4 million voters. The official term for this pyramid of oligarchic control by a tiny, privileged minority is parliamentary democracy.
Neither the courts nor Parliament had any locus in this dispute. The referendum on 23 June was one of those rare and exceptional occasions when the entire citizenry of Britain had, with Parliamentary agreement, dispensed with the usual intermediary representatives and institutions to whom they normally delegate the governance of their country, for the purpose of reaching a major decision by universal consent.
By the European Referendum Act 2015, Parliament temporarily resigned its authority back into the hands of those from whom it is derived: the electorate. This was voted for by 544 MPs to 53. It is arguable that the dissenting 53 have some case for interfering with Brexit; the 544 have not the shadow of a justification for doing so.
The House of Commons resigned its responsibility on this issue because it was confident the electorate would vote the “right” way, i. e. Remain. Now that it has voted the “wrong” way, MPs want to intervene and amend the Brexit process into a de facto Remain settlement. Do they and the activist judges who have sought to frustrate the clearly expressed will of the British people realize how dangerous their behaviour is?
During the past half-century the twin enforcement instruments of unpopular liberalism have been the courts and the legislature, increasingly unrepresentative of the national will. As mass immigration, to take a key issue on which there is a fissiparous divide between the establishment and the population at large, MPs facilitated the influx and the multiculturalism that alienated the public, while judges notoriously lenient with serious criminals imposed hate laws in which the doctrine of “aggravated” offences carrying heavier sentences ended the ideal of equality under the law, hard won over centuries.
There is now widespread contempt for the law due to its manipulation by the establishment against the public interest. The High Court should have refused to hear today’s case on the grounds that no court should attempt to tamper with the will of the nation, expressed in a referendum pre-sanctioned by Parliament. But judicial activism has become part of the political landscape. The extent to which a handful of activist judges can distort a constitution was dramatically illustrated as early as 1973 in the United States with the Supreme Court ruling in Roe v. Wade.
Now there is talk of Parliament “asserting itself”, “taking back control” and so on. The reality is it is trying to take back a control it voluntarily relinquished, not from the executive but from the people. The royal prerogative, in this situation, is a more genuinely democratic instrument of government than a partisan House of Commons attempting to renege on the compact it made with the electorate in the Referendum Act.
Can you imagine how Brexit would fare at the hands of a Remain-dominated House of Commons? The hundreds of amendments and conditions with which Europhile MPs would hobble the Government? This legal case is nothing to do with maintaining the constitution and everything to do with neutering the popular decision of 23 June. It would be difficult to exaggerate the danger of the confrontation being provoked by the two most unpopular institutions in the country, drunk on entitlement.
Behind the legal jargon and pompous political declarations, the doctrine being proclaimed is that the largest popular vote ever recorded in British history can be obstructed and reduced to next to nothing at the whim of the moat cleansers and duck-house maintainers at Westminster. Never have we seen a more dramatic illustration of the weasel “I am a representative not a delegate” with which Sir Bufton traditionally justifies his latest treachery.
Yet this perverse decision may be providential. Despite public outrage over the MPs’ expenses scandal, the Augean stables remain uncleansed. MPs are now likely to offer the public a provocation too far. The same applies to the politicised courts which have no right to involvement in Brexit. The British are slow to anger, implacable once aroused. There are petty tyrants nearer home than Brussels who need to be removed. The backlash from this provocation will exceed anything witnessed in any of our lifetimes. It could lead to very radical reform. The House of Commons needs to be tamed as the House of Lords was a century ago.
And a petty indulgence, if one may: I told you so. From the first it was evident that the absurd Article 50 was never going to be anything other than a drag-anchor on Brexit. The week after she became Prime Minister, Theresa May should have discarded that cumbrous mechanism, notified Brussels of our departure, declared UDI, sent a team to negotiate trade matters and set civil servants to drafting a comprehensive EU Law Repeal Bill. Failing that, she should at least have triggered Article 50 instantly.
Instead, endless delay and prevarication, the manufacture of innumerable issues for pointless “negotiations” and obstruction by civil servants have allowed fanatical Remainers to regroup and lay a minefield gravely prejudicial to investment, prosperity and, above all, sovereignty.
The one hope is that, on appeal, the Supreme Court will have the sense quickly to quash this absurd challenge to the will of the British people. Otherwise we shall find ourselves in a constitutional crisis on the scale of 1642 and 1688. Iain Martin rightly conjures the prospect of millions of angry people descending on London. Unless, however, the anti-British elite surrenders unconditionally and abandons its ambition to annul the popular will, that may be the beginning of events whose end cannot be predicted.