The High Court chose to uphold the law yesterday, and got pilloried for its decision. It was even accused of being the enemy of the people.
The Daily Mail headlined ‘Enemies of the people: Fury over 'out of touch' judges who have 'declared war on democracy' by defying 17.4m Brexit voters and who could trigger constitutional crisis’.
The Telegraph was quick to point out that 17.4 million people backed Brexit, ‘the biggest mandate in British political history’ which is a debatable interpretation of a 52-48 per cent vote.
Yet, if you have been following the debate, and reading the opinions of lawyers splattered across the Internet on whether the UK government could kick-off Article 50 without an Act of Parliament, you would not have been surprised by the ruling. In fact, the Internet has been brimming over with reports from lawyers and academics suggesting that it would be constitutionally illegal to do so.
The Daily Mail was quick to point out that Lord Chief Justice, John Thomas, the more senior of the three judges in the High Court who made the controversial ruling, was a founder of the Euro Law Cub. ‘Why, he is nothing but a lily-livered, Europhile – a Remainer under the bed.’ Read on, and the same Mail piece points out that he ‘has also been critical of European judges,’ and in 2014 ‘he spoke out in favour of Parliament’s right to decide which crimes were so serious an offender should never go free.’
But that is media spin for you. Present the veneer of balance, by stating two sides of an argument, by putting one side in the headline, the other in the body text.
The reality is that the EU referendum was supposedly about giving UK parliament sovereignty. In the UK, we have a parliamentary democracy, we don’t have a president – we have MPs who we voted for. That is how it works. Theresa May was not elected as President, she has no mandate to accelerate the UK away from the EU without being overseen by parliament.
MPs would not dare quash the decision of the EU referendum, but despite the protestations of the Brexit supporting media and politicians, the truth is that the vote was ambiguous. Mrs May thinks she knows what Brexit means, but it is far from clear that many of those who voted Leave had the same understanding.
Then again, Mrs May is a canny one. She surely had no shortage of legal opinion whispered in her ear that it may illegal to begin Article 50 without an Act of Parliament.
She now stands on the high ground. She can say to her electorate, ‘well you know that I tried to put your wishes into practice, but the judges got in my way.’ She comes out of this, stronger than ever.
Meanwhile, the EU, many of whose members are desperate to find a way to stop Brexit, has an opportunity to compromise and find a way to appease Brexit supporters.
What we can say is that the odds of an election next year are much higher – but there is a question mark. It has often been said that the UK should agree its terms with the EU and then hold an election as a de facto second referendum. But that makes no sense, a 2017 election will be a battle between May and Corbyn, won’t it? How can that also be a vote on Brexit mark 2?