What a stroke of good fortune that the Supreme Court was created in 2009. If not, this latest Brexit legal jamboree would be happening in what was, before that time, the highest court in the lands – the House of Lords. Imagine: the limits of the rights of parliament being decided inside parliament itself. The criminal passing sentence on itself. For post-truthers, propagandists and – in simple terms – downright liars, those sorts of opportunities don’t come along very often.
The best way to understand what’s happening in the Supreme Court today is to forget the referendum ever happened. It’s got nothing to do with it. If a British Prime Minister – let’s call her Theresa May – wandered into work one morning and said, “Right, I’m taking the UK out of the European Union. There’ll be no parliamentary vote on the matter. There’s this thing called Article 50, and I’m going to trigger it”, then the ensuing legal row would not look very different from the one that has now resumed in the Supreme Court.
You don’t necessarily need to have strayed within 100 yards of a Liberal Democrat in the last six months to know that the referendum was “advisory” (but it helps). Neither its result, nor the mere fact of it having taken place, has any legal bearing on the specifics of the case: namely whether it is the Government, and not parliament, that has the power to trigger Article 50, and formally begin negotiations to leave the European Union (negotiations which, more and more lawyers seem to think, do not even necessarily need to end in Brexit).
Had there been no referendum on the matter, no manifesto commitment, a number of obvious natural checks and balances would be in play, but there is no guarantee they would work. The Conservatives could topple their leader, but the likelihood of her being replaced by an even greater Eurosceptic – given the sheer tenacity of that wing of the parliamentary party, coupled with the views of the rank and file – must be considered high.
The opposition could bring a no confidence motion in the Government, but it tried that with its own leader and he returned with an even larger mandate than before. Can you bring down a Conservative Government, and one suddenly committed to leaving the EU, by forcing it into a general election against Jeremy Corbyn? You have to doubt whether Labour’s MPs would be all that keen on finding out.
No, the referendum does not legally compel any government to do anything. How can it? Parliamentary democracy is all but incompatible with referendums on government policy, which is why tyrants and demagogues up to and including Adolf Hitler deployed the latter to bring down the former.
Some referendums, in modern, functioning states are legally binding. The Alternative Vote referendum in 2011 was, but that was a choice between two clear electoral systems. California regularly holds referendums on new laws, but they’re backed up with extensive legal documents, the new laws codified in full, to which the voters say yes or no.
Leaving the European Union is not a simple yes/no question, whatever Nigel Farage and the rest might tell you. It is extravagantly complex, with a bewildering array of options to be fought over during an uncertain timeframe.
Retroactive critics of the referendum, from Ken Clarke to Sir David Attenborough, have all said how referendums cannot fit within a system of parliamentary democracy, deploying arguments essentially invoking Edmund Burke’s famous Speech to the Electors of Bristol of 1774, that a politician is elected to use his judgement, and “he betrays, instead of serving you, if he sacrifices it to your opinion.”
Unfortunately, this old idea, of electing an expert to make your decisions for you, has also been put at risk through the willingness of certain elected “experts” to take to social media to advertise their utter lack of expertise on the issues at hand. David Davis’s war on Piers Morgan and Marmite really could sink the whole system.
According to Jeremy Wright, the Government’s Attorney General and a lawyer of modest achievements, who, had he not become an MP, would be highly unlikely to be leading a case in the Supreme Court, the Government’s prerogative power to deploy Article 50 is not a constitutional anomaly, an “ancient relic”, but in fact essential to “maintain control”.
Maintain control, you say? So it was never lost after all, then. Who are we taking it back from?
Whatever happens in court, one thing is not in doubt. By March, Article 50 will have been triggered, and the due process the nation is currently enjoying with such dramatic fanfare can begin in earnest: namely, the mother of all paydays for the lawyers.
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