JUDGES IN THE DOCK
“There may not be any tanks on the streets, but be under no illusion,” said Richard Littlejohn in the Daily Mail, “what we’re seeing now is an attempted coup designed to overthrow the will of the British people.” Last week, three “unelected judges” sided with a motley crew of “sore losers”– a City fund manager, a Brazilian hairdresser, various wealthy expats – who had brought a court case designed to scupper Britain’s departure from the EU. The High Court found that the Government could not begin withdrawal, by triggering Article 50 of the Lisbon Treaty, without a parliamentary vote. The court “should have dismissed the case as an abuse of the legal process”, said The Daily Telegraph: it was a ruse designed “to overturn the decision taken by a majority of voters” on 23 June. This was a political dispute, and judges should have “kept out”. Now Britain faces a “constitutional crisis”.
“Everyone needs to calm down,” said Iain Martin in The Observer. Far from being a “judicial coup”, this was “a thoroughly traditional” judgment. Three top judges – the Lord Chief Justice Lord Thomas of Cwmgiedd, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales – merely reasserted a basic principle: only Parliament can change the law. “This ought not to be a controversial point,” said The Spectator. Parliament is sovereign; the EU only has power in the UK because Parliament allowed it, when it passed the European Communities Act of 1972. “If that power is to be retrieved, then Parliament must vote to reclaim it.” This decision will not derail Brexit: MPS would not dare vote down the referendum. And if it throws the Prime Minister’s timetable for leaving the EU into disarray – well, “it is not for judges to clean up a mess made in Westminster”.
“It is dismaying that those who campaigned so passionately to reclaim British sovereignty” appear not to have “the first idea” about how it works, said The Observer. The reaction to the judgment was “hysterical” and full of “bile”. Communities Minister Sajid Javid called the decision an “unacceptable” attempt to “frustrate the will of the people”. Nigel Farage warned that there could be riots. The Daily Mail’s front page dubbed the three judges “enemies of the people”, and examined their backgrounds
for signs of pro-european and liberal prejudice – disgracefully hinting that one was suspect because he was “openly gay”.
The idea that the judges were part of some conspiracy is “obnoxious”, said Melanie Phillips in The Times. “The only issue is whether they were right.” And many constitutional lawyers doubt that. The argument is that the Government can make international treaties, using the royal prerogative, but cannot change domestic law without consulting Parliament; leaving the EU would affect citizens’ rights, so a vote is needed. But actually, many treaties – on taxation, for instance – do affect citizens’ rights. Besides, MPS had already voted, by six to one, to hand the decision “directly to the people”. “The decision about our membership should be taken by the British people, not by parliamentarians in this chamber,” declared Philip Hammond, when he proposed the 2015 Referendum Bill.
It seems disingenuous of pro-eu types to suddenly set so much store by parliamentary sovereignty, said Dominic Lawson in The Sunday Times. As we all know, the real aim of the died-in-thewool Remainers is “to delay and obstruct the invocation of Article 50”, hoping that the British people will “repent of their insanity” before it’s too late. The Government has now appealed to the Supreme Court, said Simon Heffer in The Sunday Telegraph – probably a waste of time and money. It would be better to “introduce a one-clause bill now to trigger Article 50”. And if MPS try to sabotage the withdrawal, Theresa May should call an election.
The rule of law was not seriously threatened by last week’s “populist growl” from the press, said Janan Ganesh in the FT. “You do not become a High Court judge by quaking before a profession as menial as mine.” Even so, “it felt like a hairy episode in the civic life of the nation”. The PM and the Justice Secretary, Liz Truss, only gave belated and lukewarm support to the judges under fire, which is alarming. “If Britain’s extrication from the EU is to avoid fulfilling the ugly promise of recent weeks, with voter pitted against MP, MP against judge, judge against editor”, May will have to show something that has often been lacking so far in her short career as PM: “real leadership”.
“Those who campaigned for British sovereignty appear not to have the first idea how it works”