Brexiteers wrongly in a pickle over High Court ruling

By Sam Blainey November 26, 2016 9:00 am

What a pickle the Brexiteers find themselves in since the High Court ruled that Parliament must have a say on the triggering of Article 50. Having spent the past forty years campaigning for the restoration, in their words, of Parliamentary sovereignty, they have now spent the past forty days clarifying that it wasn’t that sort of Parliamentary sovereignty they wanted.

The High Court clearly took the right decision. It was a judgement taken by British judges, sitting in a British court, ruling on a case bought by British citizens to simply bolster that Parliamentary sovereignty. And it seems fairly straightforward: we did not enter Europe by Royal Prerogative, we should not leave it by Royal Prerogative.  The idea that the Government, led by a Prime Minister who has no mandate from the British voters, can take the referendum result as carte blanche to begin the most important political, economic, social and cultural process in Britain’s recent history as and when they wish with no Parliamentary oversight at all is nonsense. It is the replacement with one overweening executive in Brussels with another in Whitehall. Some Parliament, some sovereignty.

The most bizarre aspect of this saga has been the wildly disproportionate reaction to what is a pretty simple judgement that Parliament has the right and the power to vote on when Article 50 should be triggered. Not that Brexit shouldn’t happen. Not that the referendum should be rerun. Not that the Queen should be replaced on our banknotes with a picture of Charles de Gaulle giving the thumbs-up. Just that Parliament should have a vote on the start of something that is pretty significant.

And if that delays the process of Britain leaving the European Union then tough. Perhaps David Cameron’s Government should have considered this when pushing through such a loosely-drafted panic measure to control his Conservative Party. Perhaps the present Government could have been a little more forward-thinking and open immediately after the Referendum in discussing with Parliament when Article 50 will be triggered.

This failure in thinking has led directly to the shrill Brexiteer voices questioning the impartiality of Britain’s independent institutions and the hysterical tabloid front-pages demanding the immediate implementation of ‘the will of the people’. This is the sort of rubbish that my dad used to spout in his teenage Leninist phase back in the 60s. Fortunately we live in a mature, developed democracy rather than a tinpot Bolshevik state. We don’t have ‘people’s judges’ in lockstep with ‘majority’ thinking here, much to the amusing fury of one wing of the increasingly unconservative Conservative Party. Instead the ‘the will of the people’ is subject to the checks and balances aplenty, including an impartial legal system.

But of course, ‘the will of the people’ is a misleading phrase. The will of a small majority of the people would be more accurate. And here’s the deeper point; like most democracies there is an element of majoritarianism in Britain. What most people want, most people vote for, most people eventually get. But just because 50% plus one vote for a particular course of action, this does not mean that the views of every other citizen in the country should be ignored or dismissed. That is why in Britain a representative Commons has grown up alongside a more rarefied court system; one to balance the other.

The Supreme Court should ignore the increasingly intolerant wails of rage from assertive, angry Brexstremists and recognise that Parliament represents every single Briton – including, gasp, minorities. Parliament should be allowed to do its job, represent the 48% as well as the 52%, and scrutinise, question and approve. That, in the end, is what taking back control means.

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