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The unhinged backlash to the High Court’s Brexit ruling

4 November 2016

1:50 PM

4 November 2016

1:50 PM

As a general rule, any day the government loses in court is a good day. So yesterday was an especially fine day. A delicious one, too, obviously, in as much as the fist-clenched, foot-stamping, whining of so many Brexiteers was so overblown and ludicrous it toppled into hilarity. People who shouted for months about the urgent need to restore parliamentary sovereignty now reacted in horror to the restoration of parliamentary sovereignty. ‘That’s not what we meant’, they spluttered. We meant governmental supremacy only when it suits us.

Well, tough. A certain amount of squealing was only to be expected since, if Nigel Farage has taught us anything, it is that the Brexit-minded really don’t like it up ’em. But, still. The reaction to yesterday’s High Court decision throwing responsibility for triggering Article 50 to parliament has been, well, unhinged.

Brexit will happen because the people have voted for Britain to leave the European Union. Recognising this, plenty of MPs who themselves voted ‘Remain’ will authorise the beginning of the process by which the UK removes itself from the EU. Because, far from disrespecting the instructions delivered by the electorate, most MPs (like most people who voted to Remain) accept this is what the people want and, having expressed that view, they deserve to get it.

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There’s every difference between that and granting the government increased powers of executive fiat, however. All the court has done is remind the government that the legislature has rights too. And, as a matter of law not politics, their argument seems persuasive. So we may savour the irony of people who would ordinarily mark their compass by Dicey howling against a judgement entirely in accordance with standard Diceyan theory. Oh well.

But – and sensible, moderate, ‘Leavers’ will have to forgive me here – a hefty chunk of the ‘Leave’ movement has no time for such constitutional niceties. This morning’s Brexit press certainly doesn’t. On the contrary, it reminds us that there’s always a large appetite for illiberal authoritarianism of the kind plainly favoured by a significant proportion of the pro-Brexit press and public.

Not, if I may digress, that such bullying is limited to the Brexiteers. Readers with good memories may recall that the SNP threatened to withdraw funding from the Supreme Court after it issued rulings the Scottish government deemed unhelpful. Alex Salmond suggested it was time the court’s powers were diminished. So politicians of all kinds – but especially the nastier type – are always at it. That doesn’t mean they must be indulged. And not the least disturbing aspect of this latest judicial brouhaha is the manner in which so few senior Conservatives have seen fit to tell their colleagues to cease being so silly.

Instead there’s howling about ‘unelected’ judges as though an independent judiciary, insulated in this fashion, is a bad thing and not a feature of a civilised system. That’s laughable enough but not quite as biscuit-taking as the sight of MPs and columnists on national newspapers protesting against the ‘elite’, oblivious to the manner in which, by any reasonable measure, they are part of the ‘elite’ against which they rage. I mean, come on.

It bears repeating – because there are so many slow learners out there – that no-one endorsed a particular Brexit proposition. The people instead gave a general instruction. One that will undoubtedly be delivered but that, within which, is open to myriad interpretation. It seems, or would seem if so many people had not taken leave of their senses and judgement, only right that parliament should have an opportunity to consider these matters properly. Not to frustrate the people’s will – the people said what they wanted and deserve to get it good and hard – but to facilitate it. That’s all yesterday’s ruling does; that’s what will happen next.

But if you ever wondered what might happen if we were by some ghastly accident to hand Ukip the keys to the kingdom, the reaction to yesterday’s ruling tells you all you need to know. It would mark the eclipse of liberal Britain, replacing it with a grubby and authoritarian political culture that would be as unpleasant as it would be shameless.

Most ‘Leavers’ aren’t like that and you’d like to think at least some of them are just a bit ashamed of what they’re seeing today. In like fashion, most ‘Remainers’ accept that Brexit must happen and the important thing now is to try and make a success of it. The referendum result cannot and will not be undone but its meaning still merits debating.

The rage is something else, however, and, characteristically, out of all proportion to the offence that has itself been imagined. So this has been a depressing, if also uncomfortably revealing, 24 hours. A reminder too of how easily so many of the things the ‘Leave’ campaign said it was campaigning for can be surrendered at the first hint of inconvenience. If too many ‘Leavers’ are looking like playground bullies this morning there may, I suppose, be a reason for that.

Very well. If it really is the judges versus the people and parliament versus the government then we have a choice to make and it will be a revealing one. For my part, I choose an independent judiciary and a sovereign parliament over the ‘people’ and an over-mighty executive. Your mileage may differ, of course but there you have it. A nation of laws, you know, if you can keep it.

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