The reaction to the high court’s Brexit ruling shows that the referendum was never about sovereignty. It was about lashing out at the establishment.
- By Alex MassieAlex Massie writes for the Spectator, the Times, and other publications.
On Thursday morning, a panel of three of England’s most senior judges ruled that Parliament must authorize the process by which the United Kingdom begins the business of leaving the European Union. Drawing on jurisprudence stretching back as far as the early 17th century, the justices confirmed that the government cannot usurp the legislature’s prerogatives. Britain is a nation of laws, they said, and these apply to the government just as much as they do to any other organization or individual.
A reasonable person might think this an uncontroversial decision. That reasonable person would not, however, have taken into account the furies unleashed upon the United Kingdom by Brexit over the course of the last four months. Upon being greeted with news of the decision, campaigners who’d spent months arguing that Britain needed to “take back control” from Brussels raged against this assertion of the very parliamentary sovereignty they once thought so precious. Such are the ironies of our age, I suppose.
Who, after all, were these “unelected” judges to tell the government what it may and may not do? How dare they thwart the will of the people as expressed in the referendum? As Douglas Carswell, the U.K. Independence Party’s only member of Parliament and a leading Leave campaigner put it, the ruling was an example of “shocking judicial activism — these judges are politicians without accountability.” The Remainers, he claimed, “aided and abetted by lawyers,” are “seeking to tell the electorate to sod off.”
The Brexit-supporting press went even further. According to the Daily Telegraph, the standoff was a case of “judges vs the people.” This level of restraint was too much for the Daily Mail, whose front-page headline went a step further, declaring the three judges, in fact, “enemies of the people.” According to the paper, Britain’s judiciary is “infested with europhiles” and there is a danger that, even the Supreme Court (to which the government is appealing Thursday’s ruling) “may allow subliminal prejudice in favour of the EU to influence their decision.”
It’s a point of view, I suppose, though also a pitiful and discreditable one.
The response to the ruling further confirmed the growing suspicion that American-style culture wars have infected British politics. The courts, so long a major battleground in the United States, are now a matter for debate in the United Kingdom, too. Increasingly, it seems as though a court’s legitimacy rests on the extent to which it confirms your own long-existing prejudices.
Perhaps this should not be a surprise. A referendum is a binary choice, even if it happens to produce a muddied outcome. Britain voted for Brexit but, as to the particular kind of Brexit — something which is a matter of no small significance — well, that remains unclear. And so, the battle for what it will look like rages on.
Some Remainers cling to an impossible dream, speculating that the referendum result will be overturned by Parliament. In a technical sense, this is possible: Legally speaking, the referendum was nothing more than advisory — a nonbinding declaration of the public will to 10 Downing Street. Politics dictates otherwise, however. While most MPs backed Remain, most also respect the public’s declared opinion enough to likely swallow their preferences and endorse the triggering of Article 50, thereby beginning the two-year process by which Britain will leave the EU.
Even if they do, however, the ruling means that Prime Minister Theresa May’s ambition to fire the starting gun on Brexit by the end of March 2017 is likely to be thwarted. The Supreme Court will not deliver its own ruling on the case until the new year. Assuming it endorses the high court’s judgment, that leaves just a few months to get the legislation through. Parliamentary maneuvering may delay the outcome further — though it’s unlikely to alter it in the end.
There is an alternative scenario, however. May could call an early general election, to try to secure herself a nice, tractable Parliament — one which would allow the Article 50 notification to sail smoothly through the legislative process. Doing so offers several advantages. In the first place, it would give her government a democratic mandate and the authority it currently lacks. May’s entire agenda would be strengthened by holding and winning an election. That she would win does not seem in doubt: Recent polls suggest the Conservatives enjoy a 16-point lead over a shambolic and rudderless Labour party.
Moreover, an election would allow — indeed, likely force — May to present her own case for Brexit, spelling out what she hopes to achieve from the negotiations with Brussels. Those aims are, for the moment, utterly opaque. The government says it does not wish to “reveal its hand” in advance of the Brexit negotiations for fear that doing so would make it harder for the U.K. to negotiate with Europe effectively. And perhaps it would — but May is not trying to get the best price on a used car; she’s negotiating on behalf of a nation, one that deserves to know the positions being taken in its name.
The reaction to Thursday’s ruling, however, confirms the sense, already apparent during the referendum, that Britain’s Brexit revolution was not just a reaction to the EU’s perceived encroachment upon ancient British prerogatives. It was also a revolt against the establishment, an elite deemed out of touch with “ordinary” voters and indifferent to, and even contemptuous of, their concerns. It was, to borrow from Al Gore, “the people against the powerful” — even if the precise nature of what the people wanted was not necessarily made clear by the referendum outcome.
That in turn reflects the sense in which Brexit can be understood as a symptom of a wider disillusionment, felt across the Western world, with established political institutions and norms. In this fashion, if in few others, Brexit was Britain’s counterpart to the rise of Donald Trump in the United States. Likewise, the populist revolt given oxygen by Brexit parallels the rise of populism in other European countries, including France, Austria, Hungary, Finland, and Sweden.
In the face of these challenges, old orthodoxies suddenly seem feeble. The center finds itself besieged by left and right alike. The experience has been bracing for European liberals who have struggled to find persuasive, or even plausible, answers to the multiple crises of low growth, high migration, economic austerity, and much else that presently bedevil the continent.
The rage against judicial impertinence (as it is deemed to be) should be understood as merely another demonstration of a much wider phenomenon — one best described as the twilight of the elites. Their eclipse is one thing; what will replace them, however, remains to be seen.
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