Brexit case reaction: a worrying attack by the press on the rule of law

By Ray Perman, Director

The most worrying aspect of the Brexit debate so far is the vicious attack on the rule of law by the tabloid press following the ruling by the High Court that parliament must vote before the Government can trigger Article 50, the process which will begin the UK’s exit from the European Union.

The front page of the Daily Mail showed pictures of the three judges with the splash headline “Enemies of the people.” Under the Sun’s heading “Who do you think EU are?” it claimed “loaded foreign elite defy will of Brit voters,” a reference to Gina Miller, the fund manager who was one of the complainants to the High Court and Deir Dos Santos, a hairdresser who was another.

Although both were born outside the UK, both are British Citizens. The court happened to choose their petitions as typical of the other complainers. Where they were born was irrelevant to that choice and to the outcome of their cases.

The Express, with a Trump-like distortion of the truth, said “three judges blocked Brexit.” The judges have not actually stopped Britain’s exit from the UK and the judgement makes that clear:

“It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law. The policy to be applied by the executive government and the merits or demerits of withdrawal are matters of political judgement to be resolved through the political process.”

What the judgement did do was to reassert a 400-year-old constitutional principle that the monarch (or in this case the Government, using the Royal prerogative) cannot make or abolish laws without the consent of parliament. In this the judges were standing up for the rights of ordinary people, as represented by their elected MPs, to be protected from the exercise of arbitrary power by the government of the day.

An attack on judges and their determination of the law of this ferocity is, in my adult life at least, unprecedented. Equally worrying is the absence of any condemnation of it from the Government.

What happens next? The Government has said it will appeal to the Supreme Court, although that runs the risk that the judgement will be upheld. It will also delay the process, making it difficult to meet the Prime Minister’s deadline for invoking Article 50 by the end of March.

Much better would be to accept the judgement, introduce a short Bill and allow MPs their say. It is very unlikely that there would be a majority against Brexit (too many MPs would fear the wrath of their Brexit-voting constituents) and the Government could argue that the mere fact of beginning the process of resigning from the EU does not affect Britain’s eventual relationship with the Union.

This would effectively put off the ‘hard’ versus ‘soft’ Brexit argument off until after Article 50 had been invoked.

In the meantime, Mrs Theresa May has other problems to confront. The court ruling has emboldened the opposition and is likely to unite them around a ‘soft-Brexit’ line – wanting to keep Britain in the single European market, or at least the EU customs union. She has managed to keep the terms on which Nissan were persuaded to invest in the UK, rather than in other EU countries, secret for the time being, but that has opened the prospect that there will now be a queue of large employers, headed by the investment banks, also wanting special terms.

And she has two by-elections to fight. One caused by her decision on the third runway for Heathrow, another directly by her actions in trying to by-pass parliament over the European issue. Life will not get any easier for her.