Yesterday, the High Court in London (third in judicial primacy after Britain’s Court of Appeals and Supreme Court) made a stunning ruling against Brexit.
The British Government, it said, currently lacks the authority to exit the European Union. To trigger Article 50 of the Lisbon Treaty (effectively the EU Constitution) and thus begin formal Brexit negotiations with the EU, Parliament must first authorize that action. The Supreme Court will hear the government’s emergency appeal in December.
Whatever the outcome, this is a deep judicial strike at the democratically enacted will of the British people.
After all, the Brexit referendum, held on June 23, asked voters a simple question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” The response given by Britons was equally clear. The referendum turnout was the highest of any British vote in 24 years, and 51.89 percent of voters – 17,410,742 people — chose “leave.” That majority represented a solid three-point margin (amounting to more than 1.25 million people) over “remain” voters. And Britons knew full well what they were voting for. The passion that defined both sides of the referendum campaign was a testament to its impending consequence — as was the mixed elation and despondency that greeted the result.
Correspondingly, the court’s rejection of British voters has provoked a constitutional crisis. Popular sovereignty – the explicit facet of democracy for which a referendum exists to give voice — has been cast aside. And this ruling cuts at the central import of the Brexit vote. As I noted following the referendum, the most crucial issue involved in Brexit, was sovereignty – and “the widely held belief that the subjugation of Parliament and the judiciary to the bureaucracy in Brussels was no longer tolerable.” Now the freedom of Britons is subjugated to their own judicial bureaucracy.
Still, the court’s ruling is sadly unsurprising. Since the referendum, numerous politicians and judicial activists have conspired to prevent Brexit. Representing the consensus of the establishment in London, they are determined to manipulate any and every tenuous political and legal angle at their disposal. As if to illustrate the odd collection of individuals involved in the prevent-Brexit movement, the claimant behind yesterday’s Brexit challenge was an otherwise unknown private citizen.
The court’s rationale rests on flimsy legal argument. First, there is a clear constitutional tradition that referendums bind Parliament under English law. Tradition is relevant here because the U.K. has no written constitution. The strongest precedent for the present case is the 1975 referendum on continued membership of the European common market. Responding to that verdict, the longtime socialist member of Parliament Tony Benn remarked, “When the British people speak, everyone, including members of Parliament, should tremble before their decision and that’s certainly the spirit with which I accept the result of the referendum.”
Second, in ruling against the government, the court argued that the principle of parliamentary sovereignty means that no referendum – unless explicitly written to the effect – is anything other than advisory. Of course, this injects absurdity into the democratic system. Parliamentarians knew what they were voting for in authorizing the referendum, which they did, by a ratio of six to one. To say now that the spoken will of the people is not binding represents a self-evident and grievous stab at the aorta of any democratic authority: the people.
Third, while European Union law is supreme over English law, EU law, as it relates to nations’ withdrawing, is clear. Article 50 of the Lisbon Treaty clarifies that “any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” The obvious logic that flows from this reading is that the British government – vested with popular authority from the referendum – may withdraw from the European Union. Attempting to rebut this principle, the High Court ruled that “the [government] has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend . . . and on whose continued existence the wider rights of British citizens#…#also depend.”
There’s a deep arrogance to this flawed jurisprudence.
But think carefully on this language: “on whose continued existence the wider rights of British citizens also depend.” The court is showing its biased hand in favor of the European Union project. It regards British rights as wholly dependent upon European law. Even though the British government has the authority – and has expressed the intent — to pass laws that retain currently EU-guaranteed rights post-Brexit, the court pretends the EU is the guardian of British individual freedom. There’s a deep arrogance to this flawed jurisprudence. That truth is best evidenced by the court’s concluding qualification: “This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.” Again, reread the language. By its words, the court renders popular sovereignty as worth only the vague nothingness of being “assessed and taken into account elsewhere.”
The consequences of yesterday’s ruling are clear. The democratic authority of the British people, burnished by the Blitz and Magna Carta, is now in limbo. Forming cause from arrogance, the judiciary has acted to restrain British freedom. June’s referendum had a commonly understood purpose: to devolve the decision about the U.K.’s future in the EU to British citizens. The outcome of that decision was clear: Brexit. The Supreme Court must remember those whom the High Court has forgotten: its master, the British people.