Over on the home page, Tom Rogan attacks yesterday’s ruling by the High Court in London that the British government must secure parliamentary approval before pressing the button (notification under Article 50 of the Lisbon Treaty) that begins the formal exit procedure from the EU. The government has appealed and the Supreme Court will decide the matter in December.

To Mr. Rogan, “this is a deep judicial strike at the democratically enacted will of the British people”.

I’m not convinced. As regular readers around here will know, I have supported Brexit for quite some years. I still do. Nevertheless, I do not support the idea that the referendum result plunges the rest of the British constitution into suspended animation. If Britain is to leave the EU, it must do so according to the law of the land. The EU has done a great deal of damage to the UK’s constitution. It would be ironic if Brexit were to do a bit more.

There are a couple of things to note. Firstly, the referendum (as Mr. Rogan acknowledges: And do take the time to read his piece in full) was advisory. In my view, that advice ought to be followed and there is a presumption that it will be followed. Nevertheless it does not have to be followed. Secondly, it is indeed not entirely clear who has the power to initiate the formal Brexit procedure. The matter is not, under British law, straightforward. Can, as a matter of law, pressing the Article 50 button be left (courtesy of the doctrine of the royal prerogative) to the prime minister, or should parliament decide? That the courts might have a view on this is not altogether surprising, although, in a country where there is no written constitution, and the frontier between the legal and the political is hazy, the courts should go carefully. The Supreme Court may decide that the High Court has not gone carefully enough. Or it may come to the conclusion that the lower court simply got the law wrong. We shall see.

The reaction to yesterday’s ruling has not been altogether edifying.

The Daily Express returned to well-trodden territory – 1940:

[T]his country faces a crisis as grave as anything since the dark days when Churchill vowed we would fight them on the beaches.

Well, no.

Not to be outdone, the Daily Mail branded the three High Court judges ‘enemies of the people’. An earlier online edition of the paper announced that one of the judges founded a “EUROPEAN [sic] law group, and [that] another [had] charged the taxpayer millions for advice. As for the third, he “is an openly gay ex-Olympic fencer”, attributes apparently as suspect as charging the taxpayers millions for advice and founding a EUROPEAN law group. Good grief…

There was also plenty of grumbling in the press and elsewhere about “unelected judges” of a type seen in any democracy on those occasions where the constitution is seen as working against the popular will. That a constitution will sometimes operate like this is inevitable, and so is the fact that people will push back against it. That they do so is not, whatever some Remainers may claim to believe, evidence of some dark turn in British politics.

As for the attacks on the judges, some were examples of hyperbole, some represented the tactics of the gutter, and some (calls for the offending judges’ dismissal) revealed a poor understanding (I’m putting it gently) of the importance of an independent judiciary. That said, we live in an age when it’s not exactly unknown for a political agenda to smuggled in through ‘interpretation’ of the law. Under the circumstances, there’s nothing wrong with at least asking whether that is what’s happening here. Equally, for all the fine talk of the impartiality of judges and the majesty of the law (full disclosure: I am an attorney by training), it is well understood that even the best judges may struggle to cut themselves free from the biases that are the product of their background and, for that matter, who they now are. The greater part of Britain’s establishment is opposed to Brexit. It is neither sinister nor shocking that some Brits might suspect that some senior judges may be predisposed to do what they can to block the road away from Brussels.

Meanwhile, writing for Conservative Home, Mark Wallace argues that even if there is, eventually, a vote in the House of Commons on Article 50, MPs will approve it:

The overwhelming majority of the Parliamentary Conservative Party now wants to get on with implementing the outcome of the referendum, regardless of which side they were on in the campaign. A pleasantly surprising number of Labour MPs have also taken on board the message from their Leave-voting constituencies. Having gone through the unpleasant experience of being at loggerheads with their voters on the doorstep, they rightly don’t want to defy them now they have spoken. The referendum may have been advisory, but its advice was clear – and when seen in pseudo-First Past The Post terms, ie in terms of MPs’ constituencies, Leave won a two thirds majority. Ultimately, de facto sovereignty lies with the electorate, and politicians value their seats….

Wallace then asks whether MPs might attach conditions to that approval (such as it being conditional on the UK remaining in the ‘Single Market’), a complex topic for another time, before turning his attention to the House of Lords (the other half of the UK’s legislature) which would also be required to give its approval:

The House of Lords could bog the process down for longer. For a start, the number of europhiles in the Upper Chamber is so high that it makes the Commons look representative on the issue by comparison – we can expect the Kinnocks of the world to do everything they can to frustrate the progress of Article 50. Just as importantly, they are of course unelected and thus immune to the political motivation of 17.4 million voters breathing down their necks.
It would still be a highly questionable move for an unelected chamber to try to pit itself directly against the outcome of a referendum which won the backing of more voters than any other issue or party in British political history. Doing so would threaten the legitimacy of the Lords, as well as run the risk of May calling a General Election to assert her mandate – an election which would surely spell disaster for the Labour Party in particular. Nonetheless, they may yet try it.

Complicating matters still further, it’s worth adding that, thanks to one of Cameron’s more poisonous legacies—fixed term parliaments—“calling a General Election” is not as easy as it once was.

Interesting times.

Wallace concludes:

In short, this judgment doesn’t have half the impact some people on each side seem to believe. Article 50 will still go ahead, and we will still leave the EU. There’ll no doubt be more battles to come, but when was that not the case?

Indeed.

And, in many respects, the most important of those battles will not be over Brexit itself (as Wallace says, it’s going to happen) but over the form that Brexit will take. The answer to that is that (as I may possibly have mentioned before) it needs to be something close to the deal enjoyed by non-EU Norway, either as an interim step or for longer. Whether it will be is an entirely different question.

To repeat myself, interesting times.