Brexit and the judges


There’s been a grand hullabaloo in the UK after our High Court ruled that the government requires the approval of Parliament before triggering Brexit and beginning negotiations with the EU.

That’s a highly-condensed account of a landmark constitutional decision.  What I’m concerned with in this post is the media backlash, which has seen emotion get the upper hand of reason.

First, the judges are there to rule on the law.  They consider the legislation and the cases through which the rights and obligations – and the powers and limitations – of the Crown (now acting through the government) and Parliament have been determined over centuries.

If the law doesn’t give people the result they want, don’t blame the judges.  I’m not a constitutional lawyer, but it seems to me that the difficulty in this case is that the referendum mechanism and the potential for a Brexit outcome weren’t aligned with the existing legislation and treaties.  The result is that Parliament is left with rights that must now be acknowledged – unless the Supreme Court rules otherwise.

Secondly, the headlines I’ve seen refer to the judges ignoring the will of the people.  That isn’t a concept the judges can recognise, because it isn’t relevant, as a matter of law, to the questions before them.  (For anyone who thinks this is an opportunity to have a We the People moment leading to a written constitution, the will of the people is too vague a concept to feature.  And a written constitution – as with our largely unwritten one – still has to be interpreted by the courts.)

Thirdly, I’m not sure anyone can say what the will of the people is in relation to Brexit.  There was a referendum on whether to leave the EU or to remain within it, but not on the terms of an exit.  What’s become apparent in the months since the referendum is that Brexit means different things to different people.  Even the terms “hard Brexit” and “soft Brexit” lack any specifics.  If it comes down to what people (rather than the people) want, I suspect you’d get a different list from everyone you ask – as to priorities, as well as specific points.  And that’s before we touch on technical niceties of what people wanted at the time of the referendum vote, which might be a more accurate test of the will of the people in this context.

Brexit was always going to involve tensions, difficulties and existential differences of opinion.  But it needs to be conducted in accordance with the law, wherever that takes us.  It’s entirely inappropriate to denounce judges for doing their job.

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