‘Enemies of the people’ start Brexit appeal
As all 11 British Supreme Court judges launch the Brexit hearing today, is it wrong for papers to attack them as biased and out of touch? Or does the judiciary deserve strong criticism?
When three High Court judges ruled that Theresa May could not trigger Article 50, which begins the formal process of leaving the European Union, without the consent of parliament, it was called the most high-profile legal intervention in British history.
Many who voted to leave the EU were revolted by the decision. More people voted for Brexit than have ever voted any British party at a general election. The high court judgment, they said, was a devious attempt by a well-heeled judicial elite to subvert a democratic mandate. In one memorable — and, for many, infamous — headline the Daily Mail called them ‘Enemies of the people’.
One month later, and we come to the most high-profile appeal in British legal history. If the government wins, they will be able to press ahead with Article 50, which they plan to do in March, without a vote in Parliament. The people made their decision, they say, and it is up to the government to implement it.
The appeal will take four days, with the decision not due until the new year.
Gina Miller, an investment manager and the lead claimant in the legal fight to get Parliament to vote on Article 50, went to great lengths to say that this was not about being against Brexit, though she did support Remain. It is, she says, about ‘legal process’.
But after a referendum campaign where the rich and powerful overwhelmingly supported continued EU membership, ardent leavers suspect foul play.
One of the judges involved, Lord Thomas, was a founding member of the European Law Institute, which says it works towards the ‘enhancement of European legal integration’.
In November the Supreme Court’s most senior judge, Lord Neuberger, was urged to stand down after it emerged that his wife had posted a series of anti-Brexit tweets. He responded that this has no effect on his ability to do his job.
Writing in The Spectator, Joshua Rozenberg says: ‘The test for the justices is to persuade the public that they are deciding this case according to law, not politics.’ And if they cannot, are they really ‘enemies of the people’?
To call judges ‘enemies of the people’ is an incredibly dangerous route to take, say some. It sets a precedent for accepting government power without checks and balances provided by the judiciary. Judges are highly qualified, responsible people. To label them traitors for doing their job is disgraceful.
Hang on, say others. The government promised to obey the will of the people, and if judges jeopardise that promise they will inevitably be seen as ‘enemies of the people’. The backgrounds of these judges suggests that, whatever they say in public, they would be quite happy for Brexit not to happen at all.
- Can we trust judges not to be biased?
- Should the public vote for individual judges?
- Write down three reasons in favour of the judges’ decision, and then three reasons why it might have been wrong.
- Many people who campaigned for Remain are now being branded as ‘sore losers’. As a class, discuss whether you think this is fair.
Some People Say...
“Judges are far more in touch with issues of society than ordinary people”
What do you think?
Q & A
- This doesn’t sound like it affects my everyday life.
- The decision to leave the EU will have a huge effect on Britain. It will affect the whole way the UK is governed. But this is about more than that: the judiciary is a very important part of what makes a country free and democratic, by ensuring the government complies with the law. If they are seen to be influenced by politics, then their legitimacy would come into question.
- Would Parliament vote against triggering Article 50?
- Probably not. Almost two-thirds of MPs represent constituencies where a majority voted Leave. Some in the Liberal Democrats, Labour and the SNP, and even one or two Tories, may vote against, but many who supported Remain will still vote with the government in order to avoid a backlash from their constituencies.
- High Court
- Unlike the US Supreme Court, the British High Court cannot ultimately overrule the government. In the UK (unwritten) constitution, Parliament reigns supreme. If it does not like what the judges decide it can obviate a judgment by passing legislation.
- Article 50
- Article 50 is effectively a stop-watch, giving the EU and the country that wishes to leave exactly two years to conduct negotiations. So if the Government triggers it in March 2017, the UK will cease to be a member of the EU in March 2019.
- More people voted for Brexit
- The number voting to leave the EU was 17.4 million, whereas 11.3 million voted for the victorious Conservative Party at the 2015 general election.
- Daily Mail
- The second most popular newspaper in the UK (after The Sun), selling 1.6 million copies every day. Compare this to The Times (404,000) and The Guardian (just 164,000).
- The people made their decision
- The government spent £8m on sending a pro-Remain leaflet to every house in the UK prior to the referendum. It stated: ‘The Government will implement what you decide.’