The 03/11/16 Court ruling on Brexit. Not so much the Judiciary v the Executive, more the Judiciary v Us Oiks.

The abiding principle of English Common law is reasonableness. Judgments are made aided by statutes and precedents, and the judgments themselves can be used as precedents in future cases. Without the more prescriptive codes of, for example, Napoleonic law, the principle of what a reasonable person might think guides those sitting in judgment. It seems a good criterion and has served us well.

The separation of the judiciary from the government executive is essential for democracy. It’s the reason why it’s possible to go through the courts to call the government to account if we feel they’re exceeding their powers. On the face of it, the recent High Court’s ruling – that Article 50 cannot be invoked without Parliament’s support – seems that this may be such an occasion. However, the requirement of parliamentary support in a decision to leave the EU was from the time when the UK agreed to an accession treaty to join the Common Market (as it then was) in 1972. There was no referendum, and in fact at the time no referendum had ever taken place in the UK, so the requirement for parliamentary involvement in leaving the Common Market didn’t anticipate one in the legislation. Lest m’luds forget, the referendum is now part of the UK constitution.

For whatever reason, the judges have chosen to ignore the referendum in their interpretation of what constitutes upholding parliamentary sovereignty. The government promised to abide by and act on the result of the referendum. If anyone had any doubts about what that meant, then perhaps the challenge should have come in at that stage rather than after the referendum. Otherwise it could be seen for what it actually is, the losing side trying to frustrate or even reverse the decision to leave the EU.

It’s perhaps not surprising that some judges could come to such a conclusion. Their criminal law background would clearly mean they see themselves as part of the process that defends society against those who would pose a threat. However, they sometimes have to make judgments between parties where identification of the bad guys isn’t quite so clear cut, such as in public enquiries. On such occasions it’s interesting to see what specific part of society they feel is more worthy of protection. Very frequently it seems that the protection of the government or perhaps more specifically the establishment, of which they themselves are members, is the priority. We only have to look at the number of enquiries held on Hillsborough and Iraq to indicate judges’ readiness to either exonerate the government or delay proceedings until those implicated have either died or are long retired.

However, in this case the executive is delivering the promise of abiding by the referendum. Clearly the judges felt that the will of the people and indeed referenda are the greater threats to the constitution and  the establishment. Gina Miller et al are being outrageously disingenuous by saying they are in any way upholding the UK constitution.  Ironically they support remaining in the EU which has clear and stated political ambitions towards a United States of Europe; this would ultimately mean jettisoning the whole of the UK constitution as we know it.

As difficult as it is to seamlessly incorporate referenda into the UK constitution, one thing is clear. Even in a representative democracy, if a specific question is answered by the people in a referendum, it doesn’t need picking over in Parliament by our representatives. They have more appropriate matters to attend to. It would be good to think that common sense and reasonableness will prevail in next month’s High Court appeal. The referendum should unquestionably have priority over what went before. The UK government can then fulfil its promise to expeditiously exit what was, when we previously voted for it in 1975, a trade agreement. Never mind about the sovereignty of Parliament after a referendum vote, what about Parliament and the Judiciary recognising the sovereignty of the people’s decision?