Old England is Dying: The BREXIT Judgment and After

England is a country committed to the rule of law. There are fundamental rules that constitute its political and legal order. It is a rule that Parliament is sovereign. It is a rule that Parliament makes the laws. The Government’s role is to govern, subject to the authority of Parliament, and in accordance with law.

As between Parliament and the Government, the Courts are bound to uphold and to enforce their distinct roles when called upon to interpret and apply the law. The distribution of responsibility between Parliament, Government and the Courts – the separation of powers – has formed the foundation of English constitutional arrangements since the 17th Century. Taken together with a respect for fundamental rights, it forms the classical English legal and political tradition.

In the BREXIT judgment of 3 November 2016 the High Court has protected the role of Parliament to make laws against an insurgent Government that seeks to arrogate to itself a right to make and unmake laws. It has defended and conserved the constitutional order. That is all. To attack the judges as ‘enemies of the people’ as the Daily Mail has done, is to misunderstand – grossly – the way in which representative democracy works. The people elect Parliament; Parliament makes the laws. In upholding the right of Parliament to do so, the judges are defending the people’s representatives and their right to make laws. The judges are defending the English legal and political tradition.

It is the Government that seeks to alter the law of England’s without Parliamentary warrant. It is the Government that is delinquent. The BREXIT case is not about whether the UK should leave the EU, it is about who should make new laws or alter existing ones in the days ahead: the Government or Parliament.

The Daily Mail should be celebrating this judgment not condemning it. If the UK is to leave the EU, as a result of this case it will do so using laws made by the people’s elected representatives. Instead, in an effort to defend the Government’s attempt to make and unmake law, the Daily Mail advances a populist, anti-democratic, agenda and attacks judges seeking to uphold the rule of law. It targets the judges personally – identifying one as ‘openly gay’ (as if it were a source of shame) and by his Jewish background – and brands them ‘enemies of the people’. Such techniques are the hallmarks of authoritarian and fascistic movements. To the extent that they run counter to the country’s legal and political tradition, they are un-English.

On 4 November 2016 a Tory who voted to leave the EU in the Referendum, Stephen Phillips, resigned as an MP, apparently on account of the Government’s anti-democratic policy. That policy is being fed and watered by hysteria, bigotry and prejudice in papers like the Daily Mail; the sentiments that paper encourages among its readers can be gauged by their on-line comments. BREXIT supporters who value the constitutional traditions of this country but who nonetheless chose to read the Daily Mail ought to reflect whether they are being well served by that paper.

In Henrik Ibsen’s ‘An Enemy of the People’ a man stands for his principles against the views of a mob because he considers it the right thing for him to do. Regardless of your views on the UK’s EU membership, whatever your political persuasion, it is time to confront the rancid coverage of this issue in the Daily Mail and like newspapers and hold them to account.

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