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Four Myths Surrounding The High Court Judgement

07/11/2016 08:55
Evgeny Gromov via Getty Images

The Brexit plot thickens. What was originally sold to us as a black and white yes/no decision on whether we stay or leave, has slowly been revealed as the most complex political, social, economic, legal and - this week - constitutional decision of our lifetime. The government's attempts to use the Royal Prerogative to trigger Article 50 and therefore start the process of leaving the EU (i.e. going solo rather than getting Parliament as a whole to consent) has come under threat. Gina Miller and others have successfully challenged the government and the High Court has ruled that in order to commence the process of leaving, Parliament must be consulted.

Thankfully, the Brexiteer press understood the complexity of the situation and provided a thoughtful, fair, non-biased analysis of the judgement and where we go from here.

Just kidding.

Cue the mass hysteria, the hyperbolic, nonsensical, vitriolic nonsense from the press, closely followed by the likes of Farage, Iain Duncan Smith, and Katie Hopkins etc. who only seem to love Parliamentary sovereignty when it suits them. So, to combat this obfuscating craziness, here are four of the most prominent myths surrounding the High Court judgment picked apart.

1. "The judgement means that Brexit won't happen".

So, the Daily Mail and co. want you to believe that this judgement means that Brexit is now completely off the cards and that we will be in a permanent stalemate between the government trying to kick start our exit and Parliament blocking it.

The political circumstances, particularly given the way this referendum was sold to us as binding (despite it legally being merely advisory) mean that this would be highly unlikely. Many MPs who are remainers work for constituencies that overwhelmingly voted to leave, therefore they would be very hesitant to block triggering our exit purely on the basis that they wanted to remain in the EU. What is more likely is that it gives MPs more leverage to scrutinise the kind of deal we are working towards, in particular the economic effects our new relationship with Europe could have. This is not a re-run of the referendum. The question that was put to us on the 23rd of June was a very broad one and it is now for Parliament as a whole to fill in the detail to get the best deal for this country.

2. "The more we delay triggering Article 50, the worse it will be for the economy".

We all know markets hate uncertainty. So there is on the surface, a valid point here. Remaining in limbo makes the markets more volatile and halts investment and growth.

However, the pound (which has dropped by around 13% in relation to the dollar) did experience a small increase in value, indicating that the markets think having Parliament scrutinising the process of leaving and what kind of Brexit we have is a positive thing. We all know most businesses would prefer us to stay in the single market and the further we get from unfettered access the less attractive the UK economy looks. Those living in reality know that the likes of Nissan and HSBC aren't based here for the great weather; they enjoy the easy economic access to European markets.

There is after all a human cost to the effects of leaving the single market: people's food and energy bills could go up, whilst people's wages are worth less and a big drop in investment could mean many people loose jobs. If Parliament has a greater role to create a deal which retains businesses' confidence and keeps investment coming in and our currency healthy, that's a pretty good thing.

3. "The judges were clearly politically motivated in the decision they came to and are trying to undermine our democracy".

No. No, no, no, a million times no.

The judgement was made on a point of pure UK constitutional law. Not their opinions. Nigel Farage and the sensationalist press want you to believe this conspiracy that our judges are the establishment trying to screw you. Actually, they are upholding hundreds of years of legal precedent and ensuring the government doesn't screw you by not following the proper constitutional process for how we exit the European Union. They are upholding the cornerstone of our constitution: Parliamentary Sovereignty.

Legal precedent makes it clear that "it is for Parliament, not the executive to repeal legislation. The constitutional history of the country is...the powers of the crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body". It is also made clear that the mechanism that the government is trying to use to trigger Article 50 without Parliament only works "on an international plane" that will have no effect on domestic law. The European Communities Act was brought into domestic law by Parliament and must be repealed by Parliament too.

There is nothing in the judgement about the judges' personal, political opinions. There is a clear legal logic that can be followed as to how they came to their decision. The accusations of bias are completely unfounded. The Brexit press want to have Parliamentary sovereignty, but only when it suits their agenda.

4. "Democracy is about doing what the majority of people have said we should do".

Well, this is only part of the story. It's easy for some brexiteer politicians to make this a battle between "the establishment" and "the little people" and that the referendum provided all the answers for how we should proceed. But democracy is a complex beast. Representative democracy though our MPs is also very important, as well as having the independent judiciary upholding the rule of law and making sure our constitutional conventions are followed. The eventual deal we reach with the EU and what our post EU future looks like will be decided by a mixture of groups: The government, Parliament, the judiciary and civil servants using the referendum result as the framework for how to proceed.

We are a mature democracy that must follow proper legal and constitutional procedures to enact the will of the people. The judges upholding this process does not then merit the accusation that they are "the enemy of the people".

*****

So there we have it. Don't be swayed by the toxic mind-set of the elitist British press. The irony in all of this is that the Express, the Daily Mail and The Sun wanted you to believe they are the champions of Parliamentary sovereignty. They wanted British laws, in British courts implemented by British judges. And that's exactly what they've got.

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