The most surprising thing about the Brexit High Court judgment was not the decision itself, which most constitutional lawyers predicted, but the extent to which the right-wing press and politicians would seek to use it to attack judges and the British constitution.
What is most worrying is not the personal attacks and dangerous rhetoric toward judges, but the level of ignorance as to the law displayed by mainstream media. As the High Court made clear in its judgment, the court was not concerned with the merits of Brexit, or the politics as to how and when we leave the European Union, but were instead tasked with the legal question as to when the Government may exercise the Crown's prerogative powers. The court found, in line with a simple, centuries old, proud British constitutional principle, it is Parliament who makes the law.
Nevertheless, right-wing politicians took turns to each be more outraged than the next. UKIP leadership contender, Suzanne Evans with a cavalier disregard for judicial independence, called for three of our most senior judges to be sacked for daring to find against the Government, describing it as a "power grab". Tory MP David Davies ranted about "unelected judges calling the shots", both ignored the fact this very judgment confirmed it is an elected Parliament, not judges, that call the shots.
Iain Duncan Smith, perhaps not bothering to read the judgment, bizarrely described the decision to uphold Parliamentary sovereignty as "unprecedented". He suggested as did UKIP MP, Douglas Carswell, that the court should somehow have declined to become involved or otherwise gone along with whatever the Prime Minister wanted. Both ignored the fact the Government rightly agreed the dispute was justiciable.
When emotions run high, journalists have a duty to keep calm and educate its readers. Sadly The Telegraph chose not to engage in legal analysis but declare: "The Judges Versus the People". The Daily Mail likewise picked up its pitchfork declaring 3 senior judges as "Enemies of the People", naming and shaming those who dare uphold our constitution as if somehow the role of a judge is to give whatever legal interpretation is most popular among its readership that day. The Mail struggling for personal attacks on decent public servants, described one judge as "an openly gay ex-Olympic fencer." The relevance of his sexuality is yet unknown. At the time of writing, our Lord Chancellor Liz Truss is yet to come out in defence of the judges, despite her constitutional duty to do so.
Finally, The Sun, forgetting its ownership, characteristically found a way to blame foreigners for meddling in British politics. Apparently it is outrageous that someone foreign born, such as the claimant Gina Miller, would dare support Parliamentary sovereignty. She has subsequently been bombarded with threats of death and rape.
The media has an important duty to present the news in a rational considered manner. A referendum is by its very nature divisive, emotions run high and in the case of Brexit, many minorities are left feeling vulnerable. However, it is increasingly clear that post-Brexit the mainstream media has failed to rise to the challenge of these dramatic times. Increasingly less sensitive to allegations of racism or general bigotry, newspaper editors feel emboldened to boost circulation with ever more dramatic and misleading headlines. Vote Leave means nothing more than leaving the EU, yet it is increasingly presented as a stick by the press to beat someone who might not share their narrow-minded rhetoric. Parliamentary sovereignty is the latest victim of a press that considers sales come before responsibility. Who wants to read lawyers debating constitutional law? Far better for circulation to proclaim conspiracy, blame foreigners, and attack anyone who thinks differently as a traitor, than engage in any meaningful debate about our constitution and what Britain should be.
For those who have read the judgment, it is difficult to do anything but admire the careful consideration of Parliamentary sovereignty. The judgment takes us on a whirlwind tour of constitutional principles, citing great British jurists such as Coke and Dicey. Critics suggesting the judges were out of touch with the will of the people clearly neglected the court's reference to Dicey's masterful analysis of Parliamentary sovereignty, from 1915: "The judges know nothing of any will of the people except insofar as that will is expressed by an Act of Parliament." There is nothing undemocratic about ensuring law is made by Parliament. The court simply, and correctly, ruled that law is made by Parliament and not by kings, tyrants or Prime Ministers, even when they invoke "popular will". Parliament, mindful of the referendum result, will rightly decide the next step. Not judges, not the media.
As I tweeted yesterday, "politicians attacking judges whenever they don't go along with the Government is precisely why the judiciary should remain independent." The envied longevity of our peace, democracy and liberty is a result of British constitutional principles: independent courts, the rule of law, and Parliamentary sovereignty. It is irresponsible for politicians and press to show no respect for Britain's constitution, to seek to by-pass Parliament, and attack the judiciary into ignoring the principles that have protected us for centuries. It is not only irresponsible, it is unpatriotic.Suggest a correction