In the aftermath of the Brexit vote all political leaders began talking about Article 50 of the Lisbon Treaty but it was unclear how this provision would be triggered. After becoming Prime Minister Theresa May said that she did not require the consent of Parliament, however the British High Court in London disagreed. The Court essentially ruled that an act of Parliament must be passed which means that the House of Commons, containing a majority of pro-EU members, will have a say. This is being spun by the Right, especially the right-wing press, as judges blocking the will of the British people, but this fundamentally misunderstands the political system that these sections of society claim to lionise.
Something that was rarely mentioned was that the referendum was not binding, and it never was. As a political junkie I always knew this fact but maintained that the referendum was important. This is because I believe democracy should be an educational procedure but also because the leaders of both campaigns maintained that the result was binding. Ascertaining the number of times that David Cameron and Nigel Farage said that this was a ‘once in a generation vote’ would require days of combing through archive footage, but I think we can all remember campaigners parroting this idea. Unfortunately the campaigners for both sides neglected to mention this to the electorate, and so the actions of the High Court now resonate with those who voted Leave.
Politics is about what is true, but it is also about what is perceived to be true, and these perceptions can be very powerful. The British people perceived the referendum vote to be binding, but now that reality has hit people the result will be obvious: anger. Nobody wants to feel misled or manipulated but when people’s understanding of reality is undermined by the truth, unsurprisingly those who were most passionately for leaving the EU feel resentment, and construct a narrative to justify what is going on. Rather than confront the fact that they were misled, newspapers like The Daily Mail and The Daily Express are ‘crying foul’ on an ‘establishment stitch-up’. This narrative is compelling to many people, particularly those who feel like the world has left them behind, but there are a few political problems wrong with this narrative.
The first point that the right-wing press have been quick to emphasize is that the judges of the High Court are not elected, whereas the referendum was a massive exercise in democracy. These media sources frame this as a trump card, but this is not the case. If judges were elected, there would inevitably be campaigns by prospective judges in order to canvas for votes. It doesn’t take a genius to work out that a consequence of vote canvassing will be the politicisation of an institution that should be apolitical.
Further, as many political philosophers have pointed out, having a government that is purely democratic risks chaos. For instance, if the government of a racist society had a referendum on killing an ethnic minority, the vote in favour of such a measure would be overwhelming but we would all agree (hopefully) that such a measure would be completely unjust. According to the logic of these right-wing papers, such a measure would be just because the majority of people demanded it. Indeed even philosophers of anarchism and communism agree that in stateless societies of free association, the members of communities would consent to a code of ethics that would prevent people from unjustly ganging up on others. A majority vote is not inherently just, the outcome of such a vote must also be considered.
The second point has already been made on social media but it’s worth fleshing out in more detail. The British political system has a number of premises, but two of them are an unwritten constitution and the sovereignty of parliament. These two are heavily interlinked and it contrasts with presidential systems like the United States which has three co-equal branches of government. The UK has an unwritten constitution, and this means that parliament is ultimately sovereign; in order for something to become the law an act of Parliament must be passed. Again, this is contrasted with the US in which a legal decision can have the effect of nullifying laws across the country. For example, Congress didn’t have to pass a bill legalising same-sex marriage in all fifty states because the Supreme Court had ruled that laws preventing same-sex couples getting married were unconstitutional.
This is relevant because it appears that those supporting Brexit have no idea that what I just said was the case. When Theresa May said she didn’t need the consent of Parliament to trigger Article 50, she mistakenly thought that she was in a Presidential system, and evidently the right-wing press have no understanding of how the British political system works either. The Prime Minister is just another MP and as such cannot dictate policy on a whim. Significant policy changes require the consent of parliament, irrespective of the topic.
Having said this, what should the response of MPs be? If MPs understood their role as representatives they would not seek to derail the result of the referendum, even if technically speaking it wasn’t binding. Representative democracies are set up so that an elected group of people can spend their days looking at political issues in depth because most people cannot do a 9-5 work day, raise a family, and become knowledgeable about the British diplomatic policy. Theoretically it’s possible, but it would be unreasonable to require this to be the case. However I would argue that in the wake of a referendum it is untenable to argue that people voted in total ignorance.
One could argue that may people voted on false information but this implies that MPs are somehow always looking objectively at issues and acting like Kantian beings pure rationality. MPs should respect the result of the referendum because the British people would feel betrayed by anything else, and if you are a politician your primary concern is maintaining your power. I don’t think ignoring the will of the voters is a good way of doing that.
The High Court vote was unsurprising as they are all knowledgeable of British constitutional law, but the real reason for May’s insistence on not discussing Brexit in the House of Commons as she would have to come clean. She would have to say what she would do after triggering Article 50, because if she didn’t MPs, including a number of Tory MPs, could block it. Mrs May is notorious for being nicknamed ‘the submarine’ for disappearing when political problems arise, but a High Court ruling mandating an act of Parliament prevents her doing that.
I think that everyone in the country should support this ruling because it will bring clarity to a situation that has up until this point has been used as a political football. The right-wing press will speak of how unfair this is but that is irrelevant because these sections of the media are not exactly paragons of political understanding; they are reactionary and often racist bits of glorified toilet paper that should be ignored at every turn. If you think that democracy is being subverted because MPs are going to vote on something, your knowledge of politics and the British constitution needs some work.