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The Guardian view on the supreme court: a cheer for the judges The Guardian view on the supreme court: a cheer for the judges
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In the long and often confrontational arc of British history, the judges have not always been the friends of the people. But they certainly were today. The supreme court spoke for Britain when it rejected Theresa May’s appeal about the procedure to be followed in triggering Britain’s departure from the European Union. You might not know it from some of the ranting responses from Brexit supporters, but the court made no judgment about Britain leaving the EU. However, it did decide, by eight to three, to uphold the rule of law, not the rule of ministers. That was the right decision legally, constitutionally and morally. In British history, civil wars have been fought over less than this. In the long and often confrontational arc of British history, the judges have not always been the friends of the people. But they certainly were today. The supreme court spoke for Britain when it rejected Theresa May’s appeal about the procedure to be followed in triggering Britain’s departure from the European Union. You might not know it from some of the ranting responses from Brexit supporters, but the court made no judgment about Britain leaving the EU. However, it did decide, by eight to three, to uphold the rule of law, not the rule of ministers. That was the right decision legally, constitutionally and morally. In British history, civil wars have been fought over less than this.
By dismissing the government’s appeal and upholding parliamentary sovereignty in the EU departure process, the court did several important things. It ensured, first and foremost, that Mrs May’s government cannot take Britain out of the EU on prerogative powers or without parliament’s authority. That is a major constitutional principle and the court was right to uphold it; it remains extraordinarily troubling that some otherwise sensible people can be so cavalier about such a subject. The court also stood up for its own independence in the face of some shameful attacks by the Brexit press and Brexit campaigners, attacks that ministers were disgracefully slow to oppose, though they did a bit better today. Finally, by putting the issues back into the hands of parliament, where they clearly always belonged, the court has kept open the question of ratification of Britain’s post-referendum relationship with the EU. By dismissing the government’s appeal and upholding parliamentary sovereignty in the EU departure process, the court did several important things. It ensured, first and foremost, that Mrs May’s government cannot take Britain out of the EU on prerogative powers or without parliament’s authority. That is a major constitutional principle and the court was right to uphold it; it remains extraordinarily troubling that some otherwise sensible people can be so cavalier about such a subject. The court also stood up for its own independence in the face of some shameful attacks by the Brexit press and Brexit campaigners, attacks that ministers were disgracefully slow to oppose, though they did a bit better today. Finally, by putting the issues back into the hands of parliament, where they clearly always belonged, the court has kept open the question of ratification of Britain’s post-referendum relationship with the EU.
It would be a major surprise if, following the leave vote last June, government lawyers had not privately offered the prime minister legal advice along broadly the lines that the supreme court upheld today. If so, Mrs May foolishly ignored the advice because she clearly wanted to keep her post-referendum strategy as secret as possible – and still does. This was the wrong way to respond to the challenges posed by the referendum result – and the Commons, which was cowed, did not challenge her with enough determination.It would be a major surprise if, following the leave vote last June, government lawyers had not privately offered the prime minister legal advice along broadly the lines that the supreme court upheld today. If so, Mrs May foolishly ignored the advice because she clearly wanted to keep her post-referendum strategy as secret as possible – and still does. This was the wrong way to respond to the challenges posed by the referendum result – and the Commons, which was cowed, did not challenge her with enough determination.
Gina Miller and the other plaintiffs in the court action were left to do what MPs should have done. She and her co-plaintiffs are the heroes, not the villains, in this story. The country is in Ms Miller’s debt. It was also wrong for Mrs May to appeal against the high court’s original impeccable ruling in November. Predictably her appeal has proved a waste of time and money. MPs need to learn the lesson that parliament should be much more courageous in holding her to account.Gina Miller and the other plaintiffs in the court action were left to do what MPs should have done. She and her co-plaintiffs are the heroes, not the villains, in this story. The country is in Ms Miller’s debt. It was also wrong for Mrs May to appeal against the high court’s original impeccable ruling in November. Predictably her appeal has proved a waste of time and money. MPs need to learn the lesson that parliament should be much more courageous in holding her to account.
The referendum result last June was clear. But it cannot be the last word or the only word on this complex, changing and hugely important subject for the next two years. Respecting the result does not mean that no other views can ever again be regarded as valid. It cannot mean that no Brexit-related issue whatever – including the single market, the customs union and free movement – can be debated freely during the process. That is why parliament must take reasonable time to debate and if necessary amend the bill that the government will publish on Thursday. If that means that article 50 is eventually triggered in April or May rather than by the end of March, as intended by Mrs May, she can hardly object, since she wasted the country’s time with her appeal.The referendum result last June was clear. But it cannot be the last word or the only word on this complex, changing and hugely important subject for the next two years. Respecting the result does not mean that no other views can ever again be regarded as valid. It cannot mean that no Brexit-related issue whatever – including the single market, the customs union and free movement – can be debated freely during the process. That is why parliament must take reasonable time to debate and if necessary amend the bill that the government will publish on Thursday. If that means that article 50 is eventually triggered in April or May rather than by the end of March, as intended by Mrs May, she can hardly object, since she wasted the country’s time with her appeal.
This need for scrutiny also explains why parliament should ensure that the article 50 process is transparent enough at key stages to enable MPs to continue to influence it meaningfully. That means the government should quickly publish a white paper on Brexit goals to provide a benchmark for the process. As well as setting out UK goals as Mrs May did last week, this white paper should clarify whether and how she is prepared to accommodate the reasonable interests of the three devolved nations, since the supreme court has put that issue back firmly on her plate. Above all, parliament should ensure the bill specifies the points at which votes on the main proposals can be held so as to shape the final deal in a meaningful way.This need for scrutiny also explains why parliament should ensure that the article 50 process is transparent enough at key stages to enable MPs to continue to influence it meaningfully. That means the government should quickly publish a white paper on Brexit goals to provide a benchmark for the process. As well as setting out UK goals as Mrs May did last week, this white paper should clarify whether and how she is prepared to accommodate the reasonable interests of the three devolved nations, since the supreme court has put that issue back firmly on her plate. Above all, parliament should ensure the bill specifies the points at which votes on the main proposals can be held so as to shape the final deal in a meaningful way.
It is understandable that both the Labour and Conservative parties are hesitant. Both are divided. So are their voters. Both are unhealthily afraid of the bullying anti-EU press. Both wish to respect the democratic will. But, as the court properly ruled again today, it is parliament that is sovereign, not the referendum, let alone the Daily Mail. Parliament must therefore rise to the responsibility that the judges have placed upon it. Its duty is to lead, not follow.It is understandable that both the Labour and Conservative parties are hesitant. Both are divided. So are their voters. Both are unhealthily afraid of the bullying anti-EU press. Both wish to respect the democratic will. But, as the court properly ruled again today, it is parliament that is sovereign, not the referendum, let alone the Daily Mail. Parliament must therefore rise to the responsibility that the judges have placed upon it. Its duty is to lead, not follow.