Quite the most nauseating thing about the Remainers’ anti-Brexit campaign so far – worse than the lies, worse than the bullying, worse even than their outrageous refusal to accept the referendum result – is the sanctimonious way they’re now draping themselves in the flag of patriotism, sovereignty, and due process.
For decades these EU fellow travellers have acquiesced in the erosion of British democracy to the point where the government in Westminster has become little more than a rubber-stamping operation for directives issued by unelected commissars at the European Commission, while English common law has been superseded by edicts invented by tinpot activist judges of dubious provenance at the European Court of Justice.
But now that Britain’s “independent judiciary” has done the right thing by ruling against the democratic will of the British people and for the interests of the entrenched Europhile elite, suddenly the Remainers are all in favour. Some have even gone so far as to demand the Prime Minister rebuke newspapers which have criticised the High Court judges’ decision, with one left-wing bishop comparing the media response to the sort of thing that went on in Nazi Germany. (Er, no, Bishop. What you seem to be criticising here is the very thing they didn’t have in Nazi Germany: a robust, free press).
Anyone expecting that the Supreme Court will override the High Court’s decision really needs to have a look at the kind of people who’ve infiltrated the higher levels of the judiciary these days. Lord Denning they most definitely ain’t.
Take Lord Carnwath. On joining Britain’s Supreme Court in 2012, he swore an oath to “do right by all manner of people” without “favour, affection or ill will”. But how does this square with the comments he made while addressing a climate conference he helped organise last year?
President Obama has said that we are the first generation to feel the impact of climate change and the last generation that can do something about it. On that basis, the forthcoming Paris negotiations, under the UN climate change convention, are a crucial test of our ability as a global community to address those challenges.
As Donna Laframboise notes, this is not a neutral party sifting evidence but an activist judge playing politics.
These are overtly political remarks. Mentioning December’s UN Paris climate summit twice in less than a minute. Characterizing such negotiations as a crucial test for the global community. Parroting clichéd nonsense from the US president. (Eco-activists have been telling us we’re the last generation “with a chance to do anything” since at least 1970.)
Furthermore, for a judge supposedly charged with defending British interests, Lord Carnwarth seems unhealthily keen on supranational legislation created over the heads of sovereign democracies by international bodies such as the UN (or, one might well surmise, the European Union).
Since 2002, as Laframboise has reported, Lord Carnwath has been a close associate of the United Nations Environment Programme (UNEP). In this Guardian article, he calls for greater judicial activism by UNEP.
Laframboise comments:
Ladies and gentleman, the UN is doing with judges and lawyers what it has long done with scientists. Wooing them with titles and travel. Coaxing them into the fold. Lobbying and co-opting them.
And it’s all happening right out in the open. A sitting member of the UK Supreme Court is participating in overtly political UN activities. Rather than hiding this fact, Lord Carnwath has advertised the details in a major newspaper – and on the Supreme Court’s website.
Does Lord Carnwath really sound like the sort of person capable of putting his prejudices aside and ruling dispassionately on a matter as emotionally and politically charged as Brexit?
Does anyone in the senior judiciary?
We got a pretty good idea of where many of their sympathies lie earlier this year when, shortly after the EU referendum, the then Lord Chancellor Michael Gove addressed a “Dinner with the Queen’s Judges” at a white tie banquet at Mansion House in the City of London, as reported by Andrew Pierce.
Gove, a prominent Brexiteer, made a speech which was greeted in sullen and stony silence – and sometimes with “audible jeers” by the audience. By contrast, an earlier speech by the Europhile Lord Mayor of London attacking the referendum result was greeted with “whoops, cheers and clapping”. Among the judges present were the trio who made the High Court decision on Article 50.
This is an issue on which most of my legal friends have been getting more than usually uppity, self-righteous and sanctimonious. Probably the underlying reason for this is that, being mostly smug, very comfortable members of the Europhile establishment, they are totally rooting for any measure that may help delay or frustrate the Brexit vote. But it’s also, of course, because if there’s one thing lawyers fetishise even more than hefty retainers it’s what they think of as the majesty and rigour and supremacy of the law.
The law, they firmly believe, is what protects us from the arbitrary authority of despots – the thing, nay, that has kept Britain great and tolerant and free when so many other nations have descended at one time or another into tyranny and chaos.
They are right to cherish English common law and the way it evolves slowly through precedent: it is indeed – or at least was – one of Britain’s greatest glories.
But because they are so blinded by their faith in the law and by their fervent belief in themselves as its fundamentally decent servants, they overlook at least two very important details.
The first is that, contrary to the impression they might sometimes give, lawyers are human too. They are every bit as vulnerable to the frailties of flesh as any other profession – and that includes being prey to emotion, prejudice and ‘noble cause corruption’, even if these are mostly unconscious.
In order to share the Remainers’ faith in the High Court judges’ verdict, we would have to believe that the trio of judges involved were so pure of heart and mind that nothing swayed their decision save the iron demands of constitutional law.
But we know this wasn’t the case. As Dominic Lawson explains here, it was a moot case that could have gone either way:
First, it’s necessary to understand the reason the High Court gave for blocking Mrs May’s wish to invoke Article 50 with ‘the royal prerogative’ — executive action under authority vested in the Crown, as opposed to a vote by MPs.
The judges argued that when Parliament voted in 1972 to join what was then the European Communities, it gave the British people certain ‘rights’ and that such ‘rights’ could not be removed from us without Parliament agreeing to reverse its original (44-year-old) decision.
The judges also ruled that the invocation of Article 50 would lead ‘inevitably’ to that loss of ‘rights’, since it set in train an irrevocable process towards EU exit.
In fact, this last point is highly contentious. Remarkably, the day that the High Court made its judgment, Lord Kerr, the man who actually devised Article 50, told the BBC that invoking it would not make Britain’s exit from the EU ‘irrevocable’. He said: ‘You can change your mind while the process is going on.’
That view was endorsed by Jean-Claude Piris, the former chief of the EU’s legal service.
Not only does this show that matters are much less clear than the High Court suggests, but there is, instead, an obvious moment at which our so-called ‘loss of EU rights’ would be irrevocable. That is when Mrs May brings before MPs her already announced EU ‘Great Repeal Act’. And, of course, Parliament will have a decisive vote on that: the clue is in the name.
The second, even more, important detail that the law fetishists and their amen corner in the Remain camp are overlooking is the fundamental principle of justice.
This oversight is not surprising since lawyers have a concept of “justice” which differs markedly from the one understood by most of the rest of the population. To a lawyer, justice means no more than the effective workings of due process: whether the criminal dunit or not they really don’t care just so long as he’s had a fair trial. To the rest of us, though, justice is something much bigger and more all-embracing than that: it means a cosmic fairness, derived from our perhaps touchingly innocent belief that there is, somewhere out there an absolute, objective truth.
In order to discover this truth, we rely on first principles. So, in this case, to decide the rights and wrongs of the High Court judges’ decision and the (almost inevitably similar) Supreme Court one, we need only ask ourselves: in whose interests are these judges supposed to be acting?
The answer is the British people.
What did the British people do on June 23rd? Why they voted overwhelmingly to Leave the European Union. More people voted Leave – 17.4 million – than have ever voted for anything in British history.
As Dominic Lawson has noted elsewhere, this referendum was, in turn, the result of a parliamentary bill in 2015 in which MPs voted by a majority of six to one that “the decision on our membership [of the EU] should be taken by the British people, not by parliamentarians in this chamber”.
So parliament quite explicitly handed over the decision-making authority on this specific issue to the British people.
Now the British people have gone and made the decision and suddenly the judiciary are saying to them: “Er actually, no. What 17.4 million of you told us you wanted is neither here nor there, because three of us here judges in our judges wigs have decided on your behalf that you don’t really know your own minds, and that the only people who can speak for what you do want are the MPs in parliament, most of whom think the exact opposite on the EU to what you do, but hey, that’s how the system works, that’s our glorious constitution that is, as interpreted by us, and it’s designed to look after your interests, plebs, so shut up and be grateful….”
You can see why Peter Hitchens thinks this has the makings of a major Constitutional crisis.
And why Nigel Farage is planning to lead a march on the Supreme Court.
The law is an expression of the consent of British people. When it acts so flagrantly in defiance of their wishes, then how can it hope to retain their respect? And isn’t about time these bloody lawyers realised that their job, like those of our bloody MPs, is to act as our servants not as our masters?
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