Using the law as a weapon against the people

The legal coups against Brexit continue. This week we learn that a pressure group called British Influence is mounting a new legal challenge to undermine the referendum result. Its lawyers will argue that the government will be acting unlawfully if it takes Britain out of the Single Market. The European Court of Justice has also intervened: one of its judges says the court will have ‘ultimate authority’ over whether and how Britain leaves the EU. Also, the government is apparently facing a resounding defeat in the Supreme Court in its appeal in the Gina Miller and Dos Santos litigation which was heard in the High Court earlier this year, meaning Article 50 will have to be invoked through an act of parliament.

The legal turn against the public is astonishing. There can now be little doubt that the law is being deployed as a weapon by a well-connected elite in order to frustrate the will of the people. The previous Brexit litigants recognised that Brexit could be stalled by forcing the process through a significantly pro-EU House of Lords; now the latest group of litigants thinks it can bind the government’s hands by suggesting Britons never voted to leave the Single Market.

These anti-democrats love to pretend that the referendum result was unclear. They point out that the issue of the Single Market was not even on the ballot paper. A representative of British Influence argued on BBC Radio 4’s Today programme that retaining Single Market membership would be a ‘smart Brexit’ — as opposed to the presumably ‘dumb Brexit’ the people voted for. This has also been the refrain of Remain MPs since the referendum. Labour’s Chuka Umunna and the Liberal Democrats’ Nick Clegg are just two of the high-profile MPs campaigning for a ‘softer’ or ‘smarter’ or watered-down Brexit. Former PMs Tony Blair and John Major have emerged from the political shadows to try to dilute the terms of Brexit. This mob of Remainers is egged on by journalists like Polly Toynbee, who said yesterday that MPs must be ‘brave’ in facing down ‘angry right-wing’ calls to fully withdraw from EU institutions. Their continuous pointing at all the things that ‘were not on the ballot paper’ reveals their belief that the British public is too thick to understand issues beyond the immediate question at hand.

The lawyers, commentators and MPs trying to scupper Brexit simply cannot handle the fact that Leave voters profoundly rejected the status quo. And they did so in full knowledge of what they were doing. They aren’t stupid; they knew they were ripping up years of entangling legislation and economic relations between Britain and the EU, because that is what they wanted to do. It is this rejection of the elite and the way politics and economics is currently conducted that really rattles leading Remainers, and they are seeking to overturn it, or weaken it, through claiming they are merely ‘clarifying’ what we voted for. It’s paternalistic as well as anti-democratic.

The delay caused by the various legal coups against Brexit risks sabotaging Britain’s negotiating position in relation to Brussels. The uncertainty generated by these cases, and the government’s constant dithering over getting Brexit moving, is arguably causing more harm to the British economy than anything that might follow if we were to leave the Single Market. Now is surely the time for decisive leadership and confidence in Britain’s economic prospects post-Brexit, not constant legal handwringing and harmful uncertainty.

But beyond the British government, the rest of us who care for democracy must stand up to these outrageous legal coups against Brexit. Yes, of course, these claimants have the right to use the courts; all citizens have a right to raise questions of law before the judiciary. But let us no longer pretend that there isn’t a political dimension, and a deeply undemocratic one, to these cases. To deploy the courts as a political weapon against the majority’s will is wrong and contrary to the public interest. The referendum vote was a demand for greater popular control of political affairs. Passing control of Brexit over to unelected judges is an attack on that popular demand, and on democracy itself.

Luke Gittos is law editor at spiked and author of Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans. (Buy this book from Amazon(UK).)