The Supreme Court has issued its judgment in the Miller case and the Government have introduced the European Union (Notification of Withdrawal) Bill. Those are statement of facts. The judgment and the consequences are much debated. The problem is that debate continues to be characterised more by heat than by light.
There is confusion as to what flows from the judgment. One only has to read an article in the Guardian’s ‘Comment is Free’ section by Geoffrey Robertson QC to see the problem. (Readers may wish to see how many factual errors they can identify.) But perhaps most seriously of all is the extent to which the referendum campaign is, in effect, being re-fought and how much the field of debate is populated by Mystic Megs.
I have a principled objection to referendums. However, successive governments have not had such an objection and the consequence is that referendums are now part of our constitutional practice. (The subject was well covered in the Constitution Committee’s 2010 report on referendums.) Parliament passed the European Union Referendum Act 2015 providing for a referendum on whether to leave or remain in the EU. The referendum was not legally binding, but the Conservative manifesto committed the party to implement the result, whatever the outcome. The result was, in rounded terms, 52% for leave and 48% for remain.
There was no threshold to be reached for the vote to take effect. As I have mentioned before, I raised the issue on Second Reading of the Bill, but there was no discernible appetite on the part of the two main parties to pursue the matter.
All that is, as far as I am aware, factually accurate. One may not like having referendums, but we had one. One may not like the result, but there was a result. One may disagree with the judgement of the Supreme Court – I thought Lord Reed’s dissenting opinion was brilliant, but it was a dissenting opinion. The Court has reached its judgment.
We now enter the muddy waters of the continuing debate. I know how people voted. I do not know why they voted as they did. I do not know why people who did not vote failed to go to the polls. It is remarkable how many commentators appear to know what people’s motivation was in voting for ‘leave’ (was it ‘soft Brexit’, was it ‘hard Brexit’?) and what is to be read into non-voting. People who fail to vote are supporting by default the winning side. They may not intend to, they may not like the result, but that is the effect. Saying what proportion of the electorate failed to vote for leave only invites the response that an even bigger majority failed to vote for remain.
All this takes place within a wider debate as to the consequences of withdrawal from the EU. There are two sides, reminiscent of Dad’s Army – ‘Don’t panic’ versus ‘We are doomed’ – again characterised by the presence of a good number of Mystic Megs.
It is not clear where the leadership will come in ensuring that we have an informed debate. Newspapers tend to contribute to heat rather than light. Referring to judges as ‘enemies of the people’ reflects ignorance on stilts and is more of a threat to the constitutional stability of the UK than the judgement of the court, though it is debatable whether the court itself has not raised the temperature unnecessarily by sitting as an eleven-member panel. The onus now rests on both Houses of Parliament, not only in dealing with the EU (Notification of Withdrawal) Bill but also the later Great Repeal Bill. Whether either House is up to the challenge remains to be seen.