David Cameron is the one who has caused this constitutional crisis, not the judiciary.
The decision handed down by the High Court today could not have been clearer. In four short sentences of the ruling summary the judges lay waste to the government’s position. “The court does not accept the argument put forward by the government. There is nothing in the 1972 Act [the 1972 European Communities Act] to support it,” they say.
The outcome was wholly predictable. The outrage at the ruling from the Mail, the Express, Douglas Carswell and others is due one of two possibilities. Either they are fundamentally ignorant of the constitution or, more likely, they are trying to provide a smokescreen to deflect away from the devastating blow that has been dealt to Theresa May’s always-untenable position on invoking Article 50 without the involvement of parliament.
In the immediate aftermath it has been plainly put that ‘Remainers’ will use the decision to derail the Brexit process. Insinuation like this makes one fundamental assumption which is entirely false: that a Brexit process exists at all.
When David Cameron’s government drafted and passed the legislation that brought about the 23rd June referendum he massively bottled it. He could have made the referendum binding, instead of advisory as was the case. It could have been an opportunity to put before parliament the various options for leaving, the possible material and constitutional impacts of a vote to leave. It would have been an opportunity to have a genuine, informed debate, with parliament playing its constitutional role of leading debate and providing for representation of the diverse constituencies of the country’s opinion.
Instead Cameron calculated that he would win the referendum, and that therefore the point was moot. We are all living with the legacy of Cameron’s self-serving, short-sighted political arrogance.
More importantly, in failing to meaningfully involve parliament Cameron set the clock ticking on today’s judgement. Though out of office because of his own cowardice, Cameron – along with May – has been served a basic political lesson by the judges. They are doing their job of interpreting the laws as set out by parliament, playing their own constitutional role. The point was so straightforward it is among the first A-Level poltics students learn. “The most fundamental rule of the UK’s constitution is that parliament is sovereign,” they wrote, as if it needed re-stating. This decision was written by Cameron, it has only been delivered by the judges. The tabloids are merely trying to shoot messengers.
One final word from the judges. “The court is not concerned with and does not express any views about the merits of leaving the European Union: that is a political question.” Anyone looking for someone to blame for the self-inflicted, needless and almost certainly paralysing constitutional crisis we’re in the midst of should look no further than those who do make decisions on political questions – and who in this desperate episode have been found so badly wanting.