Meddling Lawyers Rejoice as Tabloids Mourn Brexit Setback

  • Judgment is ‘law at its best,’ ex-attorney general says
  • Leave campaigners claim the public has been let down

U.K.’s Theresa May Faces New Hurdles on Brexit Talks

British lawyers celebrated Tuesday after a suit filed by a handful of small and mid-sized law firms defeated the British government and complicated Theresa May’s plan for a quick Brexit. But the country’s pro-leave tabloid newspapers branded the judges and attorneys as elites with contempt for voters.

"This was law at its best; a sober evaluation of the legal issues at hand, resulting in a considered judgment absent of political agenda," said former Attorney General Peter Goldsmith, now a London co-managing partner at Debevoise & Plimpton, who wasn’t involved in the case. "The strength of the judiciary in the U.K., and its ability to enforce the rule of law in an independent manner, is one of this nation’s most treasured jewels.”

For many lawyers, the case was about ancient British constitutional principles that bind kings, lawmakers and Prime Ministers to the same set of rules. The Brexit challengers, including a finance entrepreneur and a hairdresser, argued that May’s plan to trigger Britain’s European exit without holding a vote in Parliament was an undemocratic abuse of power. The British people voted in June to leave the bloc, and despite Tuesday’s setback at the Supreme Court, May still plans to start the two-year negotiations by the end of March.

Leave campaigners, and the popular tabloid press, saw the ruling differently. The Daily Mail newspaper maintained its long-held position that judges had no business defying a referendum, accusing the "elite" of showing "contempt for Brexit voters," in a headline on its website.

Broken System?

Arron Banks, a Leave campaigner, said the judgment "gives our out-of-touch establishment the ability to soften or delay the clean Brexit a majority of the British people voted for."

"The people have been let down," he said. "Parliament gave us a referendum and the people had their say yet the power has now been handed back to Westminster by our unelected establishment judges. This decision shows how broken the system is."

Supreme Court President David Neuberger, aware of the media interest in the judges’ comments in the buildup to the ruling, said Tuesday’s “proceedings have nothing to do with whether the U.K. should exit from the EU, or the terms or timetable for that exit.”

May will now have to pass legislation through both houses of Parliament to start the exit from the single market and the European Economic Area. As yet, it isn’t clear what sort of bill will be proposed or how much the process might delay her stated aim of triggering Article 50 by the end of March. The government has pledged, however, to respect the court’s decision.

Lord Chancellor Elizabeth Truss, the head of the Ministry of Justice, defended the judiciary, which has never before been called to rule on such a politically charged issue.

Independence

"Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms," she said. "The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality. While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed."

A bill to implement Article 50 will have to go through five stages in each of the two chambers of Parliament. Although it’s possible to pass emergency legislation in as little as one day, it is rare and the process can take months. There are votes at each stage, and lots of opportunities for dissenters to propose amendments. Both houses must agree on the wording of the final law.

Direction of Travel

Now "ministers need to talk about our direction of travel," lead claimant Gina Miller said in a Bloomberg TV interview Tuesday. "Losing access to the single market, leaving the EEA, leaving the customs union, without anything to replace it? That may take two or three decades, and cannot possibly be the best place for us to be as a country."

None of the law firms that initiated the cases, which included Mishcon de Reya, Edwin Coe, and Bindmans, are in the top ten by revenue in the U.K.

When May lost at the lower court last year, some U.K. newspapers cried foul, saying that judges had no place meddling in a democratic process. The Daily Mail featured pictures of the three judges on its front page and the headline, "ENEMIES OF THE PEOPLE.” The Daily Telegraph billed the ruling as the "Judges Versus the People."

Lawyers said that Tuesday’s judgment was based on the law, not any personal bias of the judges.

‘“The Supreme Court has issued a legal judgment and not a political or policy statement," Rob Aird, a partner at law firm Ashurst. "The power of the independent judiciary to ensure that our government acts in accordance with the law is one of the constitutional fundamentals of British democracy."

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