‘Enemies of the people” was how the Daily Mail referred to the three judges who held that British constitutional law required that Parliament should vote before the Government can take Britain out of the European Union.
The phrase has a history. It was used in the time of Roman emperors such as Nero. More famously, it was used by the French revolutionaries, who conducted mass executions by guillotine during the period known as the Reign of Terror. It was also used in Stalin’s USSR. Those declared to be enemies of the people were sent for execution or exile without any procedure which we would recognise as a fair trial. The Daily Mail was obviously not proposing that the three judges be sent to the guillotine or the gulag. So what did the joke mean?
The explanation in the headline was that the judges had ‘‘declared war on democracy’’ by defying 17.4m Brexit voters, and … could trigger a constitutional crisis”. Democracy was not what was practised under the Roman Empire, the Reign of Terror or Stalin. They all had judges who could decide disputes between individuals. But unlike what we understand by democracy, those infamous regimes did not have judges who could decide disputes between the citizen and the state. There could be no dispute between the individual or minorities and the state. The state had unlimited power, and might was right.
Democracy without judges is quickly followed by the likes of the Queen of Hearts in Alice in Wonderland: “The Queen had only one way of settling all difficulties, great or small. ‘Off with his head!’ she said, without even looking round.’ ” The head in question was the Cheshire Cat’s – the cat who was so impertinent as to look at the King.
For the Daily Mail, it is the people, or rather “the 17.4m Brexit voters”, who are the king today, and the judges who are the Cheshire Cat. They have been so impertinent as to do their job of interpreting the constitution. Alice’s Wonderland did not have a constitution, just a tyrannical queen. Democracy is not simply the will of the majority. The British people are not to give up the constitution they have developed over the 800 years since Magna Carta. They have not rejected EU law only to import the laws – or lawlessness – of the French Revolution.
Does the joke matter? In one sense, it does not matter at all. It will certainly not make any difference to how the Supreme Court decides the appeal this week, whichever way it decides it. Judges look at the law, and judging is not a job for the thin-skinned.
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