That amiable denizen of Pinner, Danny Finkelstein, has written an article in the Times this morning which lays bare the bitter irony of the Supreme Court's handling of the Article 50 case. He writes, "Courts have to interpret the law, and the point of law the Supreme Court is interpreting is . . . whether the power of governments to agree treaties extends to their power over Article 50".
In a way Finkelstein's clumsy syntax makes the problem clear. The Court is not "interpreting . . . whether". It is deciding whether.
Let me explain.
No one knows what the legal position is regarding Article 50 and the Royal Prerogative. If anyone did, the case would never have come to Court. If, for example, triggering Art 50 without a vote was manifestly unlawful, the Government's advisers would have said, "Look chaps. Don't waste public money. You're going to lose". But actually both sides' advisers will have said, "You've a chance of winning because you've got an arguable case. But we really don't know because these circumstances have never arisen before."
So the law is not clear. The Court will clarify it. But consider what that process involves. It involves picking from various options. There may be only two (Options A and B, say), but it's much more realistic to say that there will be half a dozen.
In picking one option rather than all the others the Court is making a decision. It is deciding what the law is. Not interpreting.
So we have the bitter irony that a case brought to prevent the Government triggering Art 50 without democratic scrutiny by Parliament will be decided instead by the judicial activism of the Supreme Court.
Thus a Government elected by the people on a manifesto pledge to hold an In-Out referendum and to implement the outcome if Leave won, buttressed by the votes of nearly 18 million citizens, will be stymied and obstructed by eleven unelected judges.
What particularly grates about the prospect of a victory by Ms Miller and her City chums is that a case designed to prevent law-making by the executive - never mind its double mandate from the electorate - will have been decided instead by the law-making of a tiny group of people with no mandate at all. At any time. Ever.
Of course the fact that the judges are from the exact demographic which opposed Brexit so passionately and sneered at the mugs from the provinces who, you know, didn't think the EU worked so well for them, just makes it worse.
If the Court upholds the earlier decision - which I think it will, albeit for different and more carefully argued reasons, perhaps with a couple of dissenting voices - it will do so in terms which do their best to disguise its legal activism. It will say that this is what the law has always been, and that they have merely interpreted it afresh.
The pro-Remain press - of which Danny Finkelstein is a reasonable and articulate exemplar - will ignore the Court's activism (at best, or fail to notice it at worst), and dismiss the resulting surge of pro-Brexit anger as the inchoate howl of the ignorant and uneducated.
I've referred before on here to the historian Tom Holland's identification of this clash as one between democracy and the law. I think that's a fair characterisation on the whole. But a finding for Ms Miller will be to prefer one sort of decision making (the undemocratic one of the Court) to one backed up by an election-winning manifesto pledge and referendum result.
That is not a clash between democracy and the law. It is a clash between democracy and anti-democracy, in which democracy is the loser.
