Thursday, 3 November 2016

Brexit: the High Court speaks for the British Constitution

Today, the British High Court decided that the government could not, on its own authority alone, launch the procedure that would take Britain out of the EU.

Lord Thomas of Cwmgiedd, the Lord Chief Justice
presided over the historic hearing
That’s the exercise known as “triggering article 50”, referring to the relevant article of the European Union’s Lisbon Treaty. It states:

Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.

Sounds straightforward. Britain voted for Brexit on 23 June and, despite the regrets of Remain supporters like me, all we have to do now is trigger the article 50 process and go. But, as always, the devil’s in the detail.

The first awkward bit of detail is a problem I’ve mentioned before: just how far out do we go? Do we leave the Single Market? Do we leave the Customs Union? All options have their merits and their disadvantages. They need to be weighed and judged. And the great question is – by whom?

‘By whom’ takes us straight to the second tortuous detail, which is the one that was addressed by the Court today. It’s all about those words “in accordance with its own constitutional requirements”. Just what are those requirements in a nation without a written constitution?

Many of us feel that much of British history has been about the conflict between an executive power originally represented by the monarch and a body that has increasingly come to represent the people, Parliament. All the progress there has been towards freedom, and there’s a lot further to go, has gone hand in hand with increasing the authority of the Legislative power over the Executive.

Now the peculiar characteristics of British power is that this long process has moved executive authority from the Monarch to Ministers who are themselves Members of Parliament. So that ancient tension has now been internalised within Parliament, opposing a powerful minority, the members of the Government, to the majority, all other MPs.

Those of us who would like to see British liberties protected and, ideally, extended are on the side of the Parliamentarians. Unfortunately, a great many people see far more efficiency in action being taken by the Executive untrammelled by such oversight. They particularly favour that approach if they see the government about to take action they like – so, for instance, a lot of Brexiters want Parliament to back off and let the Prime Minister, Theresa May, trigger the exit process herself, on her own authority, without referring the matter to Parliament at all.

In its judgement, the High Court’s view is that this isn’t the right way to go. Brexit is a key decision for the nation. The government should not be able to take it alone. It should, at the very least, obtain Parliament’s assent to it.

The irony is that if the government asks for that approval, it will almost certainly get it. A few MPs will stand up for the Remain cause and vote against triggering Article 50. Far more will see doing so as a defiance of the will of the people expressed in a referendum, which they consider wrong, or at least career-limiting.

David Lammy is a Labour MP who says he would vote against triggering Article 50. But, he claims, the real issue isn’t whether individual MPs vote for or against, it’s that they should have a vote at all. As he says, “it’s about whether you believe in a sovereign parliament.”

David Lammy:
anti-Brexit parliamentarian strong on principle
I do believe in parliamentary sovereignty, so I’m in favour of their getting that vote. That’s a curiously topical matter. Just yesterday, Lord Chilcot, who wrote the damning report on British involvement in the Iraq War, was questioned by MPs. His view was that the problem was caused by the dominating personality of Tony Blair, who drove his government into the war and refused all parliamentary scrutiny. It seems particularly appropriate that the next day a court has ruled that, on an equally crucial issue, parliament must have its say.

The government will appeal the decision, so that might still not happen. My hope is that the Supreme Court upholds the High Court, and Parliament gets to take the decision – even if it goes against me and in favour of Brexit.

So much for the matter of principle. .

At a more pragmatic level, and in the longer run, having Parliament take the decision does suggest that there’s a glimmer of hope for those of us who’d like to remain in the EU. MPs consulted about Brexit may also be consulted about the final Brexit terms. It will be quite a time before negotiations reveal what those terms will be, but when they’re known, Parliament should vote again.

That takes us back to the first point of awkward detail I mentioned earlier. What kind of Brexit is going to be on offer? Many people tell me that Brexit means Brexit and that means getting out of every single European institution. Well, I think if we get that far, the prospect may start to look so utterly appalling that more MPs might feel they can, in conscience, vote against it. So, in order to avoid a disastrous Brexit, they might refuse a Brexit at all.

That’s why, for both principle and pragmatism, I think the High Court’s judgement is the best piece of EU news we’ve had since that sad night of 23 June.

An excellent reason to salute it.


Anonymous said...

Hmmm. This in many ways whatever your individual view point is this is a total slap in the face for democracy and respect for the view of the majority of the British public. I bieve parliament agreed a referendum and thus is bound by the result.

Remain simply refuses to accept a result they don't like and to continue to send out confused and immensely negative messages that are totally unpatriotic. Why, do you all have some huge desire to see the UK have no identity, you have previously said you have no national pride and that you don't value your nationality and indeed you have dual nationality. Maybe you are not the correct person to express a view on what for many of us is about self determination and national pride. Is it so wrong that a nation should take pride in those values. Why can't the EU focus on trade and leave national identity alone and respect individual nations desire for national identity alone, then it might work for many more.

Anonymous said...

Yes just heard it summed up for exactly what it is, the judges undermining the view of the people. Strange I used to use the same law firm that won this judgments.

David Beeson said...

What surprises me is that, for all your love of Britain, you seem so much a stranger to our traditions...

We're a parliamentary democracy. Sovereignty resides in parliament (strictly, the monarch in parliament). That is the heart and core of our political being. There are fewer and fewer matters of importance, thank God, on which we allow the executive to take decisions without parliamentary scrutiny and approval. Chilcot was absolutely right that the problem over Iraq War was Blair's riding roughshod over parliament; government and parliament decided soon after that never again would Britain go to war without parliamentary sanction – rightly.

Brexit is as great a question. Why should we allow May to take the decisions alone? What's so special about Downing Street that means it overrides the Palace of Westminster? How is it democratic to leave such power in the hands of the executive?

This is a matter of principle. After all, it would make no difference. Parliament would undoubtedly vote for Article 50 if the question were put. The issue is that it must be put.

Firstly because that's the right thing to do.

Secondly because that's the British constitution.

If you love Britain as you say you do, you must know and accept that much about your nation.

Anonymous said...

As. See it we have already been there, parliament already voted for and agreed a referendum that has two clear options as an outcome. So what is the point in this meddling petty burocracy, as you say if parliament has any moral judgment it will vote it through anyway as the will of the people, a farce.

David Beeson said...

Did you hear Theresa May? The High Court decision, she maintains, won't throw her off track – she'll stick to her timetable, she'll proceed with Brexit.

So she'll do what she was going to do anyway. BUT she'll have to do it with parliamentary backing. In other words, democratically not autocratically.

How can you possibly object to that?

David Beeson said...

You should read these views from a Brexit supporter:

Anonymous said...

OK point taken, have a nice day.

Anonymous said...

Well as the day has progressed I have to say no I totally disagree with the challenge as that is what it is, an attempt to undermine the democratic choice of the British public. I think it is entirely correct that this should be challenged for what it is, an attempt to subvert the democratic view of the British public. Parliament ageered to a referendum and the nation decided, if certain members of parliament can't respect that maybe they should resign. Let's accept we have voted to leave, onc done we can all get together and go forwards with energy to agree a mutually positive and beneficial future. I will stop there!

ROBERT said...

Very odd this I do. Think that Favid is living in a little middle class liberal cacoone that is so distanced from the true values and beliefs of the British public that he and his like represents the true problem.

David Beeson said...

If the British public wants the Prime Minister taking decisions that affect us all without consulting our elected representatives then I'm certainly in disagreement with the public.