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.

Bush, Blair, Boris and Brexit. And my poodle Luci

It’s frightening when a pet falls ill.

It can be messy too, of course. I’ll spare you the details but you can probably imagine what the clearing up was like when I tell you that our toy poodle, Luci, had some acute digestive problems. In any case, the cleaning was the least of our concerns as she began to tremble uncontrollably while drooling from the mouth. Usually lively and playful, she collapsed and lay wherever she’d slumped, apathetic, shaking and miserable.

We had to make an emergency dash to the vet’s. Far from giving us any words of comfort, he looked as worried as we were. We had to start grappling with the notion that we might be about to lose her. Fortunately, however, his professional skill and her natural powers of recovery eventually won through, and after a night of anxiety, we found her in the morning already well on the way back to her normal self.

What had put her in that state? 

Despite her tiny size, she has quite an appetite. One that is entirely undiscriminating. If she comes across anything that seems eatable, she gives way to temptation and eats it without hesitation. We have to be quick to stop her and, if we’re not quick enough, that’s it, it’s gone, swallowed and into her belly. Where it may, as was the case this time, wreak havoc.

Plenty of charm, but not so strong on the self-control

Complete surrender to immediate gratification. Not a thought to the possible future consequences. Not the smallest trace of self-control.

The capacity to exercise such self-control is what separates us from the animals. We can defer gratification. It means we can walk past what seems appealing but might in reality be harmful.

Conversely, we often lose that capacity, and find ourselves behaving like Luci: acting first, thinking afterwards. So I suppose, just as the self-control separates us from the animals, its failure shows us how closely we linked we still are to them.

What does it take? Well, if you happen to have a particularly challenged US President – yes, you identified him correctly, I mean Dubya – who’s made up his mind that he needs to pick a fight in Iraq, and you’re a British Prime Minister particularly star-struck by wealth or power – yes, full marks, I mean Blair – you might be inclined to go blundering into battle with him. Without a thought to the consequences.

That’s what the Chilcot Report into the Iraq War showed. There’d been no planning. Nobody had thought about what would happen after the initial military phase, what problems we might face or what resources we might need to deal with them.

Chilcot was clear. A perfectly predictable consequence was an upsurge in fundamentalist terrorism, affecting the whole region and many countries beyond. Just like Luci, Dubya and Blair swallowed the tempting morsel of a quick and easy war, and discovered that it turned out to be a long and bitter struggle. After which, they left it to the rest of us to clear up the mess.

What happens with individuals can happen with whole countries too. Britain – or more specifically, England and Wales – decided on 23 June that the UK should leave the EU. Since then it’s turned out that no one had planned for what might happen next. There may be a terrible shock coming for Brexit supporters: the government seems highly tempted to leave the EU but stick with the European single market, which would mean Britain continuing to pay contributions to the EU, having to accept freedom of movement with EU countries, and having to accept EU rules while having given up any say in making them.

Like Luci, the consequences of the decision may turn out to be a lot less enjoyable than the initial act may have appeared.

Luci, of course, recovered quickly and fully. I’m sure a lot of people in Britain are hoping that recovery from Brexit will be just as easy. Sadly, when it comes to the other spectacularly ill-planned decision, war in Iraq, we’re still struggling with the consequences today. With no end in sight.

Still, whether Brexit turns out as easy as Luci’s illness, or as painful and drawn out as the Iraq conflict, one conclusion we can be sure of: it would make life a lot easier if we could learn to plan a little better.

And, perhaps, to exercise a tad more self-control.

Comets 67P and other strange celestial bodies nearer to home

Hasn’t the European Space Agency done fantastic work, with the Rosetta mission?

It’s been fascinating watching a weird celestial object approaching the climax of its orbit, spewing out increasing amounts of hot gas and jets of odd material. Though, to be fair, as I write those words, I’m not thinking of comet 67P on its arrival at perihelion, its closest approach to the sun. No, I’m thinking of that even stranger celestial body, Tony Blair One (TB1), now nearing peri-Jerry, the point of closest approach to the election of Jeremy Corbyn as leader of the Labour Party.

Comet 67P. Or Tony Blair at his most virulent?

Certainly, all the phenomena we’ve grown used to with 67P are to be found in TB1. The jets of hot gas are growing more violent and numerous as peri-Jerry approaches. “If Jeremy Corbyn becomes leader it won’t be a defeat like 1983 or 2015 at the next election. It will mean rout, possibly annihilation.” “It doesn’t matter whether you’re on the left, right or centre of the party, whether you used to support me or hate me. But please understand the danger we are in.” Fierce stuff, full of frighteningly alien material and fiery gas, threatening dire destruction to anyone who gets close.

This all comes after the TB1 comet has spent some time at the far end of its orbit, lost in darkness in the cold outer regions of the political solar system, where no one paid any attention to it. No wonder that as it becomes hotter and more bothered, great billows are emerging from it.

TB1 has some key points of difference from 67P. It, for instance, has smaller objects orbiting it. For instance, there’s Number 2 Alastair Cambell, Foul Mouth Two (FM2) (“five reasons you should vote for anyone but Jeremy Corbyn”).

The irony is that both TB1 and FM2 may have a point. The election of Jeremy Corbyn may indeed make the return of a Labour government anytime soon an even tougher proposition than it was already. What they don’t seem to realise, though, is that they have grown so thoroughly discredited, that their denunciations of the man only drive more votes to the Corbyn camp. Their interventions only make more likely the very fate they are so keen to avoid.

Still, they’re good value. TB1 will be worth observing even after the European Space Agency has gone home and we’ve seen all the photos there are to be of 67P. After all, there is another conjunction in the offing for TB1. Long delayed, already six years in the making, the Chilcot enquiry into the launch and conduct of the Iraq War must report relatively soon.

Blair’s nemesis Corbyn has already said that he suspects there may be a war crime case against him. If Chilcot confirms that view or anything like it, there will be hell to pay. And the fireworks, the great streams of hot air and aggressively hurled rocks, will make today’s spectacular sights seem tame indeed.

Let’s enjoy the great pictures of 67P. And the violent spewings of TB1 and its associates. In preparation of what might be far weirder sights still to come.

Iraq: where there was doubt, Blair brings clarity at last

It’s such a relief finally to understand one of the great moral questions of our time. And it’s thanks to Tony Blair, whose intellectual and ethical qualities must be one of the wonders of the modern world.

Following his appearance before the Iraq enquiry yesterday, I now realise that our justification for the war isn’t that Saddam Hussein had weapons of mass destruction then. It’s that had we not overthrown him, he might have had them now. The legality of the war is unassailable simply because it prevented the development of what might otherwise have become a terrible threat.

This is an exercise in preventive justice that ought to be extended into other domains.

This is an exercise in preventive justice that ought to be extended into other domains.

• young men without proper jobs should be arrested on the grounds that they might otherwise become car thieves

• students should be arrested on the grounds that they might otherwise take illegal drugs

• anyone expressing an inclination to go into banking should be arrested on the grounds that they might screw the economy and then ask us to fund their bonuses

• and perhaps a British Prime Minister who gave any sign of developing faith, religious or otherwise, should be arrested on the grounds that he might kill an awful lot of people on no better basis than an unshakable belief in his own infallibility