The relevant
Article 50 of the Lisbon Treaty
says: “Any member state may decide to withdraw from the union in accordance
with its own constitutional requirements.” But the UK’s constitution is
unwritten and, therefore, contentious……..inevitably therefore some people took the government to (the High) court on the issue
The UK calls itself a “parliamentary democracy” but was judged
by a senior Conservative Minister in 1976 to be more of an elective
dictatorship – by virtue of the power Britain ‘s “first past the post”
electoral system gave
Prime Ministers. British Parliamentarians are generally “whipped” into support
for “their” government (of whichever sort) and shows its independence only in
times of crisis or when government whips cannot drum up the necessary numbers.
It was the narrowness of the votes which forced (a Labour)
government into the first concession to a Scottish referendum (on the question
of an elected Assembly in 1979) – although it was actually the third time that
decade the device of a referendum had been used. The first - in 1973 – was one
for Northern Ireland voters alone – one of no fewer than 8 localised referenda
for different parts of the UK (inc in 1998 for London). The 1975 referendum
seeking confirmation of the British membership of Europe which had been
negotiated 2 years earlier was the country’s first UK-wide one and also the
first time British Cabinet Ministers had been allowed a free vote.
Brexit was actually the eleventh referendum in British
constitutional history but only the
third which was open to all UK voters (The second UK-wide referendum was in
2011 - when a proposal for a system of proportional representation was soundly
rejected…)
So a referendum is still a
rarity in British constitutional practice……as such, its results are (and must
be) highly prized……
The issue before the UK’s Supreme Court is simply whether
government or parliament should trigger the request to Europe to withdraw. This
is how a prominent public law specialist put it -
The decision of the High Court in London (in November) was a ruling not on whether Brexit should happen, but on how it can happen lawfully. Some of the press coverage of the decision has been deplorable. There is nothing–nothing at all–in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law.
To rule on such matters is emphatically the courts’ job. For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and Parliament. But this is no such case. The court has done nothing improper and those who sit idly by whilst others who should know better castigate the judges for doing their job should be ashamed of themselves. We are a country that abides by the rule of law, and we should act like it.
So the question is whether ministers can trigger the beginning of the UK’s formal departure from the European Union without further parliamentary enactment. The question is not whether ministers could conclude that process without further parliamentary enactment. (The answer to that question would clearly be no.)
In other words, the questions is not “does Parliament have to be involved in the Brexit process”. Of course Parliament has to be involved. The question is a much narrower one: “does Parliament have to be involved before the Brexit process may be formally commenced under Article 50?”.
The Professor then goes on to argue that the High Court was actually
wrong in its eventual judgement that it was parliament which had the right to
trigger article 50.
A good friend of mine runs a website
which exposes the manoeuvrings of what he calls the global nomenklatura and
the deceit and silences of the corporate media. I have a lot of sympathy for
his position – if not quite his same faith in direct democracy and “the people”
A couple of weeks ago he sent me an article he had written
which excoriates
those who dare challenge the thrust of Brexit. It contains a sentence which
had me reeling -
“The Outcome of a referendum cannot at all be
questioned by anyone – just as God’s word cannot be questioned”
- which admirably captures the underlying thought process of Brexiters.
I see just three
little problems with this statement –
- The result of
the 1975 UK referendum was never accepted by eurosceptics whose subsequent and unceasing campaigning
efforts eventually paid off after more than 40 years. The 2015 Scottish
referendum result has not been accepted by Scottish nationalists and others….. Public debate never ends….so I don’t
accept the view that those who continue to argue for “remain” have somehow lost their right of free expression.
Indeed I find the vehemence of the campaign mounted by the popular press in
Britain against judges and “remain” parliamentarians (for example) frightening
and indeed dangerous in its utter lack of respect for (if not understanding of)
democratic rights…..….The British system is one which, until now, has respected
the rights of minorities since, one day, they too can become the majority….
- Britain’s
“unwritten constitution” has placed parliament; the judiciary; and a neutral
civil service at its core. I grant you that (a) parliament seems to have abrogated
much of its authority (if not respect); (b) the judiciary’s deep class
partiality has been successively exposed in judicial mistrials (such as The Birmingham
Six; and Hillsborough); and (c) that the senior civil service has been heavily politicised
in the past decade or so…..
But how ironic
that it is the very Brexiters who talked about “parliamentary sovereignty” who
are now objecting to parliament being given a voice in the withdrawal process….The
main opposition party has made it clear that they support Brexit - but that the
significantly different forms Brexit takes require parliamentary discussion and
approval (or another referendum) of its precise shape.
- The third
problem I have with the statement that the “people’s will is God’s will” is
simply that most of us are at least agnostics, if not downright atheists – and
even believers interpret God’s will in many different ways
The Guardian
newspaper embodies the voice of the liberal elite and is, indeed, a paper I
have been reading myself with increasing scepticism (respecting only
journalists such as John Harris and Gary Younge) but this
article had an important insight…
For decades, eurosceptics revered the UK’s unwritten
constitution: its sovereign parliament, its independent judiciary, its neutral
civil service. But an alternative centre of power - the people - has now been
established. Rather than their loyalty to the constitution, institutions are
now judged according to their loyalty to the demos (nearly half of whom voted
to remain) ...
The elected Commons is no more respected. There is only one
parliament that is currently guaranteed a say on the final Brexit deal - and it
is not the British one. Brussels’ much-maligned MEPs, unlike MPs, are assured a
vote.
Like past revolutionaires, the Brexiteers are seeking to
remake national institutions in their own image. But as they contend with the
biggest task facing any government since 1945, they may yet regret their
dismissal of accumulated wisdom.
I have never
been a friend of the mass media or the political class – this is the short
piece (written by Anthony Jay of “Yes Minister”) which is the best
expose of the Nomenklatura for me and which I always highlight in my
continuing effort to make sense of the global crisis eg Dispatches
to the post-capitalist generation (p70).
And this is
the expose of the corporate media - Fraudcast
News – written by Pat Chalmers who, for more than a decade, was part of the
Reuters News system.
