A “Titanic” success for the government in the High Court

Brendan_Donnelly

 

By Brendan Donnelly, Director, The Federal Trust

 

When challenged about its claimed right to initiate the process of taking the United Kingdom out of the European Union without Parliamentary consent, Mrs. May’s government has relied on two arguments, one legal and one political. The first is that the renunciation of treaties, such as the Treaty of Rome, is under the UK’s largely unwritten constitution an executive privilege of government. The High Court on 3rd November decisively rejected this claim by the government, a decision that will be challenged in the Supreme Court next month.  Whatever the decision of the higher court on the strictly legal issue, it will leave open the broader question of the political and ethical appropriateness of the British government’s seeking to leave the European Union without Parliamentary sanction. In response to this challenge, the government deploys its second, political argument, that the British people have spoken in the referendum of 23rd June, their decision to leave the European Union is irrevocable and those who seek to reverse it are acting undemocratically. This claim deserves much more critical scrutiny than it has received in public debate over recent months. Too many commentators and politicians have allowed themselves to be browbeaten and morally blackmailed by accusations from the government and its allies in the media that the referendum of 23rd June, with its narrow majority in favour of ill-defined revolutionary change, constituted a mandatory basis for whatever action the government decided it wished to take in interpretation of that decision.

Contrary to an oft-asserted argument of the government’s supporters, the referendum held on 23rd June was not a legally binding one. If it had been, it would have specifically contained within itself provisions binding on the government in the event of a “leave” vote. The legislation of 2010 introducing the binding referendum on AV stipulated for instance that in the event of a vote for changing the electoral system the election of 2015 would be held under the new system.  To talk of “instructions” given to Parliament or the government by the referendum of 23rd is tendentious and misleading, not least because within the “Leave” camp a number of quite different conceptions existed of what was being voted for. The concept of “instructions” to Parliament also sits oddly with the traditional concept of Parliamentary sovereignty which many of those who voted “leave” last June thought they were voting to reassert. It is one thing to argue that Parliament has the duty to take account of the result of a referendum, but quite another to claim that it must passively endure as a mere spectator governmental action supposedly based upon that result.  The High Court in its ruling yesterday will have pleased many observers by firmly placing its legal decision in the context of maintaining Parliamentary sovereignty. It is yet another striking irony of the Brexit melodrama that it should be a private citizen appealing to the courts who has brought about this striking reaffirmation of Parliamentary sovereignty rather than a cowed Parliament itself.

It is unsurprising that confusion should persist about the precise status of the referendum decision taken on 23rd June. There is a total absence in the British constitution of any underlying legal or philosophical principles relating to referendums. Other countries have detailed legal and constitutional provisions about referendums, the subjects on which and the circumstances in which they may be held, their binding or non-binding nature, the role of government and Parliament in their organization. None of that exists in the British practice. National referendums usually take place simply in order to solve a problem that the government of the day sees no other way of solving. That was the genesis of the European referendum of 1975 and it was conspicuously true of the referendum on 23rd June, through which Mr. Cameron hoped to cure the long active cancer within his party of divisions on the European question. Neither he nor his opponents in the Conservative Party had any interest in holding a referendum as an exercise in consultative democracy.  Mr. Cameron wished to muzzle and then silence his internal critics. His opponents saw a referendum as the only way in which they could achieve an outcome which they knew they could never achieve by Parliamentary means. This murky background of Conservative political infighting must influence any political or constitutional assessment of the result achieved on 23rd June. It is worth pointing out in this connection that on the evening of the referendum Nigel Farage made clear that he would not accept an outcome against his own preferences, an attitude echoing those of his sympathizers who for forty years refused to accept the crushing referendum result in 1975.

More generally, in the General Election of May 2015, the Labour Party lost to the Conservative Party by a larger majority in the popular vote (some 6.5%) than the majority the “Leave” side achieved in the June referendum. Very few commentators concluded on that basis that the Labour Party should desist from its criticism of and opposition to the Conservative policies which figured in the winning manifesto. There is no obvious reason why a similar analysis should not apply in the case of Brexit. It is understandable that the Conservative government should point to the result of the European referendum as a justification for doing what most Conservatives have long wished to do, namely leave the European Union. But those Parliamentarians of a different view are equally entitled, if they wish and have the courage to do so, to continue to argue that leaving the European Union is a mistake that should be reversed, a mistake based on a questionable franchise for the referendum of 23rd June, a dishonest referendum campaign by the winning side and self-delusion about the real alternatives to British membership of the Union.

By their willingness to tolerate in Parliament and elsewhere a European debate which is only about what kind of Brexit takes place, too many parliamentarians are leaving unrepresented those many voters who believed on 23rd June that the national interest demanded and demands continued British membership of the European Union. For these voters the concept of “making Brexit work” is a nonsensical one. It is true that some versions of Brexit will do more harm to the national interest than others. Vigilant Parliamentarians will no doubt wish to scrutinize governmental proposals against this yardstick. But there is nothing remotely undemocratic about continued commitment to British membership of the Union by Parliamentarians who believe that leaving the European Union is a reckless threat to British economic, political and constitutional well-being. Indeed, if the national interest is their guiding light, it is their duty to continue making this case.

Mrs. May and her government are sometimes criticized for the vagueness and imprecision of their approach to Brexit, a vagueness which they justify by the need to preserve negotiating flexibility. Much of this criticism is unfair. There was a central equivocation at the heart of the “Leave” campaign, the delusion that it was possible to leave the European Union with no risk to the economic prosperity of the United Kingdom. To his credit, Nigel Farage appeared on some occasions to recognize that there would be an economic price to leaving the Union, a price that he argued was worth paying for national “independence.” But the great majority of those who voted to leave the European Union last June did so in the belief, encouraged by most of the “Leave” campaign, that Brexit would either bring no economic cost or substantial economic benefits. There is no negotiating strategy that Mrs. May can adopt that will turn this fantasy into reality. The most that Mrs. May can hope to achieve is to limit the economic damage by a form of “soft” Brexit. She has however made it politically almost impossible for herself to do so by appointing to the central roles in the Brexit negotiations those most vigorously committed, personally and ideologically, to the proposition that there is no economic price to pay for leaving the European Union.

There is a deep appropriateness in the finding of the High Court, irrespective of its legal confirmation or otherwise by a higher court. Those who forced an over-confident David Cameron to hold an ill-prepared referendum on British membership of the European Union know how precarious is the victory they won on 23rd June. As the dangerous economic and political consequences of this victory become clearer over the next year, they rightly fear that even their narrow majority of those voting (63 % of those entitled to vote did not support Brexit) will disappear. They naturally wish to take the quickest and from their point of view most certain path to consolidate their present political advantage.  Parliamentary scrutiny cannot but be a barrier to this executive arrogance. The original drafter of Article 50, Lord Kerr, is quoted as remarking that he had expected that the Article would first be utilized by a dictator who wished to rid himself of the troublesome constraints upon his actions by membership of the European Union. Lord Kerr was perhaps more prescient than he now realizes. It is indeed a dictatorial executive, in the form of the British Conservative government, that is today looking to trigger Article 50. Its unwillingness to subject itself to Parliamentary scrutiny on the Brexit process is a devastating commentary on the spirit in which it approaches the coming crucial months for the country’s future. The relatively small group within the Party that has long driven Conservative policy towards the European Union now has a firm grip on the levers controlling Brexit.  Having got the answer they wanted on 23rd June, they are not eager to give the people or Parliament the opportunity for second thoughts. The High Court judgement may however have created precisely such an opportunity. It will be for Parliament to decide in the first instance what use, if any, it makes of this opportunity.