Last Thursday the British government suffered a shock defeat in the High Court. It ruled that the government could not invoke Article 50 of the Lisbon Treaty, launching the process of exit from the EU, without parliamentary approval. Reaction to this has split along partisan lines, depending on whether you think Brexit is a good idea. But the reaction of some Brexit supporters is pure hysteria. This posed a challenge to the government that it has handled badly.
The case itself arises because Britain lacks a written constitution – so constitutional principles evolve in a rather haphazard way. The government’s case was founded on a curious combination of a brand new constitutional principle, and an ancient one.
The new principle is that sovereignty rests with the people, and that the referendum result was a clear expression of the will of the people, to which the state executive may conform directly, bypassing parliament. This is a perfectly viable idea. But it is not one that has been established in British law – and, indeed, it did not form the basis of the government’s legal argument, though it served to give it moral authority. The current principle is that parliament is sovereign, not the people, though parliament is subject to popular election. I am no fan of parliamentary sovereignty, though it makes some people misty-eyed – ironically it was much invoked as a precious British institution by Brexit campaigners during the referendum. Actually I see the sovereignty of parliament as a potential threat to freedom, and it should be subject to constitutional constraint, like all other parts of government. These restraints include such things as the Human Rights Act, and, indeed, the country’s treaty obligations to the European Union, which I view as a helpful restraint against corruptible power, rather than a dilution of democracy. One of my fears for Brexit is that it reduces the checks and balances of our constitution.
Still, parliamentary sovereignty is the rule, and it should only be changed through a due democratic process via parliament itself. And parliament has been very careful not to subordinate itself to referendums, which are an increasingly important part of our democratic system. They are always described as “advisory” – an act of consultation rather than authority in themselves. There is an ancient debate here between the virtues of direct democracy (such as referendums) and representative democracy (where elected parliaments have primacy). We haven’t resolved that debate properly – or if we have, it is in favour of the representative sort of democracy.
The ancient constitutional principle invoked by the government is that sovereignty derives from God to the anointed King or Queen, and from them to the Cabinet, a committee of the Privy Council. Parliament, or the People, are mere subjects of the royal whim (and, revealingly, “subjects” is the word commonly used in place of “citizen” in government language). This constitutional principle was heavily compromised by the Glorious Revolution of 1688, when parliament sacked King James II and passed the crown to William III and Mary II jointly; parliament further invoked its supremacy to secure the succession of Queen Anne in 1714 to George I. But the principle lives on under the Royal Prerogative, which is the basis of much executive power, including, relevant to this case, the making of treaties with foreign powers. The court decided that Article 50 would in fact involve a breach of Acts of Parliament rather than just the termination of foreign treaties, and so the government could not use the royal prerogative. Anybody who remembers the fraught parliamentary debates, from 1972 onwards, at each stage of the evolution of Britain’s membership of the EU, will not be surprised that it can’t just be unmade at the whim of the Queen’s representatives.
The court case isn’t over. There is an appeal to the Supreme Court, as is only proper in a case of such importance. But most think the judgement will be upheld. Talking to a senior lawyer when the case was brought originally, I was told that the High Court was likely to find for the government, but that the verdict stood a good chance of being overturned by the Supreme Court. So the government’s case looks weaker than it first appeared. You will gather than I am not particularly surprised.
So here we have a constitutional challenge being resolved in a civilised and proper way. That makes the reaction of some Brexit supporters very striking: they are saying that it is outrageous for unelected judges to intervene to thwart the clearly expressed will of the people. Suzanne Evans, a Ukip leader, has been particularly voluble, suggesting that the judges concerned should be sacked. But the Brexit newspapers, the Telegraph, the Express, the Daily Mail and the Sun in particular, are no better. The Mail sought to undermine the authority of the court by pointing out that one of the judges was openly gay.
This attitude reflects the views of much of the pro-Brexit public too, to judge by some vox-pops on the radio and social media comments. But it is in contrast to the equivalent populists in the US. These treat the US Constitution as holy writ, and nobody challenges the right of the Supreme Court to limit the actions of politicians or the state, or even to overturn the results of referendums, which happens frequently. Such is the difference that history makes.
What we have instead reminds me a lot of fascist attitudes in Europe before 1939, as practised by Hitler, Mussolini, and others, and advocated by a number of political groups in other European countries. The referendum was a favourite device of these dictators: a way of proving that they derived their authority from the will of the people. They saw the law as an instrument of executive power.
Of course we should not make the mistake of assuming that all Brexit supporters share such fascist tendencies, and we should remember that another key ingredient of fascism, the advocacy of a superman leader, is absent. Indeed pro-Brexit Tory MP Stephen Philips disagrees with the government on this, and has resigned in disgust at his party on this and other issues. But there seems to be a hard core, represented by Ukip, many Tory hardliners and a group of right-wing newspaper owners that are happy to undermine the independence of the judiciary. And that hard core holds the initiative, largely because the government lets them. The government response to the attack on judges has been limp; indeed one minister, Sajid Javid, actually joined in. Belatedly the Prime Minister and the Lord Chancellor affirmed their respect for the judgement, but failed to condemn the attacks made by their colleagues and the press, or create any kind of media splash.
This is a tactical error. The government’s best hope in pushing through Brexit is to take the heat out of it all. They had a major victory when Japanese carmaker Nissan was persuaded to keep investing in their British factory. This supported the general idea that the Remainers are stoking up a fuss about not much. Now the Remainers have something new to be angry about: the government’s complicity with an attack on the rule of law. Many liberals will be taking the Brexit slogan “We want our country back” for their own, so disgusted are they about the rise xenophobic and intolerant attitudes. Liberal Democrat campaigners trying to make the Richmond Park by-election about Brexit must be delighted.
Still, Remain supporters need to be careful. As yet there has been no major shift in public opinion. Most of the public will be unmoved by this rather abstract debate about the British constitution. That shift will only arise when there is a concrete threat to jobs, living standards and public services. Most voters assume the country will muddle through without too much damage. The government’s victory on Nissan was so important because it staved off one such concrete threat.
Incidentally that leads to an intriguing question. How was the government able to make the assurances it did to Nissan? It suggests that it is in fact aiming to achieve a version of “soft Brexit” with the UK staying in the EU customs union, and remaining subject to some EU jurisdiction – while the mood music is pointing to “hard Brexit”. This would explain why the government is so reluctant to say much about what it is trying to do.
But raising the political temperature on Brexit is a bad idea. The government needs to tread a middle course between the Brexit extremists and those that seek an opportunity to reverse the referendum result. A firm rebuke to those attacks on the judges would have been just that. And now it is too late.