Brexiteers Should Back The Judges

newspapers-euThere are many reasons for objecting to the EU and for wanting to leave it. Surely one of the most honorable and decent criticisms is that the supposed ‘pooled sovereignty’ between member nations has in fact resulted in, at best, a dilution of representative democracy: the idea that our laws, taxes and general governance should be decided only by those the people have the power to choose in free and fair elections.

My principled and, I might state rather pompously, principled objection to the EU is that our parliament has the right to do anything that it wishes EXCEPT to transfer to give away its powers to others, because that power is lent to them by the people – it is not theirs to give away. If it is going to do so, then the people must give specific and direct permission for it do so do, and the best way of doing that is in a referendum – a device which the British resisted for decades on the sound reasons that in the recent past it has been a tool for demagogues and dictators to acquire consent to the abandon basic human rights of its citizens and for unchecked authority. Despite its unfortunate heritage, many European countries have, in their constitutions, a requirement  for a referendum if national powers are to be handed to other institutions, which is why a number of EU treaties have run into trouble, notably in Ireland. An EU Treaty is one of the areas requiring unanimity in the member states – every country has a veto.

In the UK we have only had three nationwide referenda; whether or not to remain in the EEC (1975); to adopt a new voting system, the Alternative Vote, for elections to the Westminster parliament (2011) and, of course a second referendum on the now European Union, in June this year. Each referendum has not been triggered by democratic principle but to try to resolve splits in the government party – or, in the case of the AV Referendum, parties in a coalition government.  Both the EEC/EU referenda were advisory – they were not binding on parliament. By contrast, the AV had a mandate within it – because parliament chose to insert a clause to state that if there was a majority in favour of switching to the Alternative Vote, this would happen.

Those of us who have been campaigning  against the EU for years (in my case over two decades) argue that, whatever the merits of and good intentions behind the EU, the so-called ‘democratic deficit’ was too high a price to pay. Whilst some think it is humiliating and embarrassing that we voted to Leave, I take the view that it’s humiliating that it took a huge battle in Brussels and threats by Conservative backbenchers to vote against their government’s budget before the UK won the right to scrap VAT on sanitary products – this was claimed to be a great victory!

Many were very suspicious of the way in which more and more powers were transferred (or ‘pooled’) from national governments and parliaments and it’s been clear for some 25 years that, whatever the official denials, the ultimate goal was for a United States of Europe – but with the member states having even less power than do the States in the USA. However, ‘they’ knew that such a  move would never be endorsed by the demos, so ‘they’ went about by underhand means; notably in the creation of a single currency and monetary and interest policy, which, as no less an authority than Nobel prize-winning economist Joseph Stiglitz concludes, has proved disastrous for hundreds of millions of citizens and their democracies.

This was a policy backed fervently backed and pursued by the ‘New Labour’ Prime Minister Tony Blair from 1997, most of the Labour party in government, by many Conservatives,  the TUC, CBI, and the bulk of economists and academics who opined in the few years before and after it was introduced. I took my ‘shock troops’ out on to the streets of Southport in that period and we were told by most of the great and the good, including the local MP, that we were wasting our time – that the single currency was inevitable and we were petty little Englanders, etcetera. They were all wrong. But, despite the opt-out on Economic and Monetary Union secured by the UK – and the realisation by Blair that he could never win a referendum on the UK adopting the single currency, which even he had felt obliged to offer – further attempts to integrate the EU countries in all sorts of areas continued, without the people having any direct say in it.

I look forward to the day when no petty bureaucrat can say “aaah, well, you’re right mate, but we can’t/ have to/ do it because of Brussels”. We might not like our government but we at least have a chance to chuck  one lot out and put another lot in, and to change laws, including how parliament works. At the moment, you can have a party committed to a policy, elected with a majority of 400, and parliament still couldn’t enact the policy if it was against EU rules.

The ruling by the High Court last week that, despite the victory for the ‘Leave’ side in this year’s referendum,  the government does not have the authority to trigger the process to leave the EU without parliamentary approval boils down to the view that, as parliament has agreed on all the legal ramifications of those treaties, parliament must also give express permission to start a process for them to be undone, via invoking Article 50 of the Lisbon Treaty. It is an assertion of parliamentary supremacy – and all those in favour of leaving the EU should welcome it.

The Conservative MEP and veteran anti-EU campaigner Daniel Hannan on today’s Peston on Sunday said that, in the past, government has signed treaties and then parliament has passed an Act and therefore, by precedent, can trigger Article 50 and THEN have a debate/vote in Commons and Lords. But this neatly glides over fact that we only joined the then EEC AFTER the European Communities Bill was passed and every further treaty has only had legal effect after parliament has passed a bill. Does Hannan not remember the row over the Maastricht Treaty, which usurped parliamentary power in many more areas? (This was the development which triggered my opposition to the EEC). It was signed by John Major in February 1992, yet the relevant bill wasn’t passed for another 18 months or so, with a general election in between (in which Labour opposed Maastricht), the government then losing a key vote and having to make it clear that unless this was overturned they would regard it as a vote of no confidence and there’d be a further general election.

Therefore, if we are to start an irrevocable, time-limited process of leaving the EU and consequently changing all these legal arrangements, then logically parliament must first agree.

If parliament had put a line in the European Referendum Bill stating something like : “In the event of a majority vote in the Referendum to Leave the European Union, the government shall have the power to invoke Article 50 of the Lisbon Treaty at a time of its choosing”. But it – as I pointed out many times on social media through the campaign – it didn’t! It doesn’t matter what Cameron put in that Referendum leaflet – it has no more legal validity than a promise in an election manifesto.

The High Court judges ruled that it was not their job to try and determine the wishes of the people, or determine the merits of the case for and against membership of the EU, or what the government’s negotiating position should be. Its judgement was a matter of law and constitutional precedent and principle. That’s the deal with judges – they are sticklers for that sort of thing.

Instead of certain newspaper attacking the judges as being ‘enemies of the people’ and other overblown claims (though I defend their right to do so!) they should welcome the ruling as a confirmation that, despite the embers of feudalism still burning in such things as the Royal Prerogative in our weird, non-codified constitution, we are not ruled by executive diktat and that nobody is above the law.

It should only take a single-clause bill to be passed by both Houses to satisfy the judges and for Article 50 to be triggered. There is a broad consensus that MPs – 62% of whose constituencies voted Leave – won’t try to frustrate this. If they did, even though calling an early general election is trickier than it used to be, there are two parliamentary devices for triggering one. A Conservative landslide would surely follow and most of the ‘deniers of democracy’, as they would surely be labelled (at best!), would be out. I think they get that!

Far from getting steamed up about the judges and predicting riots in the street, all those who support the Leave cause should urge the government to abandon its legal challenge, put its short bill to parliament, get it passed, and then start negotiations when it is ready to do so. Parliamentary authority will have been re-asserted, and, I fervently hope, will never be squandered or compromised again.

(Newspaper graphic copyright The Guardian) Composite: The Sun/Daily Express/Daily Mail/The Daily Telegraph

About richardrudin

I'm a Senior Lecturer in journalism by 'trade'. My background is mainly in broadcasting, although I initially trained (and qualified!) as a newspaper journalist. I'm interested in what shapes people's views/attitudes, nature/wildlife, politics, reading, music (fairly varied but particular fondness from pop/rock/soul genres circa 1964-84 ish) and broadcasting history, as well as new technologies.
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