The High Court ruling on whether the Executive, particularly the Prime Minister, had the right to use the Royal Prerogative to decide when and how to issue the Article 50 Notification to the European Union has given Europeanist MPs a unique opportunity to put the country back on course to become a fully functioning European democracy.
The judges have reminded Parliament it is not a second order institution, but a sovereign one within our unclear unwritten constitution. The Executive is responsible to Parliament, not the other way round. Yet we are witnessing an unprecedented display of authoritarianism: a Prime Minister who has never led her party to electoral victory refuses to discuss the country’s biggest decision in over half a century with Parliament. Threatened with a referral to the High Court, the Government stubbornly digs its heels in. When its intentions are declared unlawful, the Executive ignores the High Court – in this proudest of democracies! – and attempts to overturn its advice with an appeal to the Supreme Court. The Prime Minister declares her confidence of winning – confidence that the country’s High Court was wrong. One wonders whether May intends to defy the Supreme Court as well if they don’t do her bidding.
Here we have a Prime Minister so insistent on not talking to Parliament that she is willing to pressure a Supreme Court into approving her side-stepping of elected representatives just because they ask to take part in shaping the momentous changes the country is undergoing. Such Executive dominance is the hallmark of authoritarian states that try to reduce legislatures to mere rubber-stamping functions. Rarely has Britain needed a written Constitution more than today to guarantee the classic separation of the executive, the legislature and the judicial powers .
And how is it possible that our press feels entitled to stir up untrammelled aggression against the third pillar of democracy? In what other European democracy would half a dozen newspapers attack High Court judges for clarifying the relations in law between two organs of the state? Screaming headlines such as The Sun’s “Who Do They Think They Are?” show the press to be ignorant of the legal order and anyway comfortable with operating outside its framework whatever it might be. Clearly, it’s the press who doesn’t know their place. Yet where would they look it up? If we were say in Spain we could pull out our tattered copy of the1978 Spanish Constitution distributed to all households and check out how our authorities ought to behave towards each other and towards us. Only UK citizens have never been told in a readable format how our country functions and what our rights and duties are. Yet the EU has given us a limited but specific European Citizenship – in print – and as Gina Miller stated, she considered it wrong that our government felt free to take from us a European constitutional (treaty) proviso without consulting us or parliament.
Our public is also confused about who they are as voters in a referendum. Even though the High Court confirmed the consultative nature of the Referendum, those who voted Leave feel an exaggerated entitlement, claiming their 17m votes give them the right to upturn the lives of all 65m of us. Even selected Leavers in a Question Time audience on the same day of the judgment spoke as if the Referendum was the highest organ of the land, that gave them command of everything, with the government obliged to do their bidding, pronto. Some were perplexed and angry the UK had not already left.
The authoritarianism we face with the government’s accumulation of decision-making in its own hands, refusal to discuss Article 50, intention of keeping fellow MPs in the dark until they present them with a fait accompli of severance from Europe that they can take or … take, should be opposed by Labour, because after the trigger there is no turning back envisaged in law. It’s a two-year scramble for any deal from partners who have no obvious interest in rebuilding relations with the UK on favourable terms. In this rush, Labour’s and Remainers’ declared red lines that cannot be crossed on matters such as equality and employee rights are unlikely to be raised by the government. So it looks as if the soft ‘Better Brexit’ strategists underestimate the deep urge of Brexiteers to undermine all previous agreements protective of human beings that have been made under the umbrella of European Union’s values. We forget at our peril that the EU is our substitute constitution – without it, right-wing Brexiteers can treat us like bothersome flies to be swatted away.
Instead, if the government fails again in the Supreme Court, would it not be better if Remain MPs seized this last chance to save the country? They could resist being fobbed off with a parliamentary debate of a day or two. And even if offered a full draft Bill to discuss, it is unlikely to offer the soft Brexit they hope for. There have been no inklings of a substantial bargain with the EU being on the table at this stage so the government cannot have much to offer. There have been no concessions from anywhere in the EU. Opposition MPs have a chance to express deep alarm at the prospect ahead, full of risk to the quality of life and living standards of the people they represent. MPs would be also be doing their duty to protect the 16m voting Remainers and the wider public who want Britain to stay in Europe, and to respect the 3m EU residents who were legally invited to move here, to make this country their home. They will be living in the UK indefinitely as they have a right to do after 5 years’ residence. Britain is not a country of Leavers. Around 70% of adults did not vote for Leave. That gives MPs a mandate to tell the government it cannot invoke Article 50 because it would be a wholly irresponsible leap in the dark, endangering the livelihoods of far too many.
Of course this is a challenge for MPs because they have been banking on achieving concessions for their most burning concerns, but these will at most be promises. They cannot bank on negotiations that will somehow produce a better Brexit. Parliament is being demanded to hand the government a blank cheque. Yet Corbyn has talked about getting a comprehensive picture of the whole deal before approving or not approving, but why believe Parliament would be offered a chance to re-shape the deal just when it is getting close to the final exit?
The international discussion around the ‘divorce’ from the EU is not about people’s rights or how to be part of the struggle to save the environment. After pressing the trigger, there only the way is out, with or without commercial agreements picked up along the way. We cannot have half the protective roof, or half the right to appeal to the European Court of Justice, or half the consumer protection when we purchase goods abroad. As soon as Article 50 is involed, the whole edifice of our current moderately fair anti-discrimination law and semi-regulated labour market will depend entirely for its existence on the whims of a government that has already announced a bonfire of such niceties – even though it only has a 16 seat majority. Leaving the EU is the pretext for an attempt at a great setback for the population, in which any long-standing protection that once had its origin in a proposal from a Member-State will be purposely tarred with the EU brush and proposed for the chop, even if the UK was behind it in the first place, such as many Directives on Health & Safety at work.
For MPs, this should be an intolerable situation: impotence now, responsible fear of the future, the prospect of facing frustrated Leave constituents when their lily-white nirvana does not materialise, and hearing their Remainers criticize them for not having stood up to a government powered by destructive forces. Better to wise up now to the fact that, damned by some if they do and by others if they don’t , it would be better to be able to defend their conviction that the country and everyone in it fares better in the EU. 17m votes for a dream that is not going to come true is just too narrow a margin when two-thirds is the norm for such decisions. MPs cannot support such a destructive disentangling from 40 years of membership of a successful peace-keeping project that is legally bound to improve our working and living conditions, and also provides the strongest lever available to us for winning the biggest battle of them all: saving our threatened environment.