“Sovereign is he who decides on the exception.” – Carl Schmit (Nazi jurist and hipster constitutional theorist, writing in 1922)
“Nazis? I hate Nazis” – Indiana Jones
Constitutions restrain politics and politicians. That’s what they’re for – to set out the authority for using and limiting power.
Sovereignty expresses that power, who gets to use it.
The High Court decision giving Parliament, not the Government, the power to use Article 50 and leave the EU is crucial. It ensures that the deal to leave the EU will be scrutinised and debated, as well as making sure that raw acts of power are done with proper authority.
Reading some of today’s front pages you’d think that the judges had said that Britain had to stay in the EU. You might even think that it was because of the EU that this decision had been made. The Express called it the biggest crisis since Churchill became Prime Minister. The Mail called the judges “enemies of the people”.
It isn’t and they aren’t. The people who wrote those front pages are either liars, idiots, lying idiots, or haven’t read the decision.
What the judges said is that the Government does not have the authority to start the process of leaving the EU, it is Parliament alone that can do that. Why?
In basic terms it comes down to what name things are done in, whether it’s done in the name of the Crown (the prerogative powers that the Queen passed on to the Prime Minister and ministers) or in the name of Parliament (the representatives of the people).
Prerogative powers were traditionally used by the monarch and eventually required the advice of the Prime Minister or ministers. This includes dissolving Parliament (effectively calling an election) and, most obviously, declaring war, recognising other countries and making treaties.
Parliament has gradually been given a say in the use of these powers – before the invasion of Iraq in 2003 Parliament was given a vote over going to war (for all his faults Tony Blair didn’t have to do this) and the move to fixed parliaments introduced by the Coalition in 2010 effectively limits the right to dissolve Parliament.
Yesterday the High Court said that leaving the EU through Article 50 can’t be done through the use of prerogative powers, Parliament has to do so. This is because the Crown does not have the authority to change an Act of Parliament and we joined the EEC (what became the EU) in 1972 through an Act of Parliament. The European Referendum Act didn’t make the result legally binding.
Therefore, if we are going to leave the EU then it has to be a decision made by Parliament – MPs who were elected to act on behalf of the people – and not by the Government, acting on behalf of the monarch.
One complaint I’ve seen is that “the people” have spoken when they voted to leave the EU in June. The hysteria from the Express is part of this – you voted to get out, now the judges have stopped us leaving!! Like I said, an idiotic lie.
There are a few problems with referenda here are two:
The British constitution is not set up for us to be governed by referenda.
You can’t make complex decisions at the highest level by a simple yes or no vote.
In Britain laws are made in Parliament by elected/unelected representatives. Every five years a bunch of people tell us what they want to do and we decide which plan is best. They issue a manifesto and then win a mandate to do the things they promised.
We are a representative democracy and don’t have the system in place for direct democracy. Being asked what we want through a referendum is something that’s only come about in the last 40 years. Referenda don’t create laws, they’re a way for the public to have a say, a political, not a legal, tool.
A referendum doesn’t write law, it’s a way of politicians saying “what do you want?” on the promise that you’ll get your answer. The consequences of not following through on a referendum aren’t legal but political – you justify yourself to the public not a court.
This referendum was a deceptively simple question – should the UK remain part of the EU? Ok, we can answer that simply, yes or no, but what comes next? What does leaving the EU mean? What does it look like? How do you answer that question with reference to the referendum? That’s the second point here, how can a complex negotiation be approved by a yes or a no?
Say Scotland had voted to leave the UK in 2014, what would have happened next? What would their relationship with the rest of us look like? Would Scottish people have been sent back up north? Who would have the right to a UK passport? What would we even call the UK now that a big chunk of it had gone? Would there be border crossings near Gretna Green? Would either side build a wall to keep the English or Scots out? Would a Scottish company selling carpets on one side of the border have to pay a tax in order to fit the carpet in an English home?
These are exactly the details that we’re talking about after the vote to leave the EU. AND IT MATTERS A GREAT DEAL.
Take Ireland. Is the border between Northern Ireland and the Republic going to become a closed border? At the moment you can cross freely between two countries but when we leave the EU what will the relationship be on that patch of land? There are implications too for the Good Friday Agreement and the fragile state of peace that’s generally held for 18 years. What happens next?
How do we make all of these decisions on the basis of a simple yes or no question? Do we trust the prime minister, her ministers and the array of experts and lawyers in the civil service to do this? On what basis are they meant to negotiate? How should they know what they’re looking to achieve at the end of it?
“The People” want to leave, but what did “The People” intend to come next? How do we ask them? Yesterday the High Court gave a simple answer – ask their representatives in Parliament.
Did 17m people vote to leave because they wanted to stop immigration? Ok, but what about emigration? What about the people from the UK living, working or trading in the EU? If we leave the EU under “Hard Brexit” we lose out right to travel freely and work in Europe. Should we have our rights taken away without any democratic say?
Maybe leavers voted to save money being spent on EU membership and use it to fund the NHS? How do we know?
At a general election parties issue manifestos and you know what they said they’d do and can hold them to account for their promises. What manifestos were issued in the referendum? What promises were we made? Do we take a racist poster about immigration using queues of non-EU migrants as a manifesto? Or a bus advert saying we could use hundreds of millions of pounds for the NHS as a promise?
This is an opportunity for the people to have their say through their elected representatives. Sovereignty over this decision is with Parliament. According to the Express and the Daily Mail this os a travesty and the judges who ruled are “enemies of the people”.
If the case for leaving the EU was the we should reclaim British sovereignty then the fans of Edmund Burke on the Tory right should be rejoicing at yesterday’s decision. Brexit will take place in the spotlight of accountability rather than in deals done behind closed doors.
Constitutionality is never perfect, but in this case power will be checked by authority, how is that a bad thing?
David Carrington 