Monday, 7 November 2016

Invoking Article 50 is a Simple Matter of Principle



I congratulate myself that my own reaction to the High Court ruling last week that the Government will have to put our invocation of Article 50 on a statutory basis was rather more temperate than some. I did appreciate that it would be ironic for us to call on powers to be restored to our own parliament only for us to refuse to consult it.

Except of course that is a travesty of our position. The argument is that David Cameron's administration passed a bill allowing for a referendum to decide our membership of the EU and that the decision would then be enacted. So Parliament had contracted out the decision to the British people and agreed to be bound by it. Hiding behind the outdated idea that referendums are only advisory is dishonest and entirely irrelevant. We have referendums to let the people decide. They are not purely advisory. Parliament is sovereign, but only subject to the expressed will of the electorate via elections and, if parliament chooses, via referendums.

It should further be noted, as the Government's lawyers I'm sure argued, that Article 50 is just the initial step to our leaving the EU. It is an administrative measure which begins the process. It is hard to see why Parliament needs to be consulted about this narrow measure when it had already agreed, via the act that created the referendum, to be bound by the decision. As negotiations commence, Parliament will be consulted by means of various committees, questioning of the ministers responsible for it and then by means of passing the measures required to end our membership of the EU by repealing the 1973 act that took us in.

The decision was a surprise, not least for those who brought the case. They knew damned well what the rest of us knew, that they were just trying to delay and frustrate. The court has been attacked for its decision and rightly so. Since its decision there have been many calling on the prime minister to defend the judiciary and stop the attacks. She should ignore them. This was a fragrant abuse of power by the High Court, which was trespassing on to dangerous political territory. Politicians have every right to criticise high handed activism by the judiciary as has the press. This is not the only example. The farce about privacy injunctions relating to two celebrities we cannot name because one of them likes having sex in olive oil is another example. Everyone knows who they are but the High Court, backed up by the Court of Appeal has decided they must not be named. They even admitted that this made them look like asses. This is a law created by the judiciary, the same is true of the decision last week. They were not looking objectively at the law and the constitutional position vis a vis Article 50. They looked very much like they were trying to justify an intervention they had no right to make.

For evidence of this we need only produce the court's own reasoning, which is specious. Some rights, they argue, would be lost by the British people after Article 50 is invoked and this cannot be done by using the prerogative powers. This is tendentious in the extreme. They are attempting to square a circle here with a piece of sophistry. However there is no need to go into the arcane issue of prerogative powers, although many have questioned their lordships partial interpretation. Article 50 does not remove any rights. It does nothing. It merely begins the process of negotiation for Britain to leave the EU, something that the Government  is most definitively empowered to do by virtue of the prerogative and indeed by the act of parliament that enabled the referendum to be held. But even taking the argument on its merits is a nonsense too. The British people advisedly surrendered the rights that the court now says the Government cannot remove. That was what the referendum was about. The 'rights' are not being removed yet anyway and even if they were that is what the British people voted for.

Furthermore the rights exist as a consequence of our membership of the EU. They do not exist as part of British law. Parliament never created these 'rights' it created our membership of the EEC, later the EU.

The various vested interest groups represented by Gina Miller have argued that all that they are doing is defending the rights of parliament here. This would be funny if it were not so irritating. They were perfectly happy for parliament to have its rights removed when they were being sent to the EU, but now defend it as being some high minded principle. It is the purest hypocrisy for the Remainers now to be claiming that they are motivated by the desire to consult and empower parliament. If the High Court bought that then they are guilty of specious reasoning. The court case was a spoiler and nothing more. It is a clear attempt to delay the process, to buy themselves more time, to try, without having the honesty to admit it, to try and find a way to ignore the democratic will of the British people. It was a vexatious attempt to subvert democracy that ought to have been summarily dismissed.

And indeed Ms Miller has admitted as much in an unguarded moment as she enjoyed the thrill of her win and basked in the applause. On the morning of the referendum result, she informed us, as it became clear what had happened, she had retched over the sink in despair. Her little boy had asked what was wrong and she explained. But, said the little lad, you will do something about it won't you mummy. You always do. 

That rather gives the game away doesn't it. The British people had had the temerity to vote in a way with which the foreign born Ms Miller disagreed. Now she was going to do cast around for a way of doing something about it. No talk there of empowering parliament. She was about frustrating the democratic will of the people within hours of that will being made clear purely on the grounds that she disagreed with that verdict and was rich and connected enough to do something.  

I'm slightly torn by what the Government should do now. As I argued last week, there is no great problem about putting this matter to a vote. MPs will not dare to defeat the measure and the House of Lords had better not. If they do then a general election is the natural recourse, or the creation of hundreds of new peers to drive it through.

But by the same token this is a decision that ought to be overturned on a matter of principle. The judges last week gave a wholly dishonest and specious justification for their intrusion on a matter that has been decided. The Government is entitled to move Article 50 because it has been instructed to do so by the British people. Anyone who denies that is not empowering parliament, they are ignoring a democratic vote. We keep being told that such people respect that decision. They have a strange way of showing it. 

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