Tag: Royal Prerogative

Enemies of the people, friends of democracy

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By Daniel Margrain

The ruling last Thursday (November 3) by three High Court judges to allow MPs the right to a vote over the decision to Brexit was welcomed by this writer. Campaigners won their battle to defeat Theresa May’s attempt to use the Royal prerogative as a means of overriding parliamentary sovereignty. The decision of the judges to apply what is a matter of constitutional law, means that the government cannot trigger Article 50 without a vote in parliament. Below is the 2015 Referendum Bill Briefing Paper which appears to be consistent with assertions in the liberal media that the referendum result is advisory, not mandatory:

To reiterate:

“The UK does not have constitutional provisions which would require the results of a referendum to be implemented.”

Following the judges decision, and despite the legal clarity, some of the tabloid printed media ran with inflammatory headlines. The Daily Mail – the paper that in the 1930s supported Hitler fascism, for example (see graphic above) – referred to the judges responsible for upholding the rule of law, as “enemies of the people”. Even some Tory politicians got in on the act. Sajid Javid, for instance, described the decision as “an attempt to frustrate the will of the British people.”

What Javid appears to be unaware of, is that in British law it is not the role of an independent judiciary to uphold and implement the will of the people but to uphold the law. Parliament and elected MPs are subject to the will of the people, not judges.

Javid’s stigmatizing language undermines the important role played by an independent judiciary in terms of its ability to curtail crude populism. The undermining of the independence of the judiciary and the promotion and normalization of referenda, is concomitant to the prevailing hate-driven agendas of the tabloids. But this also fits into a wider right-wing political narrative in which simplistic binary approaches to often complex problems are preferred to process and nuance.

For example, in order to garner the support of right-wing  fringe elements, the former PM, David Cameron, stated that Article 50 would be triggered automatically following any vote to leave. This modus operandi has continued under Cameron’s successor, Theresa May, who continues to argue for a “hard Brexit” claiming that Article 50 should be invoked immediately without any parliamentary scrutiny or oversight.

These kinds of inferences to fascist ‘mob rule’ was effectively what the Conservative MP David Davies was arguing for when, on Twitter, he stated the following:

Nov 3

“Unelected judges calling the shots. This is precisely why we voted out. Power to the people!”

Here Davies is calling for a non-independent judiciary. The one word for a country where the judiciary is not independent, and where the law is expected to reflect the temporary feelings and emotions of the public – often built upon superstitions, lies and exaggerations – is “dictatorship”. The German constitution banned referenda precisely because they know how fascists came to power.

Modern, secular based constitutions that separate the judiciary from parliament exist in order to prevent the drift towards fascism. In order to prevent this from happening, it’s the job of the Conservative Lord Chancellor, Liz Truss MP, to defend the independence of the British judiciary. But instead of coming to their defense by publicly criticising Javid’s or Davies’s comments, or reprimanding the editors of the Daily Mail, she has remained almost silent.

By arguing against the decision of the High Court judges, Javid and Davies are, in effect, arguing against the legitimate right of British judges to enact British law in the context of the British sovereign parliament. From the perspective of the ‘leavers’ this would seem ironical since they were the people who were most anxious to press the point about the need to ensure Britain maintained its sovereign parliamentary status.

In the avoidance of confusion, parliament (legislature) makes laws and the government (executive) implements them. The role of the judiciary is to check the legality of those laws. The separation of these powers is an integral part of the proper functioning of the state. In ‘An Introduction to the Law of the Constitution (1915, 8th edition, p.38), Professor A.V. Dicey explains the precedent by which the principle underpinning British parliamentary sovereignty is set and, consequently, on what basis the Referendum Bill above was formulated.

Professor A.V Dicey’s century-old legal precedent states, “No person or body is recognized by the law as having a right to override or set aside the legislature of parliament” which “has the right to make or unmake any law whatever.” This simple precedent means “that it cannot be said that a law is invalid as opposed to the opinion of the electorate.” 

In this context, referenda are irrelevant because “the judges know nothing about any will of the people except insofar as that will is expressed by an act of parliament.” The point about the separation of powers is that the legislature and the judiciary protect the public from the possibility that the executive will act against the interests of society of which an all-powerful unchecked state is emblematic. But it also exists to protect the public from itself.

How does this play out in terms of the referendum?

Parliament not only has a responsibility to the 17.5 million British people who voted for Brexit, but it is also responsible to the 29 million people who didn’t (see graphic below).

The role of MPs, in which parliament is sovereign, is not to represent the wishes of the public (a common misconception), but rather to represent the interests of the public in their totality. In this sense, therefore, the interests of 29 million people override the wishes of 17 million people. The interests of the people in the country as a whole, in other words, are not served by committing economic suicide.

As almost the entire professional career of elected politicians is based on them scrutinizing legislation, it follows that what they regard as being in the best interests of the public carries more weight in the decision-making process than people who voted in the referendum on the basis of what they read in the Daily Mail or as a result of the lies uttered by politicians like Nigel Farage, Michael Gove and Boris Johnson.

The fundamental nature of British representative parliamentary democracy is that the public elect a representative not a delegate. The sovereign and inviolate aspect of the system, in other words, means that British constituents elect MPs who they think will exercise their best judgement by voting – Whips notwithstanding – on issues that reflect their best interests.

As the majority of MPs supported remain, and the majority of constituents voted to leave, adopting the rationale described means that, logically, the latter voted against their own interests. Ensuring MPs vote in the best interests of their constituents is what parliamentary sovereignty means. In this regard, all of the pro-leave MPs who said the result of the referendum was a reflection of parliamentary sovereignty, were lying.

It is clear that the Tories wanted to by-pass the law in order to initiate a ‘hard Brexit’ without laying out the terms of such a strategy. The fact that the judges have forced a parliamentary vote – barring any successful appeal to the Supreme Court – means there now has to be proper scrutiny of its terms in advance of the vote. This is in sharp contrast to the continuation of the empty and meaningless “Brexit means Brexit” platitude uttered constantly by Theresa May.

David Cameron, called the referendum, clearly in the anticipation that his side would win. He also must of been aware that a victory for leave would not have been triggered automatically as the information contained in the leaflets sent to all households stated. In any event, the former PM resigned following the result of the referendum precisely because he knew he couldn’t fulfill the promise he had made to the electorate prior to the vote. Cameron’s unelected successor, is therefore tasked with clearing up a mess set in motion by the incompetency of her predecessor.

During the previous election campaign, the Tories manifesto promise was to remain in the single-market. Having so far failed to call an election over the debacle, May’s authority is highly questionable. She didn’t have a mandate before the judgement and she has even less of one now. My advise to Jeremy Corbyn and his team is to prepare for an early election.

The Tories Brexit debacle

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By Daniel Margrain

 

Theresa May’s announcement that the decision to trigger Article 50 of the Lisbon Treaty at the end of March at the latest, by-passing parliamentary debate, is a kick in the teeth for all those campaigners who argued that to do so would undermine due legal process in the wake of the passing of the 2015 Referendum Act. As I stated previously, in legal terms, the referendum decision to leave the EU was advisory not mandatory. What happened following the vote was therefore a matter of politics, not law.

However, the governments formal position was that it had no legal obligation to consult parliament on invoking Article 50 which gives Britain a two year period to negotiate the terms of its departure and insisted that every word of its defense had to be kept secret. But on September 23, crowdfunded group People’s Challenge lodged a court application to allow it to publish the governments argument. Six days later, the court ruled that the government must disclose the legal arguments on the procedure of Article 50.

The governments announcement to definitively invoke Article 50 while ignoring the rest of the process that Parliament set in train when it passed the 2015 Referendum Act, seems to be predicated on its ancient (archaic) use of the Royal Prerogative to trigger the process of the UK leaving the EU in the interest of the Government’s sectional and party political interest.

Indeed,  Teaching Fellow in Public Law and Jurisprudence at University College London, Thomas Fairclough concluded, “it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union.” By using the Royal Prerogative to trigger Article 50 of the Treaty of Lisbon this Government will be sweeping away rights at a stroke of a pen without the proper scrutiny of and a final decision being made by our Sovereign Parliament.

In announcing her proposed deadline for the triggering of Article 50 now, PM Theresa May said there will be time for preparatory work from all parties involved, which she hopes would lead to a “smoother process of negotiation”. May said that while she was willing to announce key landmarks in the Brexit timeline, she did not plan to continue sharing details during the negotiation process.“There’s a difference between not giving any commentary and giving a running commentary,” she said.

The lack of government transparency is bound to have implications in terms of whether foreign companies decide to invest in the UK. It’s incumbent on the government to be as open and transparent as possible in order to create the necessary conditions to allow companies to make an informed choice as to whether or not to invest in the UK.

According to the Telegraph, bosses of several of America’s banks and corporations have warned May that they will shift operations into Europe unless she can provide early clarity on the future shape of UK-EU relations. If the banks go, there will be virtually nothing left that the UK specializes in other than selling WMDs to whoever is prepared to meet the governments asking price, or making cars to sell to the Germans, Indians and Japanese.

The bad news was delivered to May in New York in a meeting with US investors, presumably intended to calm their nerves. According to an account by the Telegraph, May declined to provide information about how the UK government would approach the Brexit negotiations never mind when they would start. Neither May nor the government appear to have any idea about where the country is going or how long it will take to get their.

Try putting yourself, dear reader, into the shoes of the investors. If you had the best financial interests of your company and shareholders at heart, would you invest in a country that appeared to have no idea where it is going?

Estimates for job losses resulting from a “hard Brexit” range from 40,000 to 80,000 over the next decade. Furthermore, Chancellor, Philip Hammond has said that the retention of passport rights of bankers is highly unlikely given the constant calls from mainly Tory constituents demanding that immigration be curbed at any cost. As financial services are said to generate more than £66bn in tax in the UK, the consequences for society are potentially serious.

Meanwhile, EU leaders continue to harden their stance against the UK saying they will rule out any cherry-picking in relation to accessing the single-market. The negative consequences resulting from the UKs uncertainty surrounding Brexit is already happening. Job vacancies in the UKs financial sector have suffered a sharp decline since Brexit.

According to the Institute of Public Policy Research, for example, job openings in the financial sector have plunged 10 per cent across England, falling in every region during July and August. They attributed the decline to concerns whether the UK will retain its passport rights. London recorded a 13 per cent drop in job adverts.

Investment in infrastructure has also received a set back according to Standard and Poor, the ratings agency. In a note to clients, the agency said that private investment in infrastructural projects was under threat: “The biggest risks for infrastructural companies could be from an extended period potentially running for many years during which the terms of exit and replacement trade treaties with the UKs partners are renegotiated”, they said.

In other words, nobody wants to spend any money in a country where they don’t know where it’s going or how long it takes to get there. On the other hand, infrastructural assets might become cheaper as the pound sterling devalues. So we ought not be surprised if the Tories sell off what little infrastructure we have remaining to the Chinese and Saudi’s for short-term profitable gain.

The incompetence of people like Boris Johnson who led us into this mess and the mainstream media who failed to challenge him, have instead focused their ire on attacking Jeremy Corbyn, who argued in favour of the Remain position. How much longer Theresa May and her Tory government can insulate themselves from media criticism over the Brexit debacle, remains to be seen.