After the High Court ruling that Theresa May can't unilaterally invoke Article 50
This week, the High Court ruled, correctly, that the Prime Minister does not have the power to unilaterally take Britain out of the EU.
Legally, the Brexit referendum was advisory: it does not on its own constitute a decision. The actual decision must be made by Parliament. While Parliament is free to enact whichever option gets most votes, they are not legally bound to do so. Pretending that the referendum was binding is nothing but a way for spineless politicians to pass the buck for a decision which is, constitutionally, theirs.
Like most countries, Britain is a representative democracy. We accept that governing wisely is a full-time job, and elect representatives to do it. We also accept that the preference of the majority can result in unacceptable treatment of a minority, and allow MPs to overrule the majority in some cases.
When this happens, some members of that majority invariably feel betrayed. This has happend for centuries and is unlikely to stop. But a referendum is a little different. The implication is that the government agrees to defer a particular decision to the public.
So what should an MP do when faced with a 52-48 majority in a referendum?
In Britain, the answer has always been: enact the result unless there is a very good reason not to. Doing anything else — including enacting the result without debate or hearing all available evidence and arguments — is undemocratic. This is why the High Court reached the decision it did. The judges have not blocked Brexit, merely forced it thought the correct channels.
It is not obvious, but democracy only functions when the established system of government is followed. Whatever you believe the government should do, it must do it within its own the rules. The alternative is a government unbound by checks and balances. Nothing is worth that price.
If the government were to enact the result of the Brexit referendum without reference to any other factors, but not do so with other referendums, then it would be making a decision to treat this as a special case, and making it with no Parliamentary oversight. On the other hand, if we treat all referendums this way from now on, then we have changed the rules about referendums, and done so without any debate, arguments, evidence or democratic mandate.
There is a subtle but important difference between democracy and populism.
Is there a good reason for MPs to block Article 50? I believe there is:
- The referendum result was not a resounding “leave” vote. It was, at best, “we don’t know, but gun to our heads, if we have to choose, probably leave”. This should be respected, of course, but that doesn’t require us to pretend that the nation spoke as one.
- Nearly all experts agree that Brexit is a mistake.
- Since the referendum, the economy has tanked. Many products have gone up in price, the pound has gone down, and many international companies are looking to relocate.
- Perhaps for that reason, current polling suggests that the majority now wish to remain in the EU. The government claims to be respecting the will of the people, but there is really no good evidence that the people want Brexit.
- It is increasingly obvious that the government has no plan. The terms of Article 50 are clear: we must trigger it, and then negotiate a trade relationship with the EU in an absurdly truncated timeframe. 27 different countries have vetos over anything we might propose. The cards are deliberately stacked against leaving nations. Entering into that process with no coherent plan or negotiating power is madness.
More than anything, though, there is currently a rather nasty mob mentailty in some parts of the country, egged on by Ukip and some sections of the right-wing press:
- Nigel Farage plans to influence the outcome of a legal hearing by marching on the Supreme Court.
- The Daily Mail characterised three High Court judges as “enemies of the people”, people on social media called for them to be hanged, and the government made no response for days.
- Some MPs have stoked this anger by siding with the newspaper instead of defending the system they are part of.
- Overt, often violent, racism has become more common.
- Earlier this year, an MP was murdered in the street.
Maybe we should leave the EU. I don’t pretend to know. But leaving today, and in the way that Theresa May intends, would simply be pandering to the nastiest parts of the mob. It would say that we are no longer a representative democracy but a direct democracy. It would say that the way to effect change in the UK is to demonise and intimidate your opponents.
And it would ensure we get the worst possible Brexit deal. Our cards are on the table, face up, and they’re a two and a seven unsuited — and we’re negotiating not for the best deal but for the best deal that will appease a small but vocal faction of racists who already believe they are the majority.
52-48 is a knife-edge result. It is a mandate only for caution and restraint. Whatever the final decision, Theresa May’s “full steam ahead” approach is not the way to get there. Whether the aim is to remain, or to get a good deal when we leave, we need to take a step back, and calm down. We are not ready for this yet.
The job of an MP is to do the right thing for the nation. I hope they will do that. I fear instead they will cave in to populism and to intimidation from Downing Street.