Friday, 4 November 2016

The High Court and Brexit

A good day for democracy?

Gary Lineker tweeted last night: "Absolutely outrageous that parliament might have to make a political decision on the country's future."  Right on target, straight into the goal. (He is rapidly becoming one of my heroes, not because of Match of the Day but for the astuteness of his social and political comments, whether it's refugees, the media or Brexit. If you don't already follow him on Twitter, give him a try. You'll be in good company with 5.3 million others.) 

He grasped what the apoplectic right wing tabloids and their screaming headlines seemed to have missed. The High Court ruling that Parliament needs to be consulted before Article 50 is triggered is emphatically not in itself about Brexit. It is not trying to undo the referendum result by stalling the UK's departure from the European Union. It is not tampering with the policies of the Prime Minister and her government. It is not interfering with the business of ministers. It is insulting to the three senior lawyers to imply that they have crossed a line and played politics. They know better than anyone the limits of their own  competence. 

It's purely and simply about the law and what the Executive can and cannot legally do. It all turns on the Royal Prerogative that is being invoked by Mrs May as her authority to trigger Article 50 and give notice of the UK's intent to leave the EU. This was the point that was being tested in law. The judgment is that the government and Crown have "no power to alter the law of the land by use of its prerogative powers". And that's unanimous. The Prime Minister must seek the consent of Parliament before she takes this action. If she doesn't, its legality will be in question and the entire process will be flawed from the very outset.

I should have thought that those who cried "give us back our country!" during the referendum campaign would have welcomed this judgment. They couldn't have asked for a more ringing endorsement of parliamentary sovereignty which was one of the central issues of the referendum debate. Nothing but good can come from proper debate in which arguments are set out and tested. It will enable elected members to sound out their constituents on what they thought they intended when they voted in June. It will offer the government the opportunity to set out its Brexit negotiating position and benefit from the parliamentary conversation that follows. As someone said today, voting to leave the EU is simply a decision to take off on a journey somewhere else. What we don't yet know is where we are going to land. It makes sense for the passengers to be involved in agreeing on the destination. That's where elected members come in. 

Thanks to the ruling, there will be checks and balances that make sure powers are separated and the executive doesn't overreach itself by behaving unilaterally. I've worked long enough in institutions to have learned how open, transparent processes are extraordinarily clarifying in difficult and contentious situations. Leaving the EU is a formidably complex affair, not least in its legal ramifications. So why should the government be so afraid of public debate and parliamentary scrutiny that it is appealing this key judgment? It should be grateful for all the help it can get. Forget the media hype and the storm on social media. And even forget Remainers who imagine that Brexit is now less likely  to happen than it was before. (How I wish they were right, but that's another matter.)


No, the most worrying consequence of the High Court ruling is how the executive is reacting to it by closing ranks against its peers in Parliament. As someone else tweeted today, they are at risk of treating Parliament as if they were the enemy. And that's concerning.

When I've seen this sort of thing happen in other institutions like schools, universities and churches, it always ends badly. Nothing is gained by clinging on to power in a way that excludes those who ought rightly to be participants in decision-making. Everyone loses. And among the values that are most put at risk are what we most cherish in public life: trust, integrity, openness, truth-seeking, shared ownership and responsibility, the capacity to listen and think we could be mistaken. These are all essential to good governance. It's troubling that these virtues are on the line so soon in this administration's term of office. 

The lack of self-doubt among senior Brexiters in government is in danger of infecting the whole administration. It smacks of insecurity. I hope that back bench parliamentarians of all parties, whatever their views on Brexit, will not collude with any erosion of their authority. They were elected as this nation's sovereign legislature. Their voice is our voice. These are momentous times for the United Kingdom. Parliament's role is always critical but especially at defining historical moments like this. 

So Mrs May, you don't need to appeal this ruling. Please trust your parliamentary peers and trust the process. This ruling will enhance your authority in the long run, not diminish it. Remember your constituents and those whom your fellow members represent up and down the land. Be statesmanlike. It will win you respect among those who care about good governance as well as good outcomes for our people and our world.

One final thought. We should be proud of our independent judiciary who are not in the pocket of politicans. There are many who envy us, people who don't have the privilege of living in a democracy. It's awkward at times when you're in a hurry to get things done. But think where we'd be without it. We must never never put it at risk.

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