Court judgement works for May
The Brexit right gets ready for its march on the supreme court, while the Tories prepare for an early general election, writes Eddie Ford
Last week the high court delivered a major upset to the government’s stated plans. On November 3 three judges ruled unanimously that parliament alone has the power to start the Brexit process, not Theresa May using prerogative powers. The government is now appealing to the supreme court, which will start proceedings on December 5 and - quite unprecedentedly - all 11 judges will be sitting on the case, which will be streamed live on the internet. Most legal commentators do not think the government has much of a chance, as it will not be setting out any new arguments or evidence.
In the high court, government lawyers had argued that the prime minister’s prerogative powers - derived from the crown - were a legitimate way to give effect to “the will of the people”, who voted by a small majority to leave the European Union in the June referendum (a strange myth has arisen that there was a “clear” or “emphatic” victory). The crux of the legal dispute focused on article 50, which says any member-state may leave “in accordance with its own constitutional requirements” - an ambiguous term that both sides fought over. However, lord chief justice, Lord Thomas of Cwmgiedd, replied that the government “does not have power under the crown’s prerogative to give notice pursuant to article 50 for the UK to withdraw from the EU”.
The ruling went on to state: “By making and unmaking treaties, the crown [ie, the government - EF] creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of parliament confer rights on individuals or deprive individuals of rights.” At one point the judgment dismisses arguments about whether rights within the EU were conferred by act of parliament or international treaty as being “divorced from reality”, because parliament “knew and intended that the enactment of the [European Communities Act] 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other member-states” - therefore it would be “surprising if they could be removed simply through action by the crown under its prerogative powers”.
Slightly curiously, part of the judges’ reasoning was based on legal precedents dating back to the 13th century, in particular the Case of Proclamations that involved merchants who were prevented from working in London by proclamation of Henry IV - which was found to be in breach of a parliamentary act dating back to 1297, meaning that the crown had to withdraw its ban.
Afterwards, Gina Miller, the lead claimant in the case, said it was the right decision because “we were dealing with the sovereignty of parliament”, not “about winning or losing” - something the government might disagree with.
Obviously, the ruling has the potential to throw Theresa May’s Brexit timetable into disarray, as the judges will reserve their decision for a date “probably in the new year”. The prime minister has stated fairly defiantly that Brexit is “still on track” - apparently she telephoned Jean-Claude Juncker, president of the European commission, to confirm she will trigger article 50 by the end of March, as promised. He must be delighted.
In more bad news for May, or so it seems, on November 4 the Welsh assembly announced that it would seek permission to “intervene” in any government appeal against the ruling. This was followed four days later by an announcement from Scottish National Party leader Nicola Sturgeon that the lord advocate (Scotland’s most senior law officer) would lodge a formal application to intervene in the supreme court appeal, on the basis that triggering article 50 would “inevitably deprive Scottish people and Scottish businesses of rights and freedoms which they currently enjoy”. Not helping matters, Conservative peer Patience Wheatcroft told the BBC’s Today programme it would be “impossible” to trigger article 50 by the end of March - arguing that it is “only right” to delay pressing the button until “we have a clearer idea of what it actually entails”, and “there will be others in the Lords who feel the same way”. More generally, the decision - if upheld - could undermine the prime minister’s authority in future negotiations with other EU leaders about the terms and conditions of Brexit.
Naturally, there was a storm of protest from the UK Independence Party, Nigel Farage, the Tory rightwing, pro-Brexit press, etc. Sajid Javid, the communities secretary, fulminated on BBC’s Question time that the ruling was an unacceptable “attempt to frustrate the will of the British people”. The press were far blunter on their front pages. On November 4 the Daily Mail plastered a picture of the three judges with the accompanying headline: “Enemies of the people”. As for The Daily Telegraph, it pitted “The judges versus the people” and the Daily Express thundered about how the perfidious three judges have “blocked Brexit”, whilst The Sun proclaimed: “Who do EU think they are? Loaded foreign elite defy will of Brit voters”.1 The Mail Online, never one to miss a trick, informed us that one of the judges had previously “founded a European law group” (original emphasis), another “charged the taxpayer millions for advice” and the third is an “openly gay ex-Olympic fencer” - though whether that is meant to be a compliment or not is open to question.
Unsurprisingly, the legal profession has got very hot under the collar, demanding that the government protect them from ‘the mob’ that is threatening the rule of law and democracy in general. The justice secretary, Liz Truss, was heavily criticised for remaining silent, as the press duffed up the three high court judges - the former lord chief justice, the oddly named Igor Judge, complaining that Truss’s rather belated comments defending the independence of the judiciary had been “a little too late and not a lot”. More witheringly, the News Thump spoof news site ran the headline: “Liz Truss fails to condemn Daily Mail due to fear of being condemned by the Daily Mail”. In the end, the current attorney general, Jeremy Wright QC, felt forced to openly defend the vilified judges, telling a meeting of the Law Society in London that the claimants were entitled to bring their case “without being harassed or intimidated” and in the same way the judges are “entitled to decide this case in any way they choose in accordance with their judgment” - though, of course, “they would accept they are unlikely to decide so without criticism”. Naturally he said, the government would “respect” the ultimate judgment of the supreme court.
When Suzanne Evans, one of the three remaining Ukip leadership candidates, suggested on the Today programme that judges “should be subject to some kind of democratic control”, she was immediately castigated by the Tory pro-‘remain’ MP, Anna Soubry, who described her remark as “dangerous nonsense” and the “way of fascism” - an opinion endorsed by none other than JK Rowling. Meanwhile, Keir Starmer, Labour’s shadow Brexit secretary, gravely observed that “some of us have worked in countries where judges do as governments tell them and we know that is highly corrosive of the rule of law and democracy”. Responding to the accusations of “fascism”, Evans said she had not been talking about judges being subject to elections, but rather “pre-appointment and confirmation hearings” and “scrutiny by select committees”. Strangely enough, some judges in the US are partly elected (‘retention elections’, etc2) - so does that make it a fascist country? Well, I know that Donald Trump has just been elected president, but ... In fact, the CPGB’s Draft programme (Section 3.17) states that “all judges and magistrates must be subject to election and recall” - that would represent an extension of democracy, the opposite of fascism.3
Meanwhile Nigel Farage, needless to say, is worried that a “betrayal may be near at hand”, a stab in the back for the British people at the hands of the liberal elite. Indeed, he appeared alongside Gina Miller on the Andrew Marr show, remarking that “we may have seen Bob Geldof and 40,000 people in Parliament Square moaning about Brexit”. But “believe you me”, he added, “if people in this country think that they’re going to be cheated, they’re going to be betrayed”, then “we will see political anger the likes of which none of us in our lifetimes have ever witnessed in this country”. Further addressing the audience at home, Farage made an appeal: “I’m going to say to everybody watching this who was on the Brexit side, let’s try to get even, let’s have peaceful protest and let’s make sure in any form of election that we don’t support people who want to overturn this process”. Asked by a horrified Marr whether that could mean “disturbances in the street”, he replied: “Yeah, I think that’s right.”
As part of this “peaceful protest” to “get even” with the establishment, Farage is planning to lead “100,000 demonstrators” in a march on the supreme court on the day of the government’s appeal - inviting silly comparisons in some quarters to Mussolini’s march on Rome.4 Having said that, the protest - beginning in Trafalgar Square and culminating in Parliament Square - does have a distinct whiff of the reactionary populist anger, and backlash, that led in 1997 to the creation of the Countryside Alliance, which still has a formal membership of 105,000. The CA in 2002 organised a march in central London that - according to the BBC - attracted up to 400,000 people.5 Subsequently, it held “countryside rocks” - concerts backed by such luminaries as Roger Daltrey, Bryan Ferry and Eric Clapton. In other words, the Countryside Alliance is a reminder that the right can mobilise people onto the streets and concert halls as well as the left. As the Weekly Worker said at the time, this is what real counterrevolution would look like in contemporary Britain - not imaginary blackshirts goose-stepping around, whilst making stiff-armed salutes. The December 5 anti-judges march might possibly be another CA in the making.
Anyhow, a spokesman for Leave.EU said the demonstration would be a “reminder about what we voted for, so there is no slippage on the single market”: we want out completely. The campaign is planning to crowd-fund at least £100,000 from its supporters to pay for assorted barristers - the good and just ones - to represent ‘leave’ supporters in the court action: “We will also be launching with all ‘leave’ campaigns, including members of all political parties, a march on the supreme court to make a point that ‘Brexit means Brexit’” - the government, politicians and the establishment, including the court, “cannot ignore the democratic vote of the people in the referendum”. Naturally, both the British National Party and the English Defence League will be sending ‘delegates’ to the march - the BNP’s leader, Adam Walker, telling The Huffington Post (November 8) that “this is a fight to uphold the very integrity of our democracy”: the government must deliver the “will of the people” and trigger article 50 on a ‘hard Brexit’ basis.
As a result of the high court ruling, an early general election now seems even more likely. After all, the government only has a parliamentary majority of 10 following the recent resignation of Zac Goldsmith and now Stephen Phillips MP - who voted ‘leave’ but could no longer live with being labelled a Tory, citing Theresa May’s handling of the Brexit process and the government’s attitude towards child refugees. Goldsmith will certainly be re-elected (albeit pretending for the time being to be an ‘independent’), but it shows that May is skating on thin parliamentary ice.
More crucially, the Tory whips must be asking themselves whether they could actually get article 50 through parliament - there are many Conservatives, most notably Kenneth Clarke, who would do almost anything to prevent a hard Brexit. In reality, the court ruling provides a very convenient excuse for May to go for an early general election - it is the people versus the elite, so we need a fresh popular mandate to carry forth our agenda, and so on.
After all, May has captured large chunks of Ukip ground, which is now languishing on about 6% in opinion polls - quite a contrast to the 27.5% it won in the 2014 European elections, more than any other party. Also, you can more than reasonably guess - as May will have done - that she is likely to pick up the votes of a good slice of Labour Brexiteers. Jeremy Corbyn is hardly in a position to win them back. Talking of whom, he implied in a Sunday Mirror interview (November 6) that he would block article 50 if Labour demands for a “Brexit bottom line” are not met: which means continued access to the single market, no watering down of EU workplace rights, guarantees on safeguarding consumers and the environment, and a promise that Britain will pick up the tab for any EU capital investment lost as a result of Brexit.6
Corbyn’s line was immediately ‘corrected’ by the Labour right. Various “Labour sources” said Corbyn’s views had been “misinterpreted”, insisting that the party’s support for invoking article 50 was “unconditional” - Labour merely wanted to “amend or influence” the government’s negotiating strategy. Hammering home the point, Tom Watson, Labour’s deputy leader, declared that it was “very, very clear” that Labour would approve the Brexit process when it came to a parliamentary vote. As for Starmer, he was at pains to emphasise that the party will not “frustrate the process” of leaving the EU, accepting that the government has a “mandate”, but arguing it “must put its plan” before parliament, as “we can’t have a vote in a vacuum”.
Be that as it may, the prime minister can see the situation in front of her quite literally - ie, the opposition benches in the House of Commons. The straightforward truth is that the Labour leadership and the Parliamentary Labour Party are at war with each other, with no chance of peace breaking out - the perfect time to launch an early general election. May knows that she is on the threshold of a massive Tory majority. And, of course, while it is true that under the terms of the Fixed Term Act May would need a two-thirds majority in parliament to call an early election, in fact all she needs is a simple majority to amend the act, stipulating 2017 instead of 2020 as the election date. Job done - now get on with slaughtering Labour.
It is interesting to note, by the way, that following the court judgement the pound bounced upwards in the belief that the chances of a hard Brexit are diminished - which tells you what capital thinks about the situation. Also, with regards to Brexit, it is instructive to look at Theresa May’s recent trip to India. We have been repeatedly told by prominent Brexiteers and sections of the press that you can just go around the world making trade deals here and there - who needs the EU? Yet India and the EU have been trying to negotiate a trade deal for 13 years, making the recent Canada deal - which almost collapsed - look like an easy love-in.
The main sticking point is the right of Indians to get visas in order to come to the EU and, crucially, Britain. The number of Indian students studying at UK universities has more than halved from 39,090 in 2010-11 to 18,320 in 2014-15, following visa curbs introduced during May’s stint at the home office - with her successor, Amber Rudd, announcing new immigration restrictions for non-EU students and workers. Delhi, however, is demanding 50,000 work visas. You can easily imagine how that would go down with Theresa May’s base, who oppose increased European migration but, of course, love dark-skinned Indians. More to the point, David Cameron went to India in 2010 on a trade mission as part of a wider desire to engage with the ‘new emerging’ economies and so on. He promised to double trade with India, which at that point stood at $15.7 billion.7 Fast forward to now and it stands at $14 billion - yes, it has gone down. Frankly, Belgium trades more with India than the UK - and things are set to get worse if May sticks to her current intransigent line on visas. It is a total illusion, in other words, to imagine that Britain will be able to swan around the world getting lucrative trade deals with all and sundry - which May must know, not being a fool (though maybe a cynic).
However, we have to assume that she still believes in what she said before and during the referendum - as evidenced by her May 25 comments about the economic dangers of Brexit. Her recent Nissan deal seems proof that she wants to remain within the single market whilst claiming at the same time that she intends to end the free movement of people to Britain from the EU. Therefore the trick she has to perform is engineering a soft Brexit, or maybe no Brexit at all, whilst appearing to be working towards a hard Brexit.
From that perspective, the high court ruling could actually work in her favour - possibly getting her out of a hole. She can blame the courts, the judges, the Labour Party, union barons, the privileged liberal elite - name your favourite hate group - for sabotaging the government’s plans and frustrating Brexit and “the will of the people”.