A Brexiteer in Support of the High Court

This week the High Court in London ruled that the UK Government could not exercise prerogative powers, and trigger Article 50 (begining the process of leaving the EU) without Parliamentary consent. Those who brought the case argue that this decision is an assertion of the principle of parliamentary sovereignty; those who oppose the decision are claiming that this is an attempt to undermine democracy. It is possible that both statements are true.

Referenda are alien to the British constitution: the first held was in 1975, and before the coalition government this was the only example of a UK-wide referendum. Our constitution has rested on the assumption that Law emanates from the Crown-in-Parliament, and is not subject to a higher authority. In short, Parliament is sovereign.

The system of elections to the House of Commons has been based on the distinction between representatives and delegates.

This distinction was best defined by Edmund Burke, and means that we elect MPs, who are then free to exercise their private judgement as representatives, and who we can then hold accountable. This differs from having delegates, who receive instructions from their constituents and act according to them.

It may be that other systems work better or worse than our own, but it is absurd to introduce components of a delegatory system, such as referenda, into a representative system like our own.

Referenda are merely glorified opinion polls, and it is unreasonable to expect MPs who believe in British membership of the EU to stop voting in accordance with their judgement just because of slight majority for Brexit in a referendum. We elect representatives to govern according to their judgement; this is what they must do.

The reason I support Brexit is precisely because I believe in the Parliamentary sovereignty which I just described. That sovereignty has been subverted for 40 years, and I would like to see it restored.  It is absurd that a foreign authority should be able to tell a sovereign government about which policies it may or may not carry out. I am therefore in favour of any decision which rests authority more securely in Parliament, and restricts prerogative power.

There are many good and legitimate reasons why someone might support British membership of the EU. People might decide that issues of trade are more important that the constitutional issues which are of interest to me. Others might believe that the nation-state is a redundant idea in the forms we have inherited them, and desire to create a pan-European super-state. These positions are perfectly acceptable, but they cannot be reconciled with Parliamentary sovereignty. It was therefore bemusing to see the case brought to the High Court by precisely those people who want to deny Parliament their inherited rights, and instead vest the power to make law, and levy taxes, in an authority which sits above Parliament, and which Parliament would be unable to veto: humbug in the High Court.

The government is apparently intending to appeal the decision. I can’t see why they should bother. I doubt very much if Parliament actually would vote against triggering Article 50, as a majority of voters in the referendum voted for Brexit, and I think it might be more than any MPs’ job’s worth to disregard that.

Consequently, the reaction to this week’s decision has been wildly over the top from all concerned. Whatever the process, Parliament is not now going to prevent the triggering of Article 50.  What might instead happen, is that if the government allows this weird pause between the referendum, and the beginning of the Brexit process, then they allow for a campaign to gather momentum, which would keep the UK in the single market, which is membership of the EU in all but name. The government is responsible for this by dint of their own prevarication. It is another 6 months before they intend to begin this process; the process will itself take a further two years; and only once Brexit has been achieved can we formally begin trade negotiations with other countries.

Too much time has already been wasted, and the campaign to dilute the result has continued. The government should not appeal this decision. They should cut the gordian knot, and put the issue to Parliament this week. A one-off vote on the specific issue of Article 50, with no extraneous issues involved. I am sure it would succeed, and if it didn’t then Theresa May would have an excellent excuse to amend the fixed-term Parliament Act and put the issue to the country in a general election. With the Labour Party polling as they currently are, I doubt any of the Opposition would risk it.