Judges, the EU, Parliament and Democracy

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Once again the great British public, stirred up by the Great British media, are getting themselves into a tremendous state about Europe, Brexit and all things anent.   Because the English High Court has ruled that the British government cannot fire the starting gun for leaving the EU by invoking Article 50, without first of all consulting parliament. Cue outrage and OTT headlines from the Daily Mail calling the three judges ‘enemies of the people’. Cue equal outrage and OTT headlines from the Guardianistas comparing the Daily Mail with the Nazis.   It seems that, as per the norm in our social media ,instant news infested, modern British politics, there is much more heat generated than light. I was asked to explain the situation.  So here goes.  With I hope a more balanced and helpful summary! In the words of our late lamented former Prime Minister ‘calm down, dears’!

Lets just ask some questions.

1) Are the Judges of the High Court ‘Enemies of the People’? No. The Daily Mail hyperbole is silly and unhelpful and potentially dangerous.     They were asked to make a judgment based upon the law and they made that judgment. They ruled that Article 50 could not be invoked without the agreement of the UK Parliament.  Right or wrong they are not enemies of the people.  It is also disgraceful that Gina Miller, the woman who brought the case, has been abused and mocked. She did what she thought was right. She is an intelligent and articulate woman and she has the right to do what she did. She is not an enemy of the people either. She is one of the people.

2) Were the Judges Right?  I don’t know.   They could well be. It has been appealed to the Supreme Court and most people think that they will agree with the High Court. But not everyone. This is a fascinating if somewhat technical analysis of the decision from a ‘Remain’ law professor who argues that the court judgement is wrong – https://notesfromnorthbritain.wordpress.com/2016/11/05/brexit-democracy-and-the-rule-of-law/ His analysis is worth looking at:

“Now, the first thing to say about ministers triggering Article 50 is that they are not doing it simply because leaving the EU is now government policy. They are doing it because this was the clear instruction of the British people in the referendum on 23 June. There are many things that the referendum did not decide. It did not decide the extent to which the UK will in the future participate in the single market. It did not decide whether the UK should remain within the customs union. It did not decide that there can be no future pooling or sharing of sovereignty over our border controls. It decided none of these things. It decided simply–no more and no less–that the UK should cease to be a Member State of the European Union. It decided nothing about what future relationship with the EU the UK should have (save that it should no longer be a Member State). There is one and only one way in which a Member State may lawfully leave the European Union. That is by that state triggering Article 50. So the result on 23 June was a direct instruction that Article 50 be triggered, because it was a direct instruction that the UK should leave the EU (and it was known when that instruction was issued that the only lawful means of achieving this is under Article 50).

The second thing to say about this is that the British people were able to give ministers this clear instruction because–and only because–Parliament enacted a law that authorised the referendum to be held (the European Union Referendum Act 2015). It wasn’t government ministers that authorised the referendum: it was Parliament.”

 Another analysis that I found helpful is here – http://www.telegraph.co.uk/opinion/2016/11/04/the-supreme-court-must-overturn-the-article-50-ruling-otherwise/

 3) Isn’t this a good reaffirmation of Parliamentary Sovereignty? Isn’t this what the Brexit people wanted (to take ‘control back’) so why are they so upset?

 There seems to be a double irony here. On the one hand we have those who asked for Parliamentary sovereignty to be returned, apparently complaining when that happens. On the other we have those who are happy to hand parliamentary sovereignty to the EU, using that very same sovereignty in order to be able to do so! As Brendan O’Neill remarked

“Remainers support parliamentary sovereignty like an electric chair supports your back”.

The Labour MP David Lamy said that parliament should decide and should decide to stay in.   But he forgets that Parliament did decide. Parliament decided by 475 votes to 59, to hold a referendum which we were promised would be respected and that we would be given what we voted for. But now Mr Lamy and his colleagues are effectively saying, we didn’t mean it…give us our ball back!

Another irony/hypocrisy is the fact that the trouble for the government is not likely to be the House of Commons but the 1,000 unelected members of the House of Lords.   Why is this ironic? Because it is politicians like the SNP and the Lib Dems who complain about unelected Lords who now want to use them to prevent the largest democratic vote in British history being enacted.

And yet another irony is that the SNP are the ones arguing for the sovereignty of the Westminster Parliament. Can you imagine what the reaction of the SNP would have been if we had voted Yes in the Independence referendum and Westminster had said it was only ‘advisory’!?

Let me give another example of gross hypocrisy and crass cynicism. SNP MP Pete Wishart, in a debate in which he attacked the undemocratic nature of the House of Lords declared –

“I would support Attila the Hun, Genghis Khan and their many hordes if it helped to defeat this government. I have no issue or problem with supporting the House of Lords when it gets something right”.

In other words his ideological commitment to the EU is such that he would be prepared to support the House of Lords and mass murderers and violence if it defeated the government!

An example of the kind of hypocrisy that seems to blind some politicians is Alex Salmond complaining that it was wrong to criticize an ‘independent’ judiciary.  No-one has done this more than Mr Salmond!  https://www.theguardian.com/uk/2011/jun/01/alex-salmond-scotland-supreme-court

4) Is Scotland different?

We are told that the people of Scotland voted for Scotland to remain and therefore all Scottish MPs should reflect that.   Whilst it is true that 62% of those who voted did vote for Remain. But they did not vote for Scotland to remain, because that was not the question on the ballot form. The vote was for the UK.

Can you imagine what the SNP would say if Scotland voted to leave the UK but Shetland said No, and demanded the right to remain in the UK? As a friend asked on Facebook – If Scotland had voted to leave could an individual millionaire block it, could Shetland vote for a soft independence and would it still be up to the UK parliament?

Furthermore if we really want democracy – who will represent the 38% of Scots who voted for the UK to remain? If 100% of Scottish MPs are ordered to vote against Article 50, how does that fairly represent Scottish views?

The SNP claims to speak for all the people of Scotland. It doesn’t. It doesn’t even speak for the 30% of SNP supporters who voted Leave. And the apparent unanimity of its MPs and MSPs has been shown to be false – http://stv.tv/news/politics/1371932-alex-neil-reveals-he-and-a-number-of-snp-msps-backed-brexit/ 

5) Is this about process and not politics? This is what Gina Miller claimed. It’s just a matter of process. To use parliamentary language this is being more than a ‘little economical with the truth!’ No one spends a fortune to get government procedure right. Let me explain it this way.

Frivolous Presbyterians!

Somebody tweeted ‘I thought you as a Presbyterian minister would appreciate good order and legal procedure’. Little did they know it but they have hit the nail on the head.   In the troubled years of the 1990’s for the Free Church, I wasted far too many hours in church courts where amateur clerical lawyers spoke about proper order, correct procedures etc. There were appeals, counter-appeals, points of order, notices of motion etc.   The main reason was often to prevent things happening or prolong the agony. It was so wearing. I remember at one point after a particularly prolonged meeting we had made a final decision and up rose one senior minister and rather sombrely announced that he was ‘protesting’ and thus proceedings would be ‘cisted’ for several months so that it could go to a higher court. There was a collective sigh. Then another senior minister leaned over to me and whispered “challenge it, say he’s ‘frivolous’”. For anyone who knew my opponent this seemed ludicrous. But in the wonderful world of religious legalese, ‘frivolous’ is a technical term that means that someone is using the procedures of the church to try and delay or prevent a decision being enacted. And so I claimed ‘frivolity’ and proceedings were not cisted.

This lawsuit is ‘frivolous’. Gina Miller’s lawyers argued that once Article 50 is triggered some rights, such as the right to vote in EU elections and to petition the European Court of Justice, would be extinguished forever. Well as that great philosopher Homer would say ‘duh’! Of course leaving the EU means that we won’t have a right to vote in EU elections….I suspect that most of the British electorate are intelligent enough to realise that that is what we were voting about!  I no more have a human right to vote in the EU election than I do in the US or Russian elections!

The intention of this lawsuit is not to just make sure that the process is technically correct. Its intention is to try and hinder or prevent Brexit.

I didn’t think I would ever say this, but Nigel Farage is superb in this.

 

5) Will this end Brexit?  

 The commentator Peter Hitchins has said that he does not expect Brexit to go through and that this type of tactic will eventually succeed. Certainly some on the financial markets (who prefer things to remain the same) thought that the judges ruling meant Brexit is less likely.   But is this true?

The ruling in and of itself will not prevent Brexit. But it will allow the determined anti-Brexiteers to put in amendments, make trouble, hold things up and argue for a second referendum.

Beware of politicians talking about how they ‘respect’ the vote. What they mean is almost precisely the opposite. They have to respect the vote because it happened, but they will justify themselves by pointing out that they are magnanimously looking out for the wider interests of the public – who just don’t have their understanding.

This man gets it spot on!   Don’t patronise working class people and assume that they are just there to vote for you.

 

 

6) Why is there so much opposition to the Brexit vote?

There are those who believe that Brexit was and is a disaster for Britain and that it will do a great deal of harm. But that doesn’t really explain the kind of almost religious fervor that some have in terms of the EU. I’m not sure why there is such an emotional attachment to a political institution but it is certainly there.

It is also the case that the Establishment are more fervent about this. Why? Is it because they are all intelligent well-educated people who understand things better than the average voter? Is it because they have a real concern for the poor? For peace? For justice? And that the EU will deliver that? Or is it that they benefit most from the EU and therefore want to defend their territory? Perhaps a combination of many factors and blind spots.
What do we mean by the Establishment? We mean those who are in control, those who run things, those who decide where the money goes. They are not necessarily bad. But it is bad if they are exclusive.    There is a legal establishment, an educational, arts, political, religious, media and economic establishment. And most of them are overwhelmingly pro EU.

Lord Chief Justice Thomas (one of the three judges who made the decision) sits on a body that argues for integration of European Law.   Do we really have an independent judiciary?   Certainly it is meant to be independent of the politicians but that does not mean they do not have political views or influences?   And there is another problem with the law. Ordinary people could not afford to take a case like this so by definition those with money have an advantage.

Most University principals, lecturers, most C of E bishops who sit in the House of Lords, 80% of Big Business and most political leaders (all in Scotland), are all pro-EU .  So much so that they cannot comprehend anyone not agreeing with them – and therefore they just blame ignorance, xenophobia and racism.   The wealthy and middle class liberal ‘progressives’ just assume that being pro EU is what any civilized cultured person would be – this includes most of the new political Left (who have forgotten about economic justice), social liberals and much of the Right.  They are epitomized by Tony Blair (threatening to come back into British politics to ‘save’ the EU), Nick Clegg, Ken Clark, Tim Farron, Owen Smith, George Osbourne, Nicola Sturgeon and others who genuinely think that the people are basically ignorant and should vote how they are told.  This is Tony Blairs threat….

main-tony-blair-blasts-elitist-brexit-campaigners-saying-its-our-destiny-to-stay-in-the-eu

 

It’s a picture of the current divide in British society that this court case was brought by a hedge fund manager.   It reminded me of this horrendous photo from the referendum.

 

BRITAIN-EU-POLITICS
A boat carrying supporters for the Remain in the EU campaign including Bob Geldof (C) shout and wave at Brexit fishing boats as they sail up the river Thames in central London on June 15, 2016. A Brexit flotilla of fishing boats sailed up the River Thames into London today with foghorns sounding, in a protest against EU fishing quotas by the campaign for Britain to leave the European Union. / AFP / BEN STANSALL (Photo credit should read BEN STANSALL/AFP/Getty Images)

 

Where now?

 My own view is that it is unlikely that any meaningful Brexit will happen. The forces allied against it are very strong and the irrational emotionalism combined with the money and powers mean that it will be difficult to carry through. The EU has never accepted the result of a referendum – they either ignore it or ask you to keep voting until you get it right. And most of the Establishment in the UK share that view.   Take for example this gem from commentator Polly Toynbee who in the Guardian had a message for MPs:

“It is not anti-democratic to try to stop what so many other countries see as an incomprehensible act of economic suicide.”

This is a somewhat surreal definition of ‘democracy’. If other countries (and the elites in them) don’t like what we are doing, then British politicians should overturn a democratic vote, in order to protect democracy. This is autocracy not democracy. Power belongs to the elites and they will get their way by hook or by crook – the irony is that both left and right coalesce with this. Jeremy Corbyn announced that the Labour party would the result of the referendum but we would not allow Brexit unless we get access to the single market. Although he later withdrew this.

If that happens then democracy will really be dead. The people will be powerless, just voting fodder for whichever politicians the establishments offer us. The dissillionment that many will feel will kill real democracy. This is what we were promised – I still have the government leaflet sent to all the electorate which says – “This is your decision, the government will implement what you decide.” For that not to happen – whatever excuses the politicians manage to come up with – will end any meaningful British democracy. The mantra ‘don’t vote, it never changes anything and just encourages them’ will be seen to have been proven.

But….

It’s not over yet!   It appears that the Prime Minister, Teresa May, is a determined woman and someone who means what she says.   Having her in charge rather than Boris Johnson, Nigel Farage, David Cameron or Michael Gove means that Brexit is more, rather than less likely.

The Labour party is a mess and will be wiped out in a general election unless it changes its policies to reflect its core electorate. The Liberals are a tiny rump and the Scottish Nationalists, as we have seen are beginning to fray at the edges. If the ‘Remainers’ overreach themselves then Teresa May will be compelled to call an election and I suspect that the Tories will win overwhelmingly with the Liberals making a mini comeback as the pro-EU party, and the SNP getting a surprise as Tory MPs return to Scotland.

There are those in the Labour party and the SNP who will stand up for and defend the decision that the British people made in the referendum.

And we still have free speech. When you have people such as Brendan O’Neill – writing such magnificent pieces as this http://blogs.spectator.co.uk/2016/11/tough-fight-democracy-begun/ and this http://blogs.spectator.co.uk/2016/10/morrissey-right-brexit-magnificent/  then there is hope!

But our real hope is of course elsewhere – so I finish with the Christian hope. What does God have to say?

We don’t trust in politicians or in judges who think they are sovereign. The real sovereignty is with the only real Sovereign. When the result of this court case came out I felt a wee bit depressed – not so much because of it, but rather because I thought – oh no, here we go again. But I was speaking at Abertay University that night on Daniel 5 The Writing on the Wall and was greatly struck by the phrase “he acknowledged that the Most High God is sovereign over all kingdoms on earth and sets over them anyone he wishes” (v.21). This trust in the sovereignty of God does not mean that we are political pietists who don’t care about what happens. It just means that we have such trust in the Sovereign Lord that we recognize that we don’t rule and neither does Trump/Clinton/Blair/Farage/Corbyn/May/Sturgeon or any of the elites. And so we can respect those in authority and those not in authority. We can have peace, even when we see things that disturb, anger and perplex us.

Rejoice in the Lord always. I will say it again: Rejoice! 5 Let your gentleness be evident to all. The Lord is near. 6 Do not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God. 7 And the peace of God, which transcends all understanding, will guard your hearts and your minds in Christ Jesus. (Philippians 4:4-7 NIV)

 

European referendum – The TIPPing Point

 


6 thoughts on “Judges, the EU, Parliament and Democracy

  1. Many thanks David, for a balanced piece. Thanks too for the excellent links. Brendan O’Neil’s article on behalf of the thickos who should not be allowed a say is excellent. Prof Adam Tomkins’ piece from North Britain, as Scotland used to be referred to, looked unarguable: and his CV indicates he is no thicko. As to the independence of the bench in the High Court I am sure the gentlemen concerned are well able to detach themselves and their personal preferences from an analysis and application of the law. That is what is required of a judge. The simple man (thicko for short) could be excused however, where one of the judges has a previous strongly held position relevant to the case at hand, in thinking that there is the appearance of bias. Hopefully the case put to the Supreme Court will be as persuasive as Prof Tomkins’ and will overturn the existing ruling.

    Thanks too for your reminder and cautions at the end.

  2. An interesting piece.

    Going by your points.

    1. Agreed. Those headlines were something else.

    2. I disagree with law professor slightly. The referendum was not an instruction but I would concede the point that it is difficult ignore the will of the people. I also wonder about his interpretation of Article 50. Triggering is the same as concluding in this process. Once started it cannot be stopped (as far as I understand things) by the UK. It happens either after two years or a unanimous vote amongst the other EU members. Parliament cannot conclude it (on its own anyway). But this is way above my education level so dont quote me.

    3. As we have discussed elsewhere, we disagree on issues like pooled sovereignty. But reform of the House of Lords would be welcomed. The legislative setup for the Scottish Independence Referendum was different so Westminster could not say it was advisory.

    4. I think your Shetland example is odd without some kind of referendum there as well. Indeed who represents the 38% of Scots – Nigel Farage, Iain Duncan Smith, Theresa May, Boris Johnson, Liam Fox, David Davis, etc. Who represents 48%? No-one in power anyway. If the argument that it was a UK referendum with no Scottish element per se, then it doesnt matter who is representing who in Scotland. Brexiters are in power claiming to speak for Britain cause that is what Britain voted for. Well 52%.

    5. I would have argued that it is about the process of politics.

    5 (you used 5 twice). This decision. No it wont. Delay, probably. And rightfully. Your Brexit is not the Brexit that is going to happen. Do you want the opportunity for your representative to make sure that it is closer to the Brexit you want rather than someone elses?

    6. Its not an emotional attachment to institutions. Rather, I suppose it is about ideals (which are then supported by institutions). The UK joined the EEC a couple of years before I was born and its development has been something that has happened throughout my lifetime. The idea of free movement of people is fantastic. I have Scottish friends and family working across the continent. I have friends (and one distant relative by marriage) from across the EU. My life is richer for having them. I by polish products in Tesco (as well as the myriad of continental goods in Aldi and Lidl). Demand created by immigrants and no import problems has made this easy. Many of the stated ideals of the EU such as human rights and democracy, easy travel and cultural exchanges and shared knowledge and research are the ideals that have helped form who I am. And that is being taken from me.

    As you know, its not just the University principals, lecturers, most C of E bishops who sit in the House of Lords, 80% of Big Business and most political leaders (all in Scotland), are all pro-EU that are pro-EU. People like me are. My neighbours in my council estate are Pro-EU as well. They see the signs of things funded by the EU and know that no-one else wanted to fund the work. One neighbour has a friend on an EU funded Parkinsons study. Another, much older, remembers when there were limits on the amount of alcohol that can be brought back and really wants to retain the current, technically limitless, about he can now bring in. My mum lives in an expat community in Turkey and although that is not in the EU, the entire community there really values only having one border to worry about when driving and delivering goods.

    Yes I do mostly blame ignorance, xenophobia and racism. Because it was a factor. A very strong one. To deny it is to deny simple facts.

    Where now? Here we have differing views. You think it wont happen I think it will. You think the EU can stop it. I think that nothing will stop Theresa May from eventually triggering Article 50. You cite referendums being done until the “correct” answer is given.

    Yet:

    Norway 1972 and 1994 – still not a member.
    Denmark 1992 – rejected Maastricht and then negotiated opt-outs to the bits the Danes didnt like and then signed up. From the referendum to the Edinburgh Agreement was 6 months. We arent negotiating opt-outs and changes. We arent even negotiating 5 months later.
    Ireland 2001 – rejected Treaty of Nice and then got its opt out of mutual defence stuff as well as dealing with the issue of not being given enough influence.
    Denmark and Sweden – both continue to reject the Euro.
    The Treaty establishing a Constitution for Europe was rejected by the French and the Dutch. No repeat referendums.
    Ireland 2008 – Again with the Irish influence thing. They get to keep it again.
    Denmark 2015 – About one aspect of one of the opt-outs. It was retained.
    Dutch anti-Ukraine thing 2016 – no idea frankly.
    Hungarian xenophobia and racisim referendum – turnout too low.

    So really only three referendums have been rerun and none of them have been about leaving. Irelands have been about influence in the EU and wanting to keep it. The Danes got opt-outs. None of them are about a complete exit. Even the double rejection by the Norwegians isnt constantly under referendum review.

    Voting to leave was a different thing to any other referendum. And with a government and populist vocal media backing it, there is nothing else on the cards bar leaving.

    Democracy will not die if there is another referendum. By definition. The same question with the same degree of information and promises thinner than a sacramental wafer could be. A different question with clearer information and statements of what is actually going to change. For example, if there is an element of immigration to be retained or still staying in the single market or paying into the EU budget then I think that will need another referendum as that is not Brexit. Brexit means none of that and if politicians decide that it does then that is when democracy dies, not when people are asked to vote.

  3. Some observations.

    1 This court proceedings were always likely to happen, bearing in mind the almost immediate response to the referendum from the likes of David Lammy and Kenneth Clarke stating that it was a plebiscite, and an undermining of the sovereignty of Parliament.

    2 There is not and equal access to the Courts as proceedings need to be paid for.

    3 To apply for judicial review the applicant needs to have a “locus standi” that is a “sufficient interest”. It is arguable whether a private individual in this case should have been permitted to take the case. It seems that it was conceded by the government from the outset that there was such standing,

    3 The independence of the Courts is fundamental to our Constitutional democracy . It is part of the separation of powers, and balance. However, consideration needs to be taken of the process of appointment of the judiciary.

    4. Linked to independence is the principle that not only must justice be done it must be SEEN to be done. It is here the question of declaration of judges interest and conflict of personal interest is pertinent in considering whether the judgement is impartial. A current example of this is the lengths to which the government has gone to establish the impartiality of the judicial lead on the sexual abuse public enquiry, and the integrity shown by one judge (think it was Butler- Sloss) to stand down when her impartiality was questioned. The prior involvement in so much EU law by two of the High Court Judges, would seem to me a justifiable reason to consider the question of partiality. I’d agree with Nigel Farage’s point on last nights national ITV , The Agenda, that the impartiality of one of the judges was significantly in doubt, perhaps even to the extent of standing down.

    5 It seems that EU Law is being used, argued successful to overrule or curtail the Sovereignty of Parliament, which is why I voted out in both referendums. (But what does dose this thick as a brick plebe know.) A sovereignty which is worked through by the Executive, the Cabinet. And it’s worth remembering that a party is voted into power, not a Prime Minister, So far my respect for Teresa May is growing. Millar quotes the operation of the executive as “dictatorial” democracy. Which planet is she living on?

    6 Not so for Sturgeon, who even today is seeking leverage from the High Court ruling, although Scottish Parliament has far more, perhaps unarguable “locus standi” than the original High Court Applicant.

    7 If the judgment is not overruled will parliament vote against the majority of those who voted out.? Disingenuously, they say not, but by turning it into a pigs ear, dogs dinner, they effectively will and it will be a case of justice denied (will of the people) as again another legal maxim which is all too readily ignored is, “Justice delayed is justice denied.”

    8 The irony is that non of this process is possible within the EU and the sense that sovereignty of parliament is being used against the sovereignty of parliament, to curtail, tie the hands of the Cabinet which Millar describes as being “dictatorial.”

    9 We are moving towards one of the biggest legal cases in the history of the British Constitution.

    10 While slightly off topic, be not really, could I suggest David that you read a great article in the New Statesman 4-10 Nov by John Gray: The Closing of the Liberal Mind.

    The opening sentence “All that seemed solid in liberalism is melting into air.”
    “The liberal pageant is fading…

    He talks about liberalism of both labour and conservatives and the SNP would be enveloped by the scope of the argument.

    Corbynite Labour is “a very modern kind of liberal narcissism.”

    “The overriding importance given to rights – a selective reading of them, at any rate- is one of the marks of the new liberalism.”

    It traces the movement away from Judeo- Christian Heritage (he Being an atheist!) and brings in globalisation and de-globalisation, global free trade, movement of people.

    These are just some tasty snippets. There is much that is quotable. Can’t recall the last time I bought the magazine, but bought it solely for the article. Marvellous.

    11 Thank you for your links and ending with scripture. Our LORD is Sovereign and in control. He reigns.

  4. Triggering Article 50 affects laws over which Parliament, and Parliament alone, has sovereignty. We had a civil war on this point and Parliament won. The decision really isn’t surprising given the concessions made by the government in their case. What will be interesting is if Parliament votes against leaving (bear in mind the Lords can only delay it by a year if the Commons disagrees).

    This is about due process rather than frivolity.

    1. James you will forgive me for saying this but it is somewhat naïve to think that this is about process. When Parliament decided to grant a referendum on whether we should be in the EU or not, of course they knew that it would affect laws over which they had sovereignty. In their sovereignty they decided to give us that choice. it’s done! This is in fact all about the elites trying to stop the democratic will of the people expressed by the largest vote in British history. it is naïve in the extreme, to think that those who are prepared to hand over parliamentary sovereignty to the EU, have now become champions of it!

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