10 November 2016
Enemies Of The People?
What Mrs May needs to do now
By John Watson
For those who thought that there was a limit to the amount of nonsense that could be talked over a few days, the reaction to the Divisional Court’s decision in the Article 50 case must come as a shock. Let’s start with some of the usual sources. Iain Duncan Smith, ex work and pensions supremo, obliged with “You now have the High Court telling Government and Parliament how to go about their business. This is unprecedented.” And Douglas Carswell, more euphonious but equally mindless, with “These judges are politicians without accountability.” There is lots more along the same lines from the politicians and the press, all mixing fatuity with bile in varying measures, as if they were participants in some cookery competition to produce the nastiest and most misleading result. There are plenty of strong entries and it is hard to pick a winner. On balance I think that the headline in The Telegraph (which should know better) “The judges versus the people” was narrowly trumped for first prize by The Daily Mail (which obviously wouldn’t) referring to the Judges as “Enemies of the people.” That has a pleasingly Orwellian flavour to it. Well, we all know that newspapers have had to cut back on reporters. Presumably much of their copy is now written by the cleaning staff. Poor dears.
Reading this twaddle, you would think that the judges had strode to power through a sea of blood rather than examined the European Communities Act for indications as to whether, unusually for an act which affects private rights, it is capable of being repealed by the Crown without an Act of Parliament. The Divisional Court held that an Act of Parliament was required and, as even the Government side now seem doubtful about whether this will be reversed on appeal to the Supreme Court, the betting must be that they are right. If that turns out to be the case, there will be egg on a number of faces.
First up must be the newspapers and politicians who said that this was a political decision. It is clear that it was not. The judgement, which is some 32 pages long, sets out the principles laid down in the past and then applies them, the Government’s argument that treaties and their removal do not have to be approved by parliament being defeated by the general principle that the Crown cannot take away the rights of the individual without Parliamentary authority. It is something of a mystery how anyone who has read it could really think that it was other than a straightforward attempt to distil and apply the authorities. How did so many of our politicians and journalists end up misleading the public? Were they too lazy to read the decisions or did they decide that a bit of “misleading” was in order to boost circulation figures? Either way they have met their match. If you have any sense you don’t criticise lawyers without getting your facts right. The legal establishment has erupted in the Judges’ defence, bringing in its train the Bishop of Leeds, the Lord Chancellor, and the more responsible politicians. Lord Patten has called for the resignation of Communities Secretary Sajid Javid for referring to the decision as an attempt to thwart the will of the British people. We won’t get that, of course, but an apology might be in order. Whether Mr Javid backs off publicly or tries to bludgeon on through will be a good test of his quality.
The second candidate for egg must be the government. How didn’t they see this one coming and factor it into their plans? Unless the Supreme Court reverses its decision, they are going to need an Act of Parliament, so nothing will have been gained from their visit to the Courts. There are going to be plenty of battles along the road to Brexit. The Government needs to distinguish between the ones it cannot afford to lose and the ones which are not worth fighting. So, where will things stand if the Supreme Court upholds the Divisional Court’s decision? What are the unpleasant consequences of a Parliamentary vote which they have expended so much political capital in trying to avoid?
It clearly isn’t the risk that the Remainers in Parliament will hold up the giving of the Article 50 notice. Why would they? Everyone knows that, short of some enormous upheaval in the EU itself, that notice will have to be given. Who would want to be the man or woman fingered for having thwarted it and perhaps damaged Britain’s chance of getting the best possible deal?No, that clearly isn’t the problem. What is next then?
There has been talk of MPs or Peers trying to insert conditions into the authorising Bill, putting in red lines on the negotiating position. It’s hard to see how that would work. The notice has to be given before serious negotiations can begin and, once that has happened, there are only two possible outcomes. The first is that there is a Withdrawal Agreement between the UK and the European Council (such an agreement has to be approved by a qualifying majority of member states and the European Parliament). The second is that the two-year notice period expires without a Withdrawal Agreement in which case we leave automatically. There is no room for red lines here. The only question is what can be agreed with the EU. Surely that can be explained to both Houses.
So what are we left with? As part of any debate (and regardless of the decision on Article 50, the Government is already committed to a debate on its negotiating stance) the Government is likely to have to set out a shopping list of the things which it would like to negotiate and, perhaps, to give some indication of what it might be able to offer in return. It will be a difficult list to write. Put in too little and you get criticism for not being ambitious enough. David Cameron’s negotiations with the EU prior to the referendum have been the subject of that. Put in too much and you are exposed to brickbats when you fail to achieve many of the things you suggested.
How then to steer a course between Scylla and Charybdis? The whirlpool of lack of ambition on the left: the rock of disappointed promises on the right. There is only one way. While Mrs May will need to give a sufficient steer as to her approach to satisfy the public, she should keep the list short and vague. That will mean explaining to the country why she does not want to make specific promises at this point. Judging from the way in which the Divisional Court’s judgement has been received, the tone of the inevitable arguments about the conduct of negotiations will be specious and dishonest. If she is to ride over the trouble makers, Mrs May needs to get the country firmly behind her. Like it or not, she will have her day in Parliament. She must embrace it as an opportunity to sell her brand of quiet competence to the nation.
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