Michael Heseltine, the veteran Tory politician and reformist, said – just a day after the EU Referendum – that Brexit would provoke the “greatest constitutional crisis in modern times”.
He wasn’t wrong – as recent events are demonstrating. The idea of a quick, ‘Hard Brexit’ (which sounds like a sexual euphemism, but isn’t) has probably gone out of the window with the highly contested judicial verdict that is trying to limit Theresa May’s ability to trigger Article 50 without parliamentary approval.
Now you might welcome that – or you might be suspicious about it; depending on which camp you lean towards. But what should be clear, regardless of personal opinion, is that the High Court made a judgement in accordance with constitutional law.
And it has to be said that the Hard Brexit enthusiasts and Daily Mail reading crowd are developing worrying symptoms of mob rule mentality and disregard for law and for democratic norms. Unsurprisingly, the same right-wing newspapers – principally The Daily Mail, The Daily Express and Murdoch and The Sun – that carefully nurtured anti-foreigner, anti-refugee, anti-Europe sentiment among its readerships for so long, are now agitating their populist mob against the judiciary, parliament and law.
The language is a little troubling: describing the judges in a front-page headline as ‘ENEMIES OF THE PEOPLE’ is more like something you’d expect to find in Russia or in Mussolini’s Italy, while Nigel Farage’s ominous talk that “a betrayal is near” is a little reminiscent of Hitler and Nazi rhetoric in the early days, even though he may have some justification for being non-plussed by the verdict. This kind of hardline nationalist language is familiar in the Brexit Media and even more so among its adherents. Witness, for example, Jo Cox’s murderer in June declaring ‘Death to all traitors’ when asked his name in court: and witness too all of the Far Right people on social media celebrating Cox’s death as the death of a ‘leftist traitor’ and the like and calling for other ‘traitors’ to be killed.
Not that the High Court judges’ decision to force Theresa May’s government to go to parliament before implementing Article 50 isn’t possibly a maneuver to block, delay or water down ‘Brexit’: it could be that.
But it is also a ruling that is in perfect keeping with British Constitutional Law – and this should’ve been clear to everyone who voted for Brexit.
This – the role of parliament in approving the terms of Brexit – was clear from even before the EU Referendum: and if people didn’t realise that, it’s down to their own lack of research or understanding and also down to the bad job done by Brexit campaigners and the Leave campaign earlier in the year.
A comprehensive explanation on the UK Constitutional Law site made this clear back in June, in an article titled ‘What Would Happen if the Government Unlawfully Issued an Article 50 Notification without Parliamentary Approval?‘
This isn’t some trick that has been pulled months after the vote by some nefarious network of pro-EU figures (though there is probably some of that going on here too), but something that was always going to be a problem inherent in the referendum. It also a simple fact that the referendum put to the British people didn’t ask them what kind of Brexit they favored, but only asked if they wanted to leave the EU or remain in it. ‘Brexit Means Brexit’ doesn’t mean anything, no matter how many times it is repeated – ‘Brexit’ isn’t even a real word.
Therefore, the terms of Britain’s withdrawal from the EU and the type of relationship a future Britain is to have with Europe is something parliament is rightly demanding to have some say on.
The High Court’s decision essentially makes it unlawful for the ‘executive’ – i.e: the government – to terminate Britain’s part in an international treaty without the consent of parliament. There is no suggestion in this that the Referendum result will be rendered invalid or that Brexit will be blocked: simply that parliament has a right to scrutinise whatever the government’s Brexit plan will be and have a say in the details.
That is democracy. That’s British democracy – the very British democracy that so many Brexit campaigners were calling for in their argument against the EU.
By demonising the judges or calling them ‘enemies of the people’, the Brexit Media and its followers are essentially advocating that a government be allowed to bypass democracy and democratic processes. The supreme irony of this will be lost on no one – as one of the central arguments for Brexit was that the EU was ‘undemocratic’ and Britain should get back its ‘sovereignty’.
And yet people are now saying parliament – our democratically elected representatives – should be cut out and a sitting government (led by a Prime Minister that hasn’t won an election) should be allowed to use, essentially, the ‘royal prerogative’ – in essence, calling on the power of the Queen to override the powers of the elected parliament.
This led one judge to suggest that Theresa May was trying to “reverse the result of the English Civil War” by seeking to use the power of the Queen to put the referendum result into effect by invoking Article 50.
The defeat of Charles I and his royalist army by parliamentary forces was – however ugly and complicated the course of events may have been – a victory for the supremacy of democratic power over royal power: essentially protecting the citizens from the whims or undemocratic policies of a monarch whose actions may have been against the national interest.
And from 1689 onward, any changes to the law had to be agreed by the Houses of Commons and Lords.
Of course, historically speaking, we could counter-argue that Cromwell himself later castrated what he viewed as a corrupt parliament and assumed power for himself – which just illustrates that history is complicated and you can twist it either way to suit your argument.
But the point is to highlight how serious and dangerous a constitutional crisis the UK could be facing: when a Prime Minister is having to rely on royal power and a desire to bypass parliament, when we have a divided nation, divided union and divided parliament, and when it takes High Court judges to remind the government of parliament’s rights and we have a constitutional expert citing the English Civil War, there is clearly serious trouble ahead.
All of this language is very important, particularly the right-wing assault on the judiciary: because an independent judiciary that arbitrates the law, along with all of our constitutional safeguards, is our protection – as citizens – from any government that might seek to do things against our interests or our rights. In this instance, we happen to be talking about triggering Article 50 and leaving the EU: but on another day it might be about surveillance law, arrest without trial, a declaration of Martial Law, or any number of other things.
The High Court judges are not there to be pro Brexit or pro Remain – but to objectively and dispassionately interpret constitutional law. That is all they’ve done here.
There is also a complete lack of understanding on the part of Brexiters that leaving the EU isn’t just about leaving the EU: there are a huge number of laws that are going to be effected or even nullified – including EU human rights laws, environmental laws, workers rights, etc. And all of this requires careful scrutiny from parliament and by the judiciary. There is an almost child-like naivety in people who expect an immediate ‘Brexit’ with no discussion or scrutiny – and not even just from the ‘all foreigners out’ crowd, but from UKIP members and some right-wing Conservative MPs, who seem to be displaying an odd disregard for democratic and legal processes and essentially advocating a dictatorship legitimized by mob rule.
So calls from extreme right-wingers, UKIP members and Daily Mail readers to ‘sack the judges’ are actually early warning signs that the hard-line nationalist elements of the Brexit movement (which doesn’t represent the entire Brexit movement, but is a troubling part of it) could have a grim vision for what Britain should be like outside of the EU – a vision that, frankly, has various tell-tale elements of a right-wing, nationalist coup.
No independent judiciary. Subversion of constitutional law. Bypassing of parliament and of democratic processes. And branding any sources of inconvenient rulings or views – even entirely legally legitimate ones – as ‘traitors’ or ‘enemies of the people’.
Which, a tad unsettlingly, is precisely what Far Right lunatics and ultra-nationalists – including her murderer – were calling Labor MP Jo Cox back in June.
And all of this being on the basis of what they keep calling “opposition to the will of the British people”.
Which, while we’re here, is a phrase I’ve been taking exception to for months. The pro-Leave vote was 52% – by no stretch of the imagination can that be classed in casual, blanket terms as “the will of the British people”. At best, it is the will of just over half of the people: but actually it’s only really the “will” of around 37% of “the British people”, when you factor in how many people didn’t vote.
This phrase also completely ignores Scotland and Ireland, as if their populations don’t count as “British people”.
In regard to the toilet-paper rag known as The Daily Mail (which, worth remembering, used to support fascism and the Nazis in the past – example above) and its deliberately inflammatory headline, I came across a comment on Legal Cheek article by a freelance journalist who used to work for the Romanian section of the BBC World Service, which I think captures some of the ominous character of this low-grade journalism and the reaction it is intended to provoke from its readers.
He writes, ‘Great Britain has, from many points of view, an image of excellency in the world, a country where tradition is held in very high esteem, with strong and reliable institutions, the Judiciary being one of them. Seeing its image tarnished in this appalling way it won’t do any favors to your country in the world. I think that even from a third word country you would hardly expect the High Court to be called “Enemies of the People”. I sincerely hope somebody in UK will wake up to the magnitude of the offense. About the term itself, Daily Mail should do some readings in history, to understand the meaning of the expression. I used to work, at the beginning of 1990s for the main opposition party at that time, staunchly anti-communist, whose leaders, without exaggeration, have gathered between themselves hundreds of years in communist prisons. All of them have been sentenced by the so called Tribunals of the people, set up under the soviet occupation, straight after the war, under the accusation, ENEMIES OF THE PEOPLE. Everyone from Eastern Europe who reads this knows very well what I am talking about…’
For the record, I was neither properly pro EU nor was I able to identify with the pro Brexit movement either: I saw problems and negatives on both sides. But my biggest problem was that Brexit was a farce being led by idiots and, more importantly, that it was overly dominated by Far Right extremists, racists, toilet-paper newspapers, the Murdoch Empire, and showed far too many signs of worrying tendencies.
In seeking out some validation of my own position – that of someone who essentially isn’t passionately pro EU, but also doesn’t trust Brexit – the best I found was Yanis Varoufakis, the Greek economist, academic and former Greek Minister of Finance – and a man with no reason to overly love the EU. He said, prior to the referendum, that Brexit would cause the whole EU edifice to crumble and fall into the hands of right-wingers and xenophobes in a scenario he describes as the “postmodern 1930s.”
In regard to the very serious rise of the Far Right and the parallel risk of the European Union ‘disintegrating’, Varoufakis argues that the Left has to learn the lessons of 1929, form a popular front “with other democrats” and prevent the meltdown.
In regard to the dangerous ‘nationalist reflux’, he warns that a retreat or reversion to the nation state will only benefit the Far Right and can “never benefit the Left.”
Former MI5 agent and whistleblower David Shayler suggested, back in February, that the Globalist interests are in fact trying to create a Europe-wide Civil War: if true, this could be both along racial lines and along the lines of Nationalists and the Far Right versus the EU-centered establishment – and, in that scenario, the Left and the liberals and progressives all over Europe, including the UK, will mostly have little choice but to side with the EU and the so-called ‘Liberal Elite’ (not my term, but the commonly used one).
But this probably gets to the heart of why people like me view both sides of the equation with deep suspicion.