Some reflections on the Article 50 ruling

Some reflections on the Article 50 ruling

The High Court’s ruling on whether triggering Article 50 needs parliamentary approval has opened up not so much a can of worms, but perhaps rather one of those comedy tins where snakes fly out.

Let’s start with the court itself, whose decision has yet of course to survive contact with higher judiciary. One aspect the judges apparently fail to appreciate is that parliamentary process already allows MPs the opportunity to vote. Labour had not one but two Opposition Day debates as recently as Wednesday – and rather than call for a vote on the EU, they picked the topics of pharmacies, and police officer safety. On 12th July, they did use their allotted time for a Brexit-related debate, but focused on issues relating to Energy and the Environment: this concluded with a vote which they lost.

There are other parliamentary mechanisms as well, which includes the Early Day Motion (EDM) used to challenge Royal Prerogative powers. There are a number of other means of holding ministers to account I remember well from days advising the Eurosceptic rebels in the 1990s, such as laying amendments, but I have no intention of doing all the homework for Anna Soubry. There are of course wider issues over government time. I particularly await with interest the take of parliamentary guru Lord Lisvane on all of this.

There is a further irony. Article 50 exists in some degree thanks to the output of Sir John (now Lord) Kerr, who was Secretary General of the Convention on the Future of Europe. Its introduction generated a switch whose mere flicking was seen by Convention Eurosceptics at the time as an issue of Royal Prerogative. But had it not been introduced, then I would suggest that any government that did not include advocating Brexit as part of its manifesto would have had to enact it by Act of Parliament. So if Remainers want to blame anyone for their current state of affairs, it should be Lord Kerr.

If the attitude of the judges has been peculiar, the seeming hypocrisy of some of the supporters of this legal challenge is more breath-taking than an Alaskan stroll. The role of Parliament within the EU system is that of third order influence at best, able only to affect Whitehall’s additional gold plating, and rarely given the time to affect that. Even the augmented red card veto that came out of David Cameron’s renegotiation was based on a near-mythical prospect. One is left with the impression of campaigners seeking to stymie a referendum result by any available means, not seeking to better our democracy.

This is also where a number of Eurosceptics appear to be missing a key point. Their outrage on the tactics is just; yet the underlying principles accidentally deployed by Remainers are also valid. As Leave campaigners from Tony Benn to Enoch Powell agreed back in 1975, the key was ever that of restoring democratic power to our representatives in Parliament. Statutory Instruments and Royal Prerogative have since then been increasingly abused by ministers and civil servants – out of convenience rather than malice given the expanding machinery of trade rules – but the consequence has been to make it nigh impossible for MPs to properly monitor draft law.

So as a veteran of EU processes, I welcome the court’s ruling. Whether MPs make the most of the principles it reawakens, or abuse the difference between plebiscite and referendum like other Euro-elites, is however a separate and significant matter of concern.