PM’S TOXIC BREXIT BATTLE

The PM’s Brexit battle with Parliament is the most toxic constitutional crisis since Charles I. So, warns the former Lord Chancellor, tread carefully or MPs may soon be shouting...

BREXIT turned our politics on its head. But it didn’t change the fundamentals of our constitution. As the Lord Chief Justice and his fellow judges spelt out in words of one syllable on Thursday, one of those fundamentals is that the executive – in this case the Government led by Theresa May – cannot take away the rights of the people simply by issuing an executive decree.

It doesn’t matter where those rights come from – common law, statute, foreign treaties incorporated into our local law: if you have a legal right, it can only be taken away by an Act of Parliament. That is why the courts have ruled that the Government cannot invoke Article 50 to trigger Britain’s exit from the European Union without first putting it to the vote in Parliament.

Both sides in the court case agreed that when the Article 50 notice expires, everybody in the UK would lose all their rights which came from the EU, and which had been incorporated into UK law and given to individuals by the European Communities Act 1972.

Mrs May has asserted in court, in Parliament and to the public her entitlement – alone and without the authority of Parliament – to set these rights to one side by the exercise of the Royal prerogative in serving a notice bringing the treaties to an end.

This is an assertion of the sort that Charles I used to make, and for which he lost his head.

The Civil War and then the Glorious Revolution, which unseated James II and enthroned William and Mary, were fought over installing a monarchy – the executive of its day – subject to parliamentary sovereignty.

The Bill of Rights passed in the aftermath of the revolution expressly forbade the executive from suspending the laws or dispensing with the law’s effect by Royal decree.

If the executive can do what it likes with people’s rights, then the rule of law is lost. The losers in elections have no protection from what the executive can do. They have no protection from an elected dictatorship. Nobody suggested, when Clement Attlee won a huge landslide in 1945, that that gave him the right to decree there should be an NHS or a nationalised steel industry, or to repeal the Tory legislation he didn’t like. Only Parliament could do that.

Winning the EU referendum doesn’t set the constitution aside. The politicians must act upon the result of the referendum, but this was not a vote to set aside parliamentary democracy: it was an instruction to Parliament to leave the EU. It was not an invitation to the Prime Minister to ignore the checks and balances in our constitution.

Yet this is what Mrs May has done. She said the rights given by the European Communities Act 1972 should be understood to be subject to the executive’s entitlement to bring the treaties to an end. Roughly translated, that means: ‘What I say goes.’

The court gave that argument short shrift. It pointed out that if her argument was right, it would effectively nullify the fundamental principle of Parliament that it – and it alone – has the power to remove rights through Acts of Parliament, which have protected and promoted the entitlements and freedoms of our citizens for more than 500 years.

She didn’t dare assert to the court that the referendum allowed her to override the fundamental constitutional protections individuals have.

Her lawyers expressly said it didn’t give her that power, and the court went out of its way in the judgment to say her lawyers were right.

She can appeal. It’s an important case and the Supreme Court is ready to lay on a full court of all 11 Supreme Court Justices. She has said she will appeal, and in so doing she is making a grave error of judgment.

The Prime Minister should not be challenging such a sacred tenet of our constitution: she should be upholding, not challenging, the principle that only Parliament has the power to take away our rights. This is the key issue: not whether the referendum and the will of the people will be respected or not. It will and, if it’s not, that will be down to politicians, not the judges.

WHATEVER her lawyers may be saying about her prospects of success in the Supreme Court, Mrs May, like all sensible leaders when faced with such monumental constitutional litigation, should ask herself what’s the right result for the country: a PM who is subject to the protection of parliamentary control, or one who wields limitless power, untrammelled and unquestioned? There is only one answer. She should be subject to parliamentary control.

And that places the responsibility for giving effect to the will of the people where it should lie – with Parliament. It’s not for the courts to interpret the result of a referendum. As A.V. Dicey, the most authoritative writer on the constitution, said: ‘Judges know nothing of the will of the people save to the extent it is expressed through Acts of Parliament.’

If the court judgment stands, then the only authority which will allow her to serve a notice under Article 50 is an Act of Parliament which has passed through both Houses. A motion or resolution of the Commons will not do. It has to be an Act.

If Parliament refuses to pass such an Act, it would be defying the will of the people expressed in the referendum, and it would inevitably lead to a General Election. Having taken ownership of the delivery of Brexit as the central purpose of her premiership, if the Commons refuses to allow her to proceed to deliver she has no option but to appeal to the people to give her a Commons that will give her the means to deliver.

There will be legitimate issues as the Bill goes through the Commons as to what information Parliament should be given before Article 50 is triggered: leeway in fixing the date, and what safeguards should be in place before the EU rights are lost, ensuring, for example, people do not lose the entitlements to equal pay guaranteed by the EU but not explicit in UK legislation.

Although the Lords can consider and revise the Bill as it goes through Parliament, the points of principle must be determined by the Commons.

On this of all Bills, whatever many Lords may fear from the referendum result, the Lords must defer to the Commons.

The responsibility of the Prime Minister is to do her best to keep the country together. A constitutional row fought through the courts, with the Government arguing for positions that would shame most monarchs since 1688, shows a conspicuous absence of leadership on her part.

My advice to Mrs May is to reflect. Read the judgment. Ask yourself whether you (not your lawyers) disagree with the way the court has expressed our constitutional principles.

Ask yourself whether you want to be the PM who argued that you could ignore Parliament, depriving every citizen in this country of their constitutional rights, without bothering to ask MPs whether they were willing, as I believe they are, to act upon the demands of the people.

I know what your answer would have been on July 12, the day before you became PM.

Any appeal would be a grave error of judgment