The Supreme Court judgment of January 24 offers a moment to take stock of the consequences of last June’s referendum on British membership of the EU.
As a landowner whose manors once belonged to Sir Edward Coke, the great Chief Justice whose decision in the Case of Proclamations (1610) was perhaps the most important authority cited, and having read at Oxford A. V. Dicey’s Law of the Constitution (my copy still has a letter from Dicey written to a cousin inside), I would have said I took a ‘conservative’ view of the British Constitution, were it not that the Conservative Party, paradoxically, seems most likely to undo it.
Britain’s accession to the EEC was a fully parliamentary process, dependent on the European Communities Act 1972. As a consequence of that Act, British citizens acquired rights in European law which would automatically be lost, without further parliamentary scrutiny and without compensation, two years after giving notice under Article 50 of the Lisbon Treaty. Those rights exercisable within the UK are intrinsically replicable by statute in British law, but those exercisable in other member states (essentially the ‘four freedoms’, the right to stand and vote for the European Parliament or to seek a reference to the Court of Justice of the EU) could not be saved by subsequent British legislation.
The government planned to trigger Article 50 without first going to Parliament, leaving Parliament to pick up the pieces later. It was a litigant from Guyana who believed in the Constitution. The Supreme Court having insisted that rights cannot be removed in this way, the government has presented Parliament with a Bill of two clauses to authorise the Prime Minister to trigger Article 50, avoiding any prior parliamentary discussion, right by right, of what citizens will lose. Parliament is being urged to accept the referendum itself as the primary decision.
In 1972, no such procedure had ever been used in Britain. Wilson’s referendum of 1975 was designed to overcome opposition in his own party and was heavily advertised as ‘consultative’. Nevertheless, it is plain that the use of referendums can only, in reality, and especially in the hands of the present government, emasculate the sovereignty of the Crown in Parliament and damage the correct scrutiny of legislation. There have been two further consequences.
Ministerial responsibility requires that a minister should support policy or resign. The pro-Brexit ministers should have left the government last February, just as the pro-Remain ministers should have resigned with Cameron in June. The principle is the same as for a vote of confidence in Parliament. In consequence, there is no intellectual integrity to policy: the Conservative Party has (quite deliberately) sought power without responsibility.
Scotland and Northern Ireland voted solidly to remain in the EU. The Supreme Court found that the Scottish Parliament and Northern Ireland Assembly did not have a right to assent to triggering Article 50. In terms of their creation by statute,that is strictly correct. Nevertheless, both Scotland (in 1707) and Ireland (in 1800) entered into a union of parliaments with England, and it is clear that once government by referendum takes the place of full parliamentary scrutiny, each now needs a new Act of Union. As our European citizenship fails, so does our British citizenship.
In pursuit of ‘free trade’, the UK will withdraw from the EU single market, surely a more complete free-trade zone than it can replicate elsewhere
All these considerations underline the fragility of Britain’s ‘unwritten’ Constitution, and the need for its formal codification. However, let us also consider the European and global dimensions.
The short 20th century (1914-1989) discredited three European models: the Concert of Europe (based on the largely pre-national principles of the Congress of Vienna), the nation state as a polity self-sufficient in defence, economy and environment, and the Europe of western and eastern blocs. Nationalism and populism destroyed the first two models, economic and social reality the third. With the Iron Curtain fell the last barrier to globalisation.
The EU offers a coherent and cooperative model (whatever the problems of the Eurozone) in which past failures can be avoided. In a single market, the producer can trade his goods, the investor his capital and the worker his labour. In the interests both of efficiency and social justice, the Marxist polarity between capital and labour is deconstructed.
Globally, it is fundamental to recognise that, in the context of the physical world, ecosystems (biogeographical regions), mankind, languages and economies are all primary phenomena, without intrinsic political boundaries. Law and natural justice enable the correct management (stewardship) of primary phenomena within states (and even in stateless societies) and internationally. The supranational dimension is as essential, and legitimate, as the national, but a secure geopolitical context is required for the successful management of transboundary economic, social and environmental issues. It is not the role of states to externalise costs or to create or perpetuate distortions. Despite May, we are also citizens of the world.
As a land manager and farmer, I recognise many areas where a common European policy is desirable. Animal and plant health, including the prevention and treatment of disease, is clearly one. Land management policy should be coherent within biogeographical regions. Water management should be integrated at catchment level. Biodiversity policy (especially for migratory species) should be consistent across Europe to be effective. An integrated climate policy (including for energy and for emissions trading) is essential. Moreover, British farmers need comparable support policies to compete with those from the continent. At the same time, their casual, seasonal labour comes mostly from elsewhere in the EU. The agricultural and landowning organisations are full of ideas for a British agricultural policy: they may well be writing letters to Father Christmas.
British policy is little more than a rhetoric of contradictions. In pursuit of ‘free trade’, the UK will withdraw from the EU single market, surely a more complete free-trade zone than it can replicate elsewhere. A ‘truly global’ Britain requires ‘control’ of borders. It is as if the Mayflower had never sailed, or the East India Company had never been. An empire on which, within the memory of people still alive, the sun never set, was created by the free movement of (British) people.
Where will the UK ‘sit’ in international negotiations such as WTO, or the UN Climate Change Convention? With Europe? Or with the US and (perhaps) Canada? On climate policy, Trump can only damage everyone (despite the complete clarity of American climate science, as represented by National Oceanic and Atmospheric Administration). May, of course, has to improvise all policy and urgently: how little she has to offer Trump (no military adventures, she warned) was shown by her speed in offering a state visit.
Brexit, thus driven, will be an exercise in systemic fatuity, consuming a political generation and with gratuitous imposition of costs at random across the private sector. A difficult divorce will only fuel the corrosive myth of Britain that lay at the heart of the referendum.
And yet, a strong and successful EU has never been more important, not least to the UK. One lesson to be drawn is that it must be firmly anchored in citizenship, not opposed to national citizenship but complementary. Verhofstadt’s proposal that British subjects should be able to opt for an additional European citizenship as part of Brexit is both generous and statesmanlike.
Michael John Sayer was a delegate to the UN Framework Convention on Climate Change for the European Landowners Organisation.