The UK is having the very fundamentals of its democracy challenged by shambolic politicians and journalists — this is about far more than Brexit.


Source: Independent Newspaper

The reaction to the recent court ruling about triggering Article 50 was a low point in this already very low point of British politics.

The problem with this issue, unlike many of the more accessible and amusing recent scandals and let downs, is that the real danger lies in subtle readings of law and political protocol. Some of the media and political commentary picked up on this, but on the whole the severity of the situation has not really been talked about enough.

What was so bad?

1. The political response to the court ruling

2. The media response to the court ruling

3. The political response to the media response to the court ruling

To get it out in the open, the court did not block Brexit. What they were asked to do was clarify whether, according to the law, The Government had to ask Parliament to vote on triggering Article 50, or whether The Government could do this directly using Royal Prerogative — i.e. overriding Parliament and acting unilaterally as a Government.

They concluded that, again in accordance with the law not just their whim, an act of Parliament (joining the EU) can only be overturned (leaving the EU) by another act of Parliament. Consequently, Article 50, as it will take certain legal rights away from British people and will reverse a previous act of Parliament, has to be voted on by Parliament.

They were not judging the merits or otherwise of Brexit, and are not blocking or in anyway obstructing it. They were just commenting on the correct legal process to begin Brexit.

This was construed by the right wing, pro-Brexit media as judges interfering with the political process and blocking Brexit. The headlines were astonishing, even by the already extremely low standards of this section of the media.

Judges in the UK have a very special place in our democracy. They are independent, and when analysing law in this way simply look at facts, a bit like mathematicians looking at equations. They are dry, un-emotional, and amongst the most intelligent people in the country. Unlike other countries, judges are not political appointees, but are elevated through a very competitive legal profession, based on merit. A lot of people start law school, very few make it to become a Judge. As a group, they take their legal and political independence very seriously. They are there to stop our country becoming a dictatorship, and as we’ve seen in Poland recently, when you meddle with that independence, the whole democratic structure crumbles.

What does it matter who triggers Article 50?

First you must understand that the UK is a representative democracy. This means that we elect MPs to represent us in Parliament. Their job is to do the work we don’t want to do in order to become experts in issues on our behalf. That is, by the way, why we are not ruled by referenda. Big decisions are studied, debated, and challenged by our representatives in Parliament on our behalf.

Secondly, you have to remember that the Government is not the same as Parliament. Also the Conservative Party is not the same as the Government. The Prime Minister and her Cabinet are all members of Parliament, whether it be the House of Commons or House of Lords. The Government is elected to govern, and to be scrutinised on behalf of the people by Parliament, who are the people’s representatives. Laws are proposed by the Government, scrutinised by the House of Commons, then passed to the House of Lords, who critique them and pass them back to the Commons to be passed into Law.

This division means that the Prime Minister and her Cabinet cannot just make laws or undo them. If it was possible, as May has suggested, for the Government to bring around major constitutional and legal change to the country without scrutiny by Parliament, then in effect the country is open to becoming a dictatorship. I’m not saying it would, but it could, whereas currently it can’t.

This system has evolved incrementally since the Magna Carta, through civil wars, rebellions, and foreign wars. It is the result of hundreds of years of political and legal thinking and is incredibly robust. It is very hard for someone to take over the UK. In a nutshell, there is nobody in the UK political or legal system who is not scrutinised by somebody else, who is independent of that person being scrutinised. Everyone is answerable to someone else, all of whom have enough power to stop that next person. It’s clever, and you wouldn’t be able to make it up from scratch.

More here from the Independent on Theresa May trying to overturn the outcome of the Civil War:

“The defeat of King Charles I’s royalist army by parliament’s forces in the Civil War — and his subsequent execution in 1649 — ultimately led to the acceptance that democratic power was supreme, with the 1689 Bill of Rights requiring any changes to the law to be agreed by the Commons and Lords.”

So back to the Article 50 ruling. The Judges ruled that the Prime Minister and her Government cannot overturn a law passed by Parliament without going back to Parliament. This is really simple stuff, and really important. It is Democracy.

The media and politicians who criticised the Judges firstly fail to understand how our legal system works, secondly don’t understand how our democracy works, and thirdly are arguing in favour of a scenario that would see an (in this case unelected) Prime Minister able to overturn a law passed by Parliament without having to ask Parliament for their opinion. If she could do that with the European Communities Act (1972), then she could also use Royal Prerogative to overturn other laws, indeed any laws. It would set a precedent that whoever is in Government could overturn laws passed by the representatives of the people without having any scrutiny and without the checks and balances we’ve developed over centuries that are designed to stop us becoming a dictatorship.

It would only take overturning a few small laws, relating to who manages the police, or how elections are run, and we could find ourselves looking more like Russia. Parliament and the Judiciary are there to stop any Government from doing this, and that is why the UK managed not to become a dictatorship in a period last century when many other countries did.

Ironically, the pro-Brexit people who are criticising the Judges are the ones who want Brexit so we take back our Sovereignty — which in the case of the UK is the Sovereignty of Parliament, no the Government. They also want us to stop having our laws meddled with by un-elected political leaders (like Mrs May). I would argue, in fact, that nothing is more Sovereign, or more British than the quality and independence of our Judges.

So back to my three points:

1. The political response to the court ruling

2. The media response to the court ruling

3. The political response to the media response to the court ruling

The political response was shocking because it showed that MPs and some Ministers do not understand the basics of how our democratic and legal system works. Perhaps all new MPs should have to have a day or two crash course explaining the British Parliamentary system before they are allowed to be part of it?

The way May and her Government want to use Royal Prerogative to trigger Article 50 shows a reckless and also mad frenzied approach to a massive political issue. They want to rush it through without deferring to the collective wisdom of the Houses of Commons and Lords, one assumes because they are worried that both Houses may reign them in. It is the duty of Parliament to reign in enthusiastic Governments, to make sure they are acting in the best interest of the country rather than themselves.

Their argument that the Judges were blocking the Will of the People is particularly stupid. The Will of the People in the UK is ultimately a General Election, not a non-binding referendum. The people have spoken through this referendum, true, but that voice does not trump the voice of Parliament, as elected by the People. Parliament is Sovereign. It may, and probably will, chose to respect the voice of the people as expressed in the referendum, but that does not change the balance of where power lies, and who can do what.

The media response set a new low. Firstly, it was just factually incorrect to say the Judges were blocking Brexit. It was stupid, irresponsible, and dangerous to call into question the independence of the Judiciary from the political process. Stupid because it just isn’t true, irresponsible because they frivolously challenged one of the important fundamentals to our democracy — lay into the politicians, yes, but not the Judges, who are above this sort of thing. It was dangerous because it starts a dialogue that anyone who knows anything about history or politics would know opens the way towards dictatorship.

The political response to the media response was most shocking. The fact that the Justice Minister had to be asked by the Bar Council to defend the Judges, and only then did so in the most half-baked manner, demonstrates that she is an intellectual light-weight who should never be in her job. She is responsible for the Law in our country, and defending the independence of the Judiciary, but clearly does not understand the seriousness of her own role, or of this situation. It was embarrassing watching the Bar Council, made up of the countries brightest people, having to prompt a dumb fly-by-night politician to do her job properly.

The Prime Minister should have taken a step back from her politics, and reacted with the gravitas demanded of her position, and should have made explicitly clear that whilst she does not agree with the opinion of the Judges, she respects the way the opinion was reached. Whilst she is right, always, to defend the independence of the media to say whatever they want, she should have rebuked the most inflammatory of the papers for their factual inaccuracy and for challenging the independence of the Judiciary. She should have said very clearly for all to hear that she has complete confidence in the Judiciary and their independence. She fell very short of what is expected of a Prime Minister.

The insanity that is Brexit — like some sort of frenzy that has addled the minds of certain politicians and journalists — must not be allowed to spread into undermining the Sovereignty of our political machine, or the stability of our legal system. Politicians have a responsibility to uphold these things: Parliament, the rule of Law, and social decency. What happened to One Nation Conservatism, where the Tories claimed to rule on behalf of everyone?

Of course, this all just points to the dreadful state of our politics today. We have a Government of dullards obsessed with a single issue. The higher quality Conservative politicians have walked way or been kicked aside because they are not willing to jump on a single-issue bandwagon. We still have no effective Opposition because Labour are also too distracted by ideological issues rather than doing their job of keeping the Government in check. As with the Tories, too many of the high quality, intelligent Labour MPs have shied away from the front benches, not wanting to be part of the madness of Corbynism.

At the extreme we have utter idiots like the UKIP Leadership candidate, Suzanne Evans, who told the BBC that “judges could be “subject to some kind of democratic control” following the High Court’s decision” (as if they are not already!). Such statements show a total failure to understand how the country works at any level, and is worrying coming from someone even on the fringes of rational politics.

A few of the remaining intelligent Conservative and Labour politicians still in the game have all stood up and defended the Judiciary. They have done so in a manner befitting a representative of the People and defender of our Democracy, but those voices have been very few in number, and drowned out by hysterical shouting of half hearted mumbling from the rest of our embarrassment of a political class.

This is not about whether Brexit is a good or bad idea, it is far more important and is something where Remain and Leave people should stand (and shout) together. It is about the very basics of our democracy, a set of systems that have been around, and hopefully will be around, far longer than this current single issue that troubles us on both sides of the argument. We should all be complaining with one voice when our press fall below the standards required for a healthy democracy, and we should all be united in challenging our elected politicians to retain standards, and to quit when they are not up to the job. Democracy is a fragile and fleeting thing that needs to be nurtured and cared for.

We, the people, need to mobilise and think what we can do. Re-posting and complaining on Facebook is not enough. I made a formal complaint about some of the headlines. You can do so here. Complain to your MP, complain about false reporting, take the time to read about what is really happening and how our country works. These are bad times, and demoralising as it is, we do need to watch over our country until some competent politicians return to both Government and Opposition.