The right-wing press in the UK, led by the Daily Mail – the newspaper that supported the Nazis in the early 1930s – is foaming at the mouth. Like the evil fictional character Dr Fu Manchu, the beer-swilling populist Nigel Farage warned that the world would hear from him again – and it has. The usual sophistry of swivel-eyed Tory members of parliament like John Redwood and Jacob Rees-Mogg has gone into high gear (the less said about Ian Duncan Smith the better). All of this means that Gina Miller, who stimulated the London High Court ruling that the executive branch of the British government cannot formally start BREXIT without Parliament’s explicit approval, must have got it right. Well done, Gina! Britain is not a ‘democracy’, mindlessly acting on the so-called ‘will of the people’ (aka the ‘will of the people with the resources to manipulate public opinion’) as expressed in slender simple majorities on matters of the gravest importance. Rather, like other mature democracies, it is a ‘liberal-democracy’; that is, a polity with a constitution that guards against the ‘tyranny of the majority’ and also wisely gives greater weight to the opinions of the … er … wise. Now, as Polly Toynbee says, it’s time for the custodians of Britain’s representative (not direct) democracy to stand up and be counted. If they remain confused on the point, let them re-read Burke’s famous address to the electors of Bristol in 1774.
There have been many media assessments of the significance of the appointment of Mr B. Johnson as Britain’s new foreign secretary but this, I believe, is the best. In the coming weeks I shall be re-thinking a few parts of the chapter on foreign ministries in my textbook.
The distinguished Cambridge international and constitutional lawyer, Philip Allott, has here added his authority to the growing pressure on the British government and Parliament to feel less cornered by the Brexit vote. Reminding his readers that the exercise of legal powers by all public authorities has limits because they affect the legal situation of anyone to whom they apply, and that the rule of law is a fundamental principle of a liberal-democracy, he argues that a government decision to leave the EU could well be judged illegal and any attempt to activate this by triggering Article 50 of the Lisbon Treaty therefore invalid. This is because ‘UK withdrawal from the EU would affect the legal situation of every person in the UK, and the legal situation of many other people elsewhere.’ And these consequences – for many highly damaging, he implies – would follow a decision based on (1) a referendum designed not to promote the public interest but only ‘the particular interest of a political party’ (a reference to David Cameron’s desire chiefly to use it to resolve the long and bitter division in the Tory Party over Europe); and on (2) only ‘a bare majority’ of those taking part in it, despite the vast importance of the issue at stake – hence a decision that was ‘arbitrary and unreasonable and disproportionate, in the legal sense of those words.’ The last point is reinforced by the denial of a vote in the referendum both to the millions of Britons living abroad for more than 15 years and to foreign nationals permanently resident in the UK, some for decades. (One of the best liked and community-minded members of my own neighbourhood is the Danish widow of an Englishman who was unable to vote in the referendum because for personal reasons she had not taken out British citizenship, and yet has been permanently resident in the UK for 55 years.) The possibility of a successful judicial review of the Brexit decision is another reason for the EU to ease its pressure on the British government quickly to trigger Article 50 of the Lisbon Treaty. Hurray for Professor Allott, I say.
For other legal views, see BBC News, ‘Can the Law stop Brexit?’ 30 June 2016
In what is probably still the best known short work on diplomacy, Diplomacy, first published on the eve of the Second World War, revised twice afterwards, reprinted many times, and translated into numerous languages, the sagacious scholar-diplomat Harold Nicolson wrote that ‘The basis of good negotiation is moral influence and that influence is founded on seven specific diplomatic virtues’; these, he continued, notably omitting clowning ability, are:
Nicolson deliberately placed truthfulness and precision first and second in importance, but in effect suggested the rest were third equal. Which – if any – of these boxes does Boris Johnson tick? In light of the answers, would he be fit to lead Britain’s negotiations with the EU in the event of becoming prime minister? The answer has to be such a deafening ‘NO’ that I wouldn’t be bothering to write this piece were it not for the fact that it’s pouring with rain here in Leicester and I can’t get into my garden.
However many of the third-order attributes Johnson might possess (and queries about modesty and loyalty would probably produce gales of laughter in private as well as public quarters), he falls flat on his face on the essential first two. No-one with half a brain will negotiate with an individual with a reputation for having no respect for the truth, and I’m afraid that this was Mr Johnson’s reputation well before the recent referendum campaign; see the article in the New York Times as well as in the predictably more hostile Guardian. As for precision in the use of language, his name is so often linked with the word ‘bluster’ (45,100 hits when googled) that one need explore the point no further. In short, the idea that Boris Johnson could lead a successful British negotiation with the EU is laughable. The Tory Party would, therefore, be quite mad to elect him in place of David Cameron.
BREAKING NEWS 30 June: Sanity has prevailed! Mr Johnson – the leader of the Leave campaign and hot favourite to be Britain’s next prime minister – has withdrawn from the leadership race. It can safely be assumed that he will not be taking a holiday anywhere in Europe.
Legally, the sovereign British Parliament – which is overwhelmingly Europhile – can ignore the EU referendum result because it is only advisory, not mandatory. This was spelled out authoritatively in the middle of June by the Financial Times legal columnist David Allen Green here; picked up and publicised by the Labour MP for Tottenham, David Lammy, soon after the result was declared; and shortly afterwards fleshed out in trenchant fashion by Geoffrey Robertson QC. The conventional wisdom, of course, is that for Parliament to exercise its constitutional right to this end is not practical politics: members of parliament as a class are held in contempt, the prime minister is a lame duck, ‘the people’ have spoken, and there would be ‘uproar’ if they were to be ignored; that is, there would be howls of rage from the unscrupulous right-wing press and much brolly-brandishing in the shires and Union Jack-waving in UKIP enclaves. However, some lost causes are worth fighting for, especially when the stakes are high – and occasionally they have a surprising outcome, particularly when politics are as fluid as they are now. Here are some reasons for urging Parliament to act courageously – although not immediately.
- The Leave leaders – the discredited journalist and entertainer, Boris Johnson, and failed Education Minister, Michael Gove – are evidently clueless as to what to do next, among the many reasons for which is presumably their well-advertised contempt for expert advice
- Their campaign platform was demonstrably mendacious
- Young people were much more for Remain than the old, and their futures have been put in jeopardy; the young are also quite good at creating uproar themselves
- The break-up of the United Kingdom is once more a real threat, as Scotland – which voted overwhelmingly Remain – refuses to be dragged out of the EU by those south of the border, and trouble looms in Northern Ireland again
- The barons of the EU have no choice but to make BREXIT as painful for the British as possible in order to discourage ‘Leavers’ in other member states
- The UK economy is already showing predictable signs of stress
- Net immigration into the UK will not drop significantly
- The enormous publicity given to the hideous murder of Jo Cox has highlighted the fact that the great majority of Members of Parliament are decent, hard-working, and relatively poorly-rewarded public servants – and should therefore be taken seriously
- Above all, the Referendum vote was extremely close (51.9 to leave, 48.1 to remain).
As all of this begins to sink in over the next month or so, it is likely that a significant proportion of Leave voters will begin to realise that they have made a mistake, and turn their wrath on those who misled them rather than on a Parliament acting to save us all via the hallowed principle of representative – rather than direct, aka media-manipulable – democracy. In short, there is a reasonable chance that throwing out the Referendum result will not, after all, be tantamount to political suicide for those MPs responsible for it. This is the more likely to be true if by, say, October, both Conservative and Labour parties have got leaders who command more respect outside as well as inside Parliament than can be said of their present chiefs; and if, as Brian Barder argues with predictable cogency, the new prime minister has been able to secure a mandate in a general election for remaining in the EU in the light of adverse terms for withdrawal coming to light only during ‘informal consultations’ with Brussels and therefore unavailable at the time of the 23 June Referendum (see also the statement by Cabinet Minister Jeremy Hunt on 28 June). Meanwhile, the important thing, of course, is for the lame-duck Cameron government not to allow itself to be prematurely muscled into invoking Article 50 of the Lisbon Treaty – not forgetting the additional need to ensure that Mr B. Johnson (aka ‘Bojo the Clown’) never becomes prime minister. It’s good to know that celebrity chef Jamie Oliver has got his number. (In response to this, Johnson has probably already got his circus crew working on a video showing the putative leader emerging triumphantly through the crust of an enormous pie, the crust consisting of a fractured EU flag.)