Media-political hysteria over Brexit High Court ruling not justified

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Friday's Daily Mail front page, dubbing three judges as 'enemies of the people' for ruling parliament must debate Article 50. [Twitter]

The sensationalist press coverage of the High Court ruling on Brexit is not justified by what actually happened and is likely to happen, says Denis MacShane.

Denis MacShane is the former Minister of Europe and author of Brexit: How Britain Left Europe, published by IB Tauris.

It may well turn out to be a Pyrrhic victory for those who would like to see the softest of Brexits – or indeed no Brexit at all, as the small majority in favour of amputating Britain from Europe slowly evaporates in the face of bad economic news.

Prime Minister Theresa May should have been honest with parliament from day one.  Seeking to create a new doctrine of executive supremacy which overrides Britain’s representative parliamentary system was foolish.  But the one thing we know about May is that when she is in a hole she stops digging. At the Home Office, she quickly dumped stupid policies like sending out vans with posters urging people to inform on any illegal immigrants they came across.


The scheme was unworkable and un-British, as we are not a nation of informants, and was openly laughed at. So she quietly closed it down.

Article 50 is a sequence of negotiations and the first part of the negotiations will be to decide what will be negotiated. It is not a question of Britain presenting a series of demands and the EU presenting its list of counter-proposals. For a start, there are three Europes at the table – the European Commission, the European Council representing the 27 national government and the European Parliament.

Each will be taking a different position as the talks unfold and the British government moulds its demands to shifting economic news and possible changes in public opinion, as the full impact of Brexit sinks in. Today’s BMG opinion poll shows that 45% now back remaining in the EU compared to 43% for leave with 12% don’t knows. This reverses the June 23 plebiscite result.

For example, trade with Europe will not be part of the Article 50 negotiations. The EU trade commissioner and every head of government has said, “First the UK quits the EU. Then we talk trade.” And those talks can last years.

It is not clear the thorny issue of EU citizens visiting, working or residing in Britain and vice-versa for Brits in Europe, can be settled. That depends on any decision that London takes to begin imposing visas or quotas on European citizens.  Such discrimination against voters in 27 friendly countries will be seen as a hostile act, penalising them and the UK government would be well advised to keep this issue parked as one for intense study and leave any legislative proposals until the UK is out of the EU.

So the idea that the prime minister or David Davis can come to the Commons and spell out in by-law detail each and every aspect of what they want by Brexit is not realistic. Article 50 is neither a manifesto still less a Queen’s Speech. It is dialectic in its purest form. It may define what Brexit means –  a full total rupture and a Fortress Britain pulling up the drawbridge or any one of a dozen other options like the relationship between Canada and the United States or as the veteran Eurosceptic Christopher Brooker keeps insisting a bespoke membership of the European Economic Area to stop the British “economy falling off the cliff” as he writes in his Sunday Telegraph columns.

Consultative vs Implement

Unfortunately for both Leavers and Remainers, Brexit did not mean Brexit when parliament decided on the plebiscite in 2015. The parliamentary briefing for the MPs’ decision made clear that the referendum was “consultative”. But the brochure the government sent to every home stated: “This is your decision and the government will implement it.”

So it is too facile to say MPs and unelected Lords some of whom have bought their right to be lawmakers can stop Brexit now. If May puts a simple resolution of the House of Commons approving the government’s decision to begin Article 50 negotiation it is hard to see it not finding a majority. Most Remain MPs will not want to defy the plebiscite vote even if they don’t like it. But equally, in 12 or 24 or 30 months public opinion and politics may be in a very different place.

So the excessive excitement that yesterday’s decision somehow stops or derails Brexit needs to be parked. If May gets her Commons vote, she will be in a stronger position as she would then have parliamentary backing and the current hue and cry she is ignoring Parliament would be silenced. So everyone should play this long other than the extreme Tory-UKIP isolationists who want a total rupture of all legal relations with Europe which permit trade, commerce, and cooperation on security and the environment.

May has sensibly dropped her incantation that Brexit means Brexit. It is what kind of Brexit that now should concern us. The High Court ruling may yet be disavowed by the Supreme Court though the Nazi-era style attack on judges by some of the more rabid press may actually now stiffen the resolve of Supreme Court judges not to be bullied by newspapers owned by men who do not pay a penny of tax in Britain.

Article 50 is just a beginning. The endgame is far, far away.

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