'Enemy of the people' nonsense betrays Brexiteers' ignorance

It used to be that “murmuring a judge” was an offence in Scotland, rather like contempt of court. Maybe it wasn't such a bad law after all. The pressure on those judges when they sit in December, from the Government and the press, will be intense and unprecedented in British history. They are already being “outed” in the press. I wouldn’t like to be sitting in their wigs.

The Brexiteers’ fury at the Article 50 court ruling was a theatre of the absurd. They’d said they wanted to leave the European Union in order to restore the rule of UK law the sovereignty of Parliament. That's exactly what they are getting. The High Court judges looked at the pre-democratic doctrine of Royal Prerogative, under which the Prime Minister sought to bypass Parliament, and said quite rightly that it was out of order. Ours is a parliamentary democracy in which our rights as citizens and the laws of the land are decided by the elected Parliament. Only in the very narrow case of international treaty negotiation is the PM allowed free reign.

Any secondary school pupil knows this. They are told about our famously unwritten constitution, about Dicey and Bagehot, and the “untrammelled” sovereignty of Parliament that bends to no outside body or person. Perhaps the Prime Minister really is ignorant of the foundation of the British constitution, but it seems unlikely. I wrote some weeks ago that the Brexit affair was beginning to look like an attempted rightwing coup without the bullets and I’m gratified that the High Court judges seem to agree.

May had sought to change the UK constitution by establishing a new doctrine of direct, plebiscite democracy in which the media and referendums replace Parliament as the source of legal authority. Fortunately, the judges blew the whistle on this subversion. This is not the courts placing themselves above the people, but putting Parliament back in its proper place. Which does not, of course, mean that MPs can reverse Brexit, unless there is an unequivocal demand for a repeat referendum by the voters.

The Government won a majority in a general election, which gives it the right to govern but not the right to dictate. There should never have been any question of bypassing parliament on the most important issue facing the country in half a century. There should have been a White Paper – as was initially promised – outlining the Government's broad objectives, which Parliament should then have endorsed. This would actually have strengthened the hand of the Government’s negotiators in Brussels because it would have the explicit authority of Parliament for the case being presented.

This is exactly what happened in 1991 when John Major held a two-day Commons debate and vote before starting the negotiations that led to the Maastricht Treaty, creating the European Union. He had his work cut out because the Eurosceptics he called “b*****ds” – the very ones now complaining about judicial interference – tried to scupper the negotiations. The Maastricht rebels argued that Parliament was relinquishing sovereignty to an outside body: the European Union. Now they want to cut Parliament out of taking that sovereignty back home.

Of course, following democratic procedure makes it more difficult for May. She will have to explain what the Government wants to achieve, and win a vote in Parliament. Well, that’s just tough; to govern is to choose and four months on, no-one in the Government seems to have a clue what Brexit actually means.

Does it mean Britain seeks splendid isolation behind what is called World Trade Organisation status, which means 10 per cent tariffs on goods exported to Europe; or does Britain remain in the single market, like Norway, which is not in the EU but accepts free movement; or again should Britain seek access to the customs union alone like Turkey; or just the European Free Trade Area like Switzerland? Is Britain going to retain the European Arrest Warrant, employment rights or EU environmental regulations? In the absence of any guidance from the Government, there is no-one left to fill in the blanks other than Parliament.

The suspicion is that the Government has no coherent plan and is simply making it up as it goes along. Brexit ministers like David Davis and Liam Fox seem to have as little grasp of the nature of international trading relations in the 21st century as they have about the UK constitution. They seem to believe that if they shout loud enough at foreigners, they will get some kind of preferential treatment. That German car manufacturers will ensure there is no tariff wall erected against British goods. But the chaotic culmination of the Canadian/EU Trade Agreement, CETA, which was nearly scuppered by the Belgian region of Wallonia after seven years of hard negotiation, shows how difficult this process is going to be. And CETA doesn’t even cover free trade in services.

The Government insists that it would damage Britain’s national interest were the PM to “show her hand" in the negotiations with Brussels, but it will have to show its hand soon anyway. The UK’s position on Article 50 will immediately be discussed by MEPs in the European Parliament. It would be a bizarre if Brussels is given the right to deliberate on Britain's position before the UK Parliament is allowed to. Almost as bizarre as the suggestion that if the UK Supreme Court rules again against the Government on Article 50, it could appeal to the European Court of Justice in Luxembourg.

The High Court ruling also has profound implications for Scotland. As this column has argued, Scottish citizens have enjoyed an array of rights, from employment laws to protection of bathing water, which emanate from Brussels. The primacy of EU legislation is enshrined in the 1998 Scotland Act itself. This means that Holyrood will have to give its consent to Article 50, which will remove these rights, in exactly the same way as Westminster has to endorse the repeal of the European Communities Act.

But this also poses challenges for the Scottish Government. There is a real possibility now that Nicola Sturgeon might get her way and that Scotland may remain in the single European market as part of the UK. It would then be very difficult to argue that there should be a second independence referendum if the First Minister's own stated negotiating objectives have been met. If Theresa May could only take her Brexit blinkers off, she might see that soft Brexit could help reunite the United Kingdom. But in her fury at having the Government’s incompetence and lack of strategy exposed in Parliament, the Prime Minister sees only red mist.

There is widespread speculation in Westminster, that the PM will throw her toys out of the pram and call a general election. But of course, she can't. Thanks to the Fixed Term Parliament Act passed by her predecessor, prime ministers no longer have the power to call elections whenever they like. She would have to engineer a vote of no confidence in herself, which would be strangely fitting given her conduct of the Brexit process thus far.

But assuming she did engineer her own impeachment, there would still be problems. Most Tory MPs are Remainers and a general election would expose deep rifts in the Tory party over the way forward. Indeed, in the general election campaign the PM would have to do exactly what she is failing to do in Parliament right now: explain clearly what her objectives are in the Article 50 negotiations. That could turn the general election into what is effectively a referendum on hard or soft Brexit.

The Tories would presumably win – but it may not be the walkover pollsters are predicting. Voters may be angry at being forced to go through an unnecessary election at a time of national crisis. A carefully co-ordinated campaign by opposition parties, including Nicola Sturgeon, to focus attention on the Brexit boorach would put May under intense pressure in the televised debates. It's not inconceivable that at pro-Europe coalition, including rebel Tories, might actually win. That means there is even a remote possibility that Jeremy Corbyn could become Prime Minister. That really would put the tin hat on it.