Brexit…A Never-Ending story

The High Court has ruled that the government does not have the power to trigger Article 50 - to start formal exit negotiations with the EU - without the approval of Parliament. What parliamentary approval means is unclear because the High Court did not specify.  So it could mean full legislation or a resolution, either by the House of Commons or from both houses. A resolution could be quicker and simpler, allowing the government to seek a very narrow resolution from MPs that grants approval for the triggering of Article 50. But using a narrow resolution could also be challenged in the courts, whereas full legislation should be watertight. Full legislation would be more complicated and time-consuming because it would require debates in the House of Commons and the House of Lords, allowing amendments to be tabled that could, for instance, limit the government's freedom in negotiations about the UK’s future relationship with the EU. 

In effect, the legal judgement—that will be appealed to the Supreme Court (but could it then be appealed to the European Court of Justice?)—reiterated the principle  laid down in 1610 during James I-Vi’s reign that the prerogative powers of the Crown—today exercised by the Prime Minister—do not have precedence over the powers of the legislature.  In the Case of Proclamations Sir Edward Coke stated ’the King hath no prerogative, but that which the law of the land allows him’  while the Bill of Rights 1688 confirmed this by stating that suspending and dispensing with ‘laws or the exercise of laws by regall authoritie as it hath been assumed and exercised of late is illegall’.  Parliamentary sovereignty has also been recognised in many leading cases as the highest constitutional authority.  The case centred round the argument that prerogative powers could not be used to invoke Article 50 because it would result in abolition of rights established in the 1972 European Communities Act without the legislation being repealed by Parliament.

Campaigners who brought the case insist it was about ‘process not politics’ and the High Court made clear that there’s was not a political judgement but the decision has huge implications, not just on the timing but on the terms of Brexit.  It lays Parliament open to criticism that it is trying to subvert the will of the people expressed in the referendum…ah, well the referendum was only advisory and not binding on Parliament…so we’ve listened to what you say but we have to act in the ‘national interest’ and the national interest dictates that we don’t really leave the EU.  It could also lead to a constitutional crisis between the elected Commons where most MPS will probably support Brexit—the question is not whether but what form it should take—and the unelected Lords that was largely in favour of Remain.   The potential for this increases the likelihood that the Prime Minister will call a General Election early next year.  There are certain advantages in doing so with the polls giving the Conservatives a clear victory as well as the potential for a Labour meltdown.  Assuming that she won, the Prime Minister could put invoking Article 50 into the manifesto that would head off problems with getting the necessary legislation through the Lords (it can’t vote against legislation contained in the manifesto). 

What happens now is far from clear.  An appeal will be held over five days in early December and if, as I suspect will be the case, what is an unequivocal High Court decision is upheld, the government will need to introduce legislation in early January 2017 (or even before Christmas) to seek parliamentary approval to invoke Article 50.  The High Court stated that once invoked Article 50 could not be revoked…Lord Kerr, the author of Article 50, had stated before the judgement that the process could be stopped if both parties agreed.  Though some MPs will certainly vote against invoking Article 50, having voted for a referendum by 6:1, it seems probable that any legislation will pass the Commons with relative ease so long as MPs are given some information about what the government’s plans are; the House of Lords is more problematic and prolonged resistance might result in the use of the Parliament Act to get the bill through.  If this was the case the planned timetable for leaving the EU would be thrown into question with Article 50 not invoked until much later in the year or even 2018.

Nigel Farage said that the ruling could be the start of a ‘deliberate wilful attempt’ to ‘betray voters’ and an attempt to ‘water down what people had voted for’.  Whether this is right or not, what we have seen today is a reassertion of the authority of the political elite at the expense of the popular will.  While we may still leave the EU, the decision about what ‘leaving the EU’ means will in practice l be what the political establishment decides and I am certain it will use the nebulous notion of ‘in the national interest’ to justify their decision.

Trial without Retribution

The attack on the Eureka Stockade marked the dénouement of digger protests that began with the first protest meeting at Buninyong on 25 August 1851 when news arrived of a license fee being levied on all miners. The Geelong Advertiser’s reporter Alfred Clarke who attended the meeting wrote:

 

…there has not been a more gross attempt at injustice since the days of Wat Tyler…It is a solemn protest of labour against oppression, an outburst of light, reason and right against the infliction of an effete objectionable Royal claim…It is taxation without representation. Tonight for the first time since Australia rose from the bosom of the ocean, were men strong in their sense of right, lifting up a protest against an impending wrong, and protesting against the Government. Let the Government beware! [1]

 

This early agitation was followed by a number of protest movements, beginning with the formation of a Miners’ Association at Mount Alexander (Castlemaine) in December 1851. There were protests at the Ovens and at Bendigo, a Colonial Reform Association was formed in Melbourne in 1853 and in Bendigo the Red Ribbon agitation was led by the Anti-Gold License Association. The Bendigo petition was couched in Chartist terms. Protest meetings were held at Ballarat and a Chartist newspaper, the Diggers Advocate, was founded in Melbourne in October 1853 by Henry Holyoake and George Black, with H. R. Nicholls as an assistant editor.[2] Its editorials called the Victorian government ‘an arbitrary despotism…which denied the right to assist in making the laws under which they [the diggers] lived’. [3] On 3 November 1853, the Argus reported the formation of a Gold Diggers’ Association. The volatility of the goldfields made it difficult to organise the diggers and these political movements were short-lived.

 

The arrival of Sir Charles Hotham in July 1854 saw the popular movement re-emerge in Ballarat. Initially admired, he soon ordered that the diggers must pay their licenses and that his police and military should conduct regular inspections, if necessary, at the point of a bayonet. The political climate in Victoria changed dramatically. A growing sense of injustice at the failure of the courts to deliver fair verdicts and the persistent cancer of the gold license led to the formation of the Ballarat Reform League in early November. The failure of the local goldfield administration to defuse the situation and growing digger militancy led to a direct attack on the authority of the Crown with the construction of the Stockade at Eureka and the swearing of an oath before the Southern Cross. The authorities acted swiftly and with brutality on 3 December 1854 but the initial euphoria at their success quickly evaporated once the tragic scale of the ‘massacre’ became known. Charles Evans commented:

 

It is a dark indelible strain on a British Government – a deed which can be fitly placed side by side with the treacheries and cold blooded cruelties of Austria & Russia. [4]

 

With over 100 diggers in custody, the question was what would Hotham do next?

In the immediate aftermath of the attack on Eureka Stockade, public opinion was divided. Hotham’s initial call for support in maintaining law and order was well received and was supported by the Legislative Council, the city of Melbourne and its councillors and by bankers, merchants and landowners. On 7 December, the ‘squatting community’ pledged their support for any measure Hotham decided would further ‘the maintenance of law and the preservation of the community from social disorganisation’. [5] However, the government’s response to Eureka and its subsequent actions led to growing opposition. The Argus was concerned by a ‘most formidable spirit of disaffection’ with the government and the open assertion of ‘republican principles’ among the people. [6] Resolutions passed at a public meeting in Melbourne on 6 December, while they did not directly support the diggers, expressed concerns about the government’s use of excessive military force at Ballarat. [7] Its first resolution stated:

 

That the constitutional agitation at Ballaarat has assumed its present form in consequence of the coercion of a military force, professedly imported for the defence of the colony against foreign aggression; and that matters would not have been precipitated to their present issue, but for the harsh and imprudent recemmencement of digger-hunting during a period of excitement.

 

While the second made further criticisms of the government:

 

That the citizens of Melbourne, while disapproving of the physical resistance offered by the diggers to the Government, cannot, without betraying the interests of liberty, lend their support to the measures of the Government till they have a guarantee that steps will at once be taken to place the colony in general and the goldfields in particular on such a footing that a military despotism will no longer be required.

 

Instead of attempting to defuse the situation and despite the recommendation of the Gold Fields Commission on 10 January 1855, Hotham exacerbated matters by refusing an amnesty for those involved in the rebellion, while granting it to officials. Digger disillusion with the government’s behaviour over Eureka and specifically with the decision to try men for treason was evident across the goldfields.

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[1] Argus, 30 August 1851, p. 4, cit, Stackpoole, Harry, Gold at Ballarat: The Ballarat East goldfield, its discovery and development, (Lowden), 1971, p. 17.

[2] Clark, C. M. H., History of Australia, Vol. 4, (Melbourne University Press), 1978, p. 105, Pickering, Paul A., ‘“Glimpses of Eternal Truth”: Chartism, Poetry and the Young H. R. Nicholls’, Labour History, No. 70, (May 1996), pp. 53-70.

[3] Diggers Advocate, 1 April 1854.

[4] SLV, MS 13518, Charles Evans, Diary, 3 December 1854, p. 138.

[5] ‘The Legislative Council’, Argus, 8 December 1854, pp. 4-5.

[6] ‘State of Feeling in Victoria’, Argus, 6 January 1855, p. 5.

[7] ‘Meeting for the Protection of Constitutional Liberty’, Argus, 7 December 1854, p. 5.