THERESA May’s nightmare is only beginning. Brexit will quickly move from mere chaos to a constitutional, political and economic catastrophe. The High Court victory over Theresa May’s decision to use the royal prerogative and to reassert the primacy of Parliament is a major setback for Brexit.
The Government does not have the power to trigger Article 50 and this may lead to the whole process being subject to parliamentary scrutiny. Terrified by the prospect of the people or parliament being able to derail or rethink this monumental piece of self-harm, the Prime Minister has tried to close down any prospect of effective accountability, hiding behind the vacuous mantra of “Brexit means Brexit” and “there will be no running commentary”.
The High Court judgment, if it survives the appeal process, could be the beginning of the end for Brexit.
Brexit will diminish Britain’s role and credibility in the world. In contrast, Scotland has a chance to enhance its role, build up goodwill in Europe and ensure that Scotland exercises a “triple lock” on the outcome of this pointless exercise: a vote by the Government, Parliament and people of Scotland. This is no more nor less than the 62/38 per cent vote to remain deserves.
Scotland – including all of its political parties – should lead the battle to force Westminster to demand scrutiny and oversight of the triggering of Article 50 and the repeal of the 1972 European Communities Act. In addition to ongoing committee and parliamentary monitoring there is a case for a second referendum or a vote in Parliament on the outcome of the negotiations with the EU.
The LibDems have signed up for this. Brexit is an empty box: it would be a constitutional outrage and a contempt for good governance if the people or Parliament didn’t have the final say when this sorry process gets to an end-point and the negotiations are complete.
Sadly, at least for now, the leader of the Labour Party and his shadow chancellor remain ambivalent to the idea of remaining in the single market and will have to show more passion and commitment to the European cause.
There is a real possibility that Brexit, imposed by the treacherous behaviour of a large number of Theresa May’s Cabinet, may never happen. Scotland should be in the forefront of this struggle.
There are powerful ethical, constitutional and political arguments against Westminster being able to force Scotland, and indeed Northern Ireland, out of the EU despite the democratic wishes of the people in both nations.
The UK Government may argue that the referendum was about a vote of the whole of the UK but post-devolution the realpolitik is very different. Theresa May’s ignorance of the idea of a four-nation Union is obvious and underlines the key weakness of the post-devolution era: Scotland has won more and more powers but no real power to challenge or to change the absolute sovereignty of Westminster, the centralised force that dominates and permeates every critical decision and the elective dictatorship of the ruling party at Westminster, first commented on by Lord Hailsham.
The question of a “Constitution” is crucial, especially in light of the fact that Westminster will simply not concede any real authority. Scotland needs to counter this intransigence by building on the work of Elmer Bulmer and his model constitution for Scotland.
The key element of this is the sovereignty of the people, not of parliament or government.
Regardless of Scotland’s destiny – independence, federalism or home rule – the priority for Scotland is now a constitution, whose formation should no longer be delayed. A new constitutional convention should get to work as soon as possible. Brexit is the consequence of a prime minister and a parliamentary majority making up the rules as they go along and with little regard for the rights and aspirations of each part of the Union.
Scotland should no longer tolerate the ramshackle reality of an unwritten constitution. This is 2016, not 1716.
Theresa May’s anxieties have been deepened by the fear that she could share the fate of other Tory prime ministers. David Cameron’s and John Major’s careers were shredded by the fanatics and the delusional, the very same people who have now been given Cabinet responsibilities as a reward for their treachery and political assaults on our democracy and the British people. The Prime Minister needs to decide whose side she is on.
Her fear of the future is understandable when you consider the hapless performance of her senior Brexiteers, who haven’t a clue about a short or long-term response to this deepening crisis: to be fair, no government of any political persuasion would be able to deal with Brexit. In this regard we should continue to contest and reject the notion that one solution to Brexit fits all of the UK. This is absurd. Westminster Tories can’t be trusted to deliver for the UK, never mind Scotland. The spirit and substance of the devolution years will have no lasting benefit or meaning if the Westminster government continues to pretend that the 1998 Scotland Act was a mere adjustment to the power of one parliament rather the opportunity to empower the new parliament and assemblies in Scotland, Wales and Northern Ireland.
Maybe Theresa May has a better grasp on post-Brexit reality than her actions would suggest. Have the cheap patriots like Fox, Patel and Johnson been handed poisoned chalices in their Cabinet responsibilities so when they fail they can be replaced by sane colleagues? Is her “Hard” Brexit scenario a front to create a genuine revolt in Parliament and in the country so she can blame us and her ungrateful parliamentary colleagues for killing off Brexit?
For all of us there is another potentially intractable problem to solve. How do we square a decision made in good faith, albeit under the most poisonous and deceitful circumstances in post-war politics, by the people in a referendum, with the possibility that the whole idea may be reworked and dismantled? The empty box idea is a possible solution unless every leave voter wanted out regardless of the consequences.
One thing is clear: Brexit makes no sense for Scotland. There are compelling reasons for us to argue that Scotland’s role in the UK must be respected. This is not about narrow nationalism or bloody-mindedness, this is about the absolute right of a modern nation to assert its legitimate demands about what kind of country it wants to be: and being out of Europe isn’t one of them.
For Theresa May, so soon after Halloween, her nightmare looks likely to continue. I am sure that, of the many horrors that lie ahead, she doesn’t want to become the first prime minister since 1707 to lose Scotland. But her party’s obsession with Europe and the incalculable consequences of Brexit are certainly shortening the odds.
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