Richard Ritchie was an aide to Enoch Powell, and is his former archivist.
At times like these, Britain desperately needs the constitutional and political expertise, combined with the oratory, of an Enoch Powell. If he were alive today, there is no doubt that he would have much to say upon our current discontents, and in particular upon the judgment of the Supreme Court which is now awaited.
Fortunately, however, we have his past speeches for guidance – and it is sometimes remarkable how the arguments of the past resurrect themselves in almost identical form. In re-reading some of the major speeches which he delivered between 1970 and 1980, one passage gave me particular pleasure. It relates to the Labour Government’s ‘re-negotiation’ of 1975:
“How did Jenkins and Callaghan and Shirley Williams come to get themselves elected by promising the British people a choice, if they knew all the time that Britain would be hopelessly handicapped outside the Common Market. Or did they discover all this in the last six months?”
For Jenkins, Callaghan and Williams substitute Cameron, Osborne and Hammond.
Powell’s detestation of Britain’s membership of what is now the European Union is not in doubt, and of course he would have campaigned for Brexit. But his view on Article 50, and how it should be invoked, is not so straight-forward. It is interesting that in all his speeches post-1957, I could find no mention of the word ‘referendum’ until June 1970, when he declared himself a firm opponent in the following words:
“I say at once that I am no supporter of a referendum, least of all on this sort of subject (i.e. Britain’s proposed membership of the Common Market). Out of many reasons, I only mention two. First, it is inconsistent with the responsibility of government to Parliament and the electorate. If, on a subject of this importance, the Government were to propose one course and a referendum chose the other, then unless the Government promptly resigned, they would thereafter be able to say, whatever happened: “Well, don’t blame us, it is no fault of ours; we wanted to do one thing, but you decided to do the other; so, ladies and gentlemen, you have only yourselves to blame”. The result of that would be, quite literally, irresponsible government.
Secondly, there are many people who believe – though I am not one of them, as I shall presently show – that the decision about Britain entering the Common Market ought to depend on what are called the “terms” which can be negotiated. Obviously, from this point of view, it is not possible to have a decision, yes or no, in advance. On the other hand, once the terms had been negotiated and worked out in detail, then as with a treaty or any other international instrument, they could not be rejected unless the government itself were defeated. Only close and continuous debate, in Parliament and the country, during the progress of the negotiations could ensure that the “terms” which were accepted were such as to satisfy opinion.”
Once the 1975 referendum had taken place and, despite Powell’s protestations, the country had voted to remain a member of the Common Market, his past hostility to referenda became convenient. In 1972, he had said that “if the words could ever be used ‘Parliament must do this’, or ‘Parliament cannot do this’, it would be the sign that both our liberties and our independence had lost their guarantee”. Thus, once the referendum was over, he constantly reiterated the Labour Government’s assurance that continued membership of Britain after the referendum will still depend “on the continuing assent of Parliament”. He said this most emphatically in October 1977:
“The referendum had no constitutional significance, and all are agreed that Parliament (which is in the last resort the people’s servant) has full and undiminished power and right to repeal or modify as it may see fit the European Communities of Act 1972 on which British membership rests.”
If this were Powell’s view concerning a referendum his side had lost, he would presumably have said the same of a referendum which he had won – and to that extent, he would not be disputing the rights of Kenneth Clarke, Nick Clegg and so on to use every Parliamentary option open to them to reverse or modify the referendum result. This would be consistent with his belief that a referendum “is itself a contradiction of the nature and authority of Parliament”.
Whether, however, he would say the same of the Court of Appeal or Supreme Court of Justice is a different matter. This is an aspect which he wasn’t called upon to deal with specifically, and I have found it surprisingly difficult to find him speaking anywhere of the Crown Prerogative. My guess, however, is that he would have argued that this is a matter for Parliament, with no need to resort to the judiciary. In 1978, he did say the following:
“The treaties do not oust the right of Parliament, nor are they morally binding upon Parliament, because they were made in the knowledge and understanding that only ‘the continuing assent of Parliament,’ day by day and month by month until it is withdrawn, is the basis of Britain’s membership of the E.E.C.”
But Powell also said this, too:
“I am not suggesting that we should thereupon instantly break all our pre-existing engagements with the other states of the Community. I am not even suggesting that those which we are determined to alter should be broken without negotiation and without consideration to the position of our former partners. Least of all am I suggesting that we should break the law of the Community so long as the relevant part or section of it remains the law of the United Kingdom…”
From all this, one might conclude that Powell would have had some sympathy with those wishing to compel the Government to seek Parliamentary approval before invoking Article 50. But it’s not straightforward. Powell believed that membership of the European Union was, in itself, inconsistent with Parliamentary sovereignty. As he said, Parliament is “in the last resort, the people’s servant.” He would therefore have opposed any judicial interference in the process to recover this sovereignty, especially if supported by a referendum which was claimed politically (if not legally) to be binding.
My guess is that he also would have argued that the Commons doesn’t need the assistance of the Supreme Court to constrain the Government or, if necessary, to bring it down and force an election – that, of course, is another story, some he would also have been a fierce opponent of the decision to have fixed parliaments. Nevertheless, for those who believe that Powell ranks as one of the greatest Parliamentarians of the 20th century, it is a great shame that we don’t have the benefit of his advice today.