The attempted  murder of Brexit

Robert Henderson

The remainers  are intent on murdering Brexit through the political equivalent of death by a thousand cuts.  Delay is their great   ally  and  there are plenty of individuals – politicians, mediafolk, academics, lobbyists, pressure groups, businessmen and much of the rest of the  amorphous mass of the Great and the Good   – who willing to play the role of Quislings in the service of the EU.

The decision by the High Court that the government cannot activate Article 50 to begin the process of the UK leaving the EU without  first getting Parliament’s approval  is as shameless a pierce of politically motivated judicial activism as you  could find.  It has potentially created  the type of constitutional clash which civil wars are fought over.

The Government has decided to appeal against the judgement. Permission has been given to bypass the Court of appeal  and go straight to the Supreme Court. The case should  be held on 5th December, but the judgement will  probably not be given until the New Year.    The Supreme Court has also given Scotland and Wales the right to intervene at the appeal hearing. This will broaden the matter to include the role,  if any,  of the devolved assemblies.  A case brought in Northern Ireland at their High Court  over Article 50 has already been dismissed as non-justiciable.

Senior English judges pushing their own political  agenda? Consider this. The three judges  involved  were Lord  Thomas of Cwmgiedd ( Lord Chief Justice ), Sir Terence Etherton (Master of the Rolls)  and Lord  Justice Sales .  There is nothing in Etherton’s  past to say what his stance of the EU would be, but the other two definitely have question marks over their impartiality.

Thomas was a founding member of the  European Law Institute, whose mission statement is  the ‘enhancement of European legal integration’ . He has  also served as  President of the European Network of Councils for the Judiciary.  It is reasonable to conclude that he is in favour of the UK’s membership of the EU.

Sales worked  in the chambers  headed  by the  erstwhile Lord Chancellor Lord Irvine of Lairg and is a friend of Tony Blair for whose government  he worked as First Treasury Counsel .  As Blair  and his government were firmly in the EU camp and Blair has recently been vociferous in denouncing the  vote for Brexit it is reasonable to suppose  Sales  sympathies [probably also lay with the remain side.

But even without relying on  pro-EU evidence it is a fair bet that any senior member of the judiciary is likely to be a Europhile and emotionally opposed to Brexit  because they come from a set of  people for whom Europhilia is the norm.  Moreover, is it really possible for anyone to be truly impartial when adjudicating on such a nakedly  political matter?

After the High Court Judgement it was widely thought that the passing of a  Bill permitting the activating of  Article 50 would  be sufficient to meet  the Court’ s judgment that Parliament must agree to the triggering  of Article 50.  That would have been difficult enough bearing in mind the preponderance of remainers in both Houses of Parliament. But the position has become more fraught. Astonishingly, one of the judges scheduled to hear the Supreme Court appeal, Lady Justice Hale, has publicly pronounced that  “Another question is whether it would be enough for a simple act of parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement of the 1972 act…” If  the Supreme Cou,rt agrees with her the delay could be interminable.  Whether what Hales has said would  technically rule her out from hearing the Supreme Court appeal is not clear because she could argue she is merely putting forward a legal point to be considered, but it is an extraordinary thing for  any judge, let alone one of the most senior in England, to comment on a case which is to come before them.  It certainly adds to the suspicion that the higher judiciary is deliberately trying to block Brexit or at least prepare the ground for remainer politicians to manoeuvre for  conditions which will tie the government’ s hands to be conceded by the government, the majority of whom are also natural remainers.

Not a simple matter of law

The  London High Court judgement stressed that  the decision had  been made  simply as a matter of law and the court took no position on the desirability of otherwise of  the UK leaving the EU. But what did the judgement achieve in practical terms?  It said that  Article 50 could not be activated without Parliament voting on the matter,  possibly by a  motion, but most probably by voting on a Bill.  But if it was simply a matter of voting  on the Article 50 activation what would be the purpose of such a procedure  after  the question of leaving or remaining  had already been decided  by the voters?  It would be an empty act.

The answer  is all too obvious. The judgement meant  it would not simply be a question of Article 50 being given Parliamentary sanction. MPs and the Lords potentially would be able to delay the any Bill for a considerable period of time and  by placing amendments to  the Bill. If it was a motion the Commons could simply vote it down.

The Government  has a  small Commons majority, and could probably count on a handful of MPs from other parties to vote with them on this issue,  but the House has a substantial majority of those who wish the UK to remain in the EU. There are 650 MPs in the House of Commons. Of those probably two thirds, including many Tory MPs,  are remainers. Hence, numerically, in theory it would be very easy to  defeat any Bill the government puts forward to activate Article 50. However, it is dubious whether many remainer MPs would want to be in such naked and  direct conflict with the voters who voted to leave by simply rejecting a Bill or a motion which did nothing more than authorise the activation of Article 50. Instead they will try to engineer a situation whereby  they will authorise the activation of Article 50 but only if  the government accepts that they will  negotiate within limits set by Parliament. The most probable limitation  would be that any agreement with the EU must include the UK’s continuing  membership of the single market. It  is wildly improbable that the EU would agree to that without insisting on free movement of labour,  the UK continuing to pay their annual “fee” and the UK being bound by the regulations which attach themselves to the single market and subject to the European Court of Justice or a  surrogate  such as that which performs the same function for EFTA countries .  In short, this would  require the UK to sign up to all that  voters rejected in the referendum and the country would remain within the EU in all but name.

All of this means that  High Court verdict was not a simple procedural matter but a legal  direction which very obviously  had effects which challenged the  viability of the vote to leave.  The issue  which the High Court should have addressed is  what would Parliament  have to examine before Article 50 was activated?  The question on the ballot paper was this:

‘Should the United Kingdom remain a member of the European Union or leave the European Union?’

(The question was  suggested by the Electoral Commission (EC)  and accepted by the Government after the EC had judged the government’s question biased in favour of remain. )

What was asked of the voter was beautifully simple:  do you want to remain part of the EU or do you want to leave the EU?.  To leave an organisation means precisely that, you cease to have either the benefits or duties which membership brings.  There is no I’ve left  the club and won’t be paying my subscription any more, but I still expect to be able to come into the members bar and use the squash courts.  Hence, there is no point in Parliament having a vote on Article 50 because the referendum has already decided that the UK will leave.  There is no hard and soft Brexit, just Brexit.

By coming down in favour of Parliament voting on the activation of Article 50 the judges went against both the wishes of the voters and what was necessary.  Whether they did so out of bias is a matter for their consciences, but it is a fact that by acting as they did it opened  a door  for the   remainers to cause delay and confusion in the hope of either getting  something that is called Brexit in name but not in fact  or of the UK eventually remaining in the EU after a second referendum.

The prerogative

The  High Court found that the 1972 European Communities Act meant that the prerogative could not be used to activate Article 50.  But as so often with legal judgements legal minds disagree,. Here is David Feldman is Rouse Ball Professor of English Law, University of Cambridge, giving a contrary opinion to that of the High Court:

The question in Miller was therefore, at root, whether the terms of the European Communities Act 1972 by necessary implication excluded the use of the Royal Prerogative to initiate a process which might, or in the view of the parties would, lead to the removal of EU rights from the domestic legal systems.  The Court thought that the relevant constitutional principles meant that the onus was on the Secretary of State to show statutory authority for initiating the Article 50 process.  I have argued that this was mistaken, and that there is no constitutional or interpretative principle which requires the 1972 Act to be read as excluding this prerogative power.  The implications to be drawn from the Act are, at best, equivocal.  In my submission, the foreign affairs prerogative is not excluded by statute, and requires no special statutory support for its use.  Initially I thought that my view was self-evidently correct.  The judgment of the Divisional Court shows that it is a matter on which informed opinions can differ….

It is also seems that  the government made remarkably  little effort to argue the case against justiciability of the High Court  action  (something which was successfully done in the Northern Irish High Court case)  – the BBC reported that “It was quickly established on both sides that the issue was justiciable”  and failed completely to base their defence of the action on the basis of popular sovereignty.  The government  also shot themselves in the foot by admitting that the activation of Article 50 would result in the loss of  some individual rights.  This moved the  triggering of Article 50 from being a simple procedure to something with the potential to trespass on statutes and hence beyond the power of the prerogative.  The attorney-general Jeremy Wright faced strong criticism from some Tory MPs for what they saw as ineptitude in the presentation of the government’s defence.

The logic of referenda

Whatever the status of the prerogative there is  also the  logical implications

of  holding a referendum .  Parliament voted overwhelmingly for the Act  (316 for  to 53 against ) which authorised a  referendum on EU membership.  There was no question of it only being advisory because  the Act which sanctioned the referendum contained  no such a clause and  politicians during the campaign did not say it was only advisory.

Apart from the fact that there is no mention of it being only advisory in the Act which legalised the referendum , there was plenty of evidence to establish beyond doubt that the  intention of the government was to treat it as a vote binding on the government.  The then  Foreign Secretary Phillip Hammond opened  the second reading debate on the Referendum Bill on 9 June 2015 by stating:

“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.”

He followed it up with this:

“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

The government reiterated the intention  and status of the referendum when they  sent  a leaflet  to every   household in the United Kingdom

The page entitled  “A once in a generation decision”  ran:

“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”


“This is your decision.  The Government will implement what you decide.”

All that being so, logically Parliament surrendered its power to make decisions about leaving the EU after the referendum Act was passed.

Finally, the claim that Parliament is at present  sovereign is clearly a nonsense because Parliament will remain subordinate to the EU and UK law subordinate  to that of the EU until the UK has left the EU.  The use of the prerogative is necessary to once again make Parliament sovereign.

The danger of betrayal by the government

An all too  plausible scenario is that there will be months of Parliamentary debate of one sort or another, perhaps taking the country well  into  the New Year with Article 50 still not activated.   At some  point Theresa May  says  well there has to be compromise and  agrees to attach limits to the negotiation her government cam undertake.  These will almost certainly include membership of the single market.

Why is that plausible?  Because May is a remainer  as are most of her cabinet. Three of the four great offices  of state  are filled with remainers – PM (May), Chancellor (Hammond) , Hone Secretary (Rudd) – while the fourth, the Foreign Secretary (Johnson) is a shameless careerist who could turn remainer at the drop of  a hat if he thought that would improve his prospects of becoming PM.   Such an outcome might well suit a majority of the Cabinet.

Already there are  the ominous signs  that despite the vote to leave  attempts  are being made to stitch theUuK back into the EU.   the UK has opted to go back into Europol and Boris Johnson is seeking to  retain the UK as the host for the European Capital of Culture in 2023. The danger is that this type of piecemeal tying of the UK back into the EU may  continue  without adequate protest because the ordinary British voter may understandably not be aware of the significance of  each individual hook which re-attaches the UK to Brussels.

It is true that two of  the three ministers who have  formal responsibility for the detailed  management of Brexit  ,  Liam Fox and  David Davies  ( Boris Johnson is the third)  – do have strong Brexit credentials but they are second rank ministers.  Obvious choices  of  rock-steady Brexiteers to be involved at secretary of state level such as  Bill Cash and  John Redwood  have been left out of the of the  government.

There is also almost blanket support amongst opposition parties for a resistance to leaving the EUI. On the Labour side Corbyn has already announced that a commitment to maintaining the UK’s access to the single market is the price for Labour’s support for the Activation of Article 50. (This after saying on 24 June that it should be triggered immediately)  In addition, a senior  Labour MP  Hilary Benn  (a remainer)  is chairing the Select Committee for Exiting the EU . Although he has said he will  not  try to block  the activation of Article 50,  he will still have a good deal of power to influence matters.

Most of the rest of the Commons is also opposed to leaving the EU. The LibDems  have said their manifesto at the next election  will contain a promise to rejoin the EU if the UK has already left before the election.  The SNP and the Welsh Nationalists are  both intent on either the UK remaining in the EU or having   some form of special arrangement  for Scotland  and Wales to  remain in the EU or some other close relationship

But the Supreme Court case is not the only attempt using the law to delay and confuse the move towards Brexit. The Crown Prosecution Service stands poised to enter the Brexit fray,  viz:.

‘Alison Saunders, the director of public prosecutions, is considering a complaint of “undue influence” on the referendum by the Vote Leave and Leave.EU campaigns.

‘The complaint centres around a claim that £350million per week could be spent on the NHS if Britain left the EU and a leaflet which read “Turkey is joining the EU”, along with assertions that “Britain has no border controls whilst in the EU”.

It is truly extraordinary that those with power within our justice system are so pantingly anxious to get themselves involved.  This complaint was not made by the police as is the  normal way for a prosecution to be laid before the CPS  but directly to Steadman who made the decision to consider the complaint on her own authority.

There are the irritatingly predictable suggestions from the media that “Theresa May will call a general election”. This is no longer in her power. The Fixed Term Parliaments Act schedules the next election for 2020.  Unless May would be willing to make something a vote of no confidence in her government and contrive to lose the vote, an earlier election would  requires two thirds of the House of Commons to vote for it.  That is 417 members out of 650.  The Government would need all its MPs plus another 90 or so from other parties to vote for a dissolution of Parliament, something very unlikely because the Labour Party is in disarray and the SNP would gain nothing by having another election. There would also probably be quite a few Tory MPs who would be reluctant to risk losing their seatsl with only 18 months of the Parliament gone.

What does this solid mass of resentful remainers  mean for UKip and, indeed, every  person who voted to leave on 23rd June?  It means  that the government must be harried all the way till the time until   Brexit in fact as well as name is achieved . It means that opposition parties must be left in no doubt that if they attempt to thwart  Brexit this will have dire electoral consequences for them. It means that every individual MP with a  constituency which voted to leave should tremble in their boots  at the  thought that if they  attempt to delay the activation of Article 50 their constituents will eject them at the next General Election.


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2 Responses to The attempted  murder of Brexit

  1. stalinvlad says:

    I think even school kids know all laws come from the monarch, via parliment (thats both houses) so if someone or something signs article 50 who does not represent parliment, it is not binding on the UK government, an empty gesture, so in fact we will still be in the EU. Look let me put it this way, if I drove up to London found the book with article 50 in it and put my mark on the document I think we can all agree that means nothing, for I do not have the authority to do that. If May, Davies who ever puts their mark on Art.50 without parliment’s approval it is null and void, thats why in the referendum bill it is called advisory, becuase we live in a dictatorship of parliment.
    This foaming at the mouth throwing your rattle out of the pram stuff smacks of bluster, the smell of something else, I can only conclude the elimination of parliment, you sir are a traitor

  2. Miss C.P. Pict says:

    Attempted murder of Brexit: Excellent post, thanks; so far not so bad except for unending migrants explosion.

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