UKGov sought to use the Royal Prerogative to invoke Article 50, the letter from UKGov to European Union to say that the UK is leaving.
The Royal Prerogative is a means by which UKGov can engage in international treaties lawfully. Fine. But, as with all common law systems, laws co-exist and apply in parallel. In other words, the scope with which UKGov can use the Royal Prerogative is limited by Parliament’s will, i.e. Acts of Parliament.
And the blindingly obvious factoid that UKGov appears to have missed is best described as European Communities Act 1972. If UKGov were to invoke Article 50 without Parliament’s express permission, it would effectively breach the Act. The UK Constitutional Law Association has published a more rigorous analysis. (In any event, the Referendum Act 2015 did not permit an automatic annulment of the ECA72 according to the outcome of the referendum.)
An activist spotted this and did something about it. Step forward Gina Miller (linkedin) et al. The court judged in favour of Ms Miller. Hardly a surprise. Hardly controversial. The justices underpinned Parliamentary democracy and Britain’s rule of law. That’s what we need. That’s what we want. For those who voted in the referendum to leave the European Union, this judgement fundamentally enforces what they voted for.
And yet… a can of worms has exploded with the full force of a small nuclear war. Stupidity has erupted on both sides of the non-issue, such that Remainiacs and Brexiteers have almost swapped roles!
Those who engaged in Project Fear (today’s Remainiacs, engaging in Project Sabotage) now seem set to drag their beloved European Union into a farce that disserves the interests of the European Union.
Those who engaged in Project Fantasy (then and today’s Brexiteers), formerly calling for us to “take back control”, are now calling for Napoleonic European-style dictatorship to override Parliament.
The Brexit media has now deployed precisely the same smear campaign as the Remainiac media did prior to the referendum. The International Business Times summarises the major headlines of the British press; little of it is pretty reading. Unacceptably, Ms Miller herself has become the victim on online trolling (the Independent presents a sample of the trolling).
What’s going on? We need to start with understanding the Remainiac desire for this court case.
The political objectives of the court case
The court case permits the performance of two matters that Remaniacs rather like.
The first matter is the typical European polémique pour piquer the enemy. It’s about forcing Brexiteers to do what they said they wanted. “You said, ‘Take Back Control’? Well, that’s Parliament. So put Brexit through Parliament, stop Government by-passing Parliament. What’s to fear?”
The second matter is to engineer the most devastating answer to that question, “What’s to fear?”. The second matter is that Remainiacs hope, and pray, that the unelected second chamber of Parliament - the House of Lords - will either delay or block Brexit, or otherwise to destroy UKGov’s negotiating position such that the European Union’s interests shall supersede Britain’s national interests during the course the two-year period of Article 50’s process. A Remainiac can only tolerate an independent Britain if Britain can be so economically sabotaged that it needs subsidy from Europe to survive. In this respect, a Remainiac uses the European Union like a drug-dealer sells crack-cocaine.
Politically, this matters. By forcing the Brexit issue into Parliament, Parliamentary Remainiacs can use a variety of tools to undermine the will of the people, or wreak damage upon the people as revenge for shattering Parliamentary tin-pot ideologies. And the best place for Remainiacs to fulfil their evil intentions is in the second, unelected chamber of Parliament.
(See the theme? Remainiacs love unelected things. Taxation without representation: the ultimate Remainiac goal?)
The House of Lords is the next available tool in the Remainiac toolbox
Two days after the court’s judgement, Patience Wheatcroft - a Tory journalist, ennobled for no meritocratic reason as far as I can see (services to propaganda? services to a political party mafia? any suggestions?) - piped up, writing her opinion in the Grauniad.
The strapline reads, “It’s not our [the Lords’] role to defy the will of the people. But faced with potential calamity, we can ask the government to think again.” The strapline sums up the muddled, emotional, reactionary silliness, masquerading as rational thought, that bedevils the crony class of the House of Lords.
Let’s start off being generous to Wheatcroft, i.e. that she has no sinister ulterior motive. In this light, to me, Wheatcroft’s opinion demonstrates a typical attitude of the assiduously under-informed, non-technical, research-avoidant, overly-interested, overly-reflective amateur, armchair speculator, worrying about irrelevant details for the futile clamour for certainty. In promoting over-reflection, Wheatcroft is actively encouraging a self-fulfilling prophecy of doom. How? By seeking to prolong the Brexit process, she is willfully calling for more legal and commercial uncertainty to accumulate during the prolongment. This uncertainty was something Project Fear said was a reason to vote to remain, so why advocate prolonging the delay now?
It’s very painful to read. She grasps the central point of this, but clearly chooses not to understand all of the collateral damage of delay. She wrote:
The difficulty with this argument [for a second referendum once we know with absolute certainty what the exit deal is] is that, by the time that there is any clarity on the terms of a deal, it may be too late to turn back. Once the UK has triggered the exit process by giving notice under article 50 of the Lisbon treaty there is no provision for withdrawing that notice. The treaty is clear that, once a member state has given notice of its decision to leave, there is a period of two years within which terms can be agreed and, failing that, the state is officially kicked out of the club.
From Wheatcroft’s words above, the blindingly obvious least-risky strategy is to get Article 50 in quickly (far more quickly than March 2017, in my opinion), get the two year period over earlier, and then start concluding quick trade deals with parties outside the European Union.
But instead of reflecting on the strategic implications of her own words, Wheatcroft allows herself to be distracted about all sorts of irrelevant emotional rubbish, delivered by blunderbuss. She blunders through parliamentary sovereignty, our childrens’ futures (tell that to French children today: what future?!), the misleading pre-referendum campaigns, the apparently correct predictions of economic (she’s wrong for the wrong reasons, how embarrassing!), and so on.
Now let’s review Wheatcroft’s opinion in a more likely, plausible, sinister light. In this light, Wheatcroft’s opinion isn’t really for public consumption, even though it appears in a publication for public consumption. It looks more like a strategy piece for other Remainiacs in the House of Lords. And there are a lot of Remainiacs in the Lords. The House of Lords substantially comprises failed politicians and media people, appointed by Prime Ministers. Many of the Lords could be called “Tony’s Cronies” and, more recently, David Cameron appointed a pile of Remainiacs to the House in his resignation dishonours list [endnote 1]. Collectively, they have the power to draft legislation - and therefore to delay its passage through the law-making process - but they have zero accountability to the public.
Sometimes, the delay is useful and results in better quality legislation, especially prior to 2000, when the Lords contained a far smaller percentage of political cronies than it does today.
But for Brexit, the opportunity cost of delaying Article 50 is high, because it creates the very uncertainty that Remainiacs said in the referendum campaign was so damaging to Britain. So why set out to delay Brexit? The answer to this question can logically be only one thing: a desire to conduct economic sabotage.
So it’s easy to see why UKGov, supposedly determined to deliver Brexit (in an unspecific timescale) seeks to by-pass Parliament. UKGov is probably right to perceive Parliament as a threat to UK interests, government interests (UKGov, EUGov and European governments), and the EU itself.
Why? Because, to me, today’s Parliament - in both Houses - substantially comprise amateurs, demagogues, ideologues and opportunists, who are more in adept to polémique-pour-piquer each other instead of serving their peoples’ interests. Yet, the Brexit issue requires due care and attention be paid to another major stakeholder in the Brexit process: the European Union.
To what extent have Remainiacs assessed disclosure of the European Union’s position being exposed, even indirectly, via UK Parliament’s scrutiny of the Article 50 process?
This question is something Remainiacs - in their emotionally-driven, irrational, hyper-insensitive, thuggish zeal to have as many referenda as it takes for Britain to vote to remain - have yet to ask themselves. How useful is Remainiac loyalty to the Sovietesque European Union, if Remainiac actions end up blowing the gaff on the corruption - the deals, the favours, the lobbying, the opaque cashflows, dare I say perhaps the ‘money laundering’ - that holds the Union together? (“solidarity”, remember?)
Moreover, I perceive the European Union itself to be keen on Brexit, the sooner the better. Brexit enables a deeper European integration that Britain has sabotaged for nearly 40 years. So what on earth are Remainiacs trying to achieve?!
Whilst I am strongly in favour of Parliament taking back control for its people, I am wary that Parliament is currently too clueless to know how to do that professionally, for the mutual benefit of both UK and EU. Much as I dislike UKGov by-passing Parliament, my guts tells me that, on this occasion, it’s a necessarily bitter pill to swallow, simply to get this two-year Article 50 started and ended as quickly as possible. Ultimately, when Parliament has repealed the European Communities Act 1972, then - and only then - will it be possible for Parliament to have a proper renaissance.
But a renaissance might be some time off. For example, if Parliamentarians really gave a damn, every single one of them would have read the Flexcit plan from the day Cameron won the 2015 election. But I bet that 99% of Parliamentarians haven’t bothered to any basic research to find out whether a Flexcit plan existed, let alone read it...
The court case has prompted some Brexiteers to froth at the mouth with rage about the insubordination of judges against the supremacy of the people. These Brexiteers have completely lost the plot. They have no idea how democracy can best enforce its democratic will!
The incoherence of the Brexit lobby has always been clear to see, but on this incident, it turns into full-screen, three dimensional, Technicolor incoherence complete with quadrophic stereo sound and scratch-n-sniffs.
In the meantime, we can laugh at these rabidly reactionary Brexiteers and their infantile sledging of the High Court. Be happy that the people voted in favour of their government leaving an organisation that exports unchallengeable foreign law into the British statute book without proper democratic scrutiny, and enjoy the deepest irony when Britain’s unelected Lords intend to scrutinise the Brexit ‘deal’.
UKGov shall appeal the High Court ruling to the Supreme Court. I can’t see why the Supreme Court would overturn existing law to accommodate UKGov’s whims, but, of course, corruption works in all sorts of way. So I shall wait and see.