Much Ado About Really Very Little.

Hark, social media explodes in angry rupture! A three-judge panel has ruled that the Delightful Mrs May cannot trigger Article 50 of the Treaty of Lisbon without consulting Parliament first. This is it for Brexit, then. The vote might as well never have taken place. The British Government has clearly plotted with EU-phile judges to prevent the United Kingdom leaving the European Union. Or has it? Having read the decision, I found nothing at all preventing Article 50 from being triggered. In fact, the decision explicitly stated that the invocation of the dreaded Article 50 in itself is not the question being considered. Rather, that the Government cannot use the Crown Prerogative to invoke it.

It wasn’t an especially long or brilliantly-written decision, but it never-the-less was well considered. Article 50 was designed to be both unpalatable and irreversible. In fact, the man who crafted it acknowledged that it was not intended to actually be used by any member state. It was simply a legal necessity in a document rooted in Civil Law. Once it is invoked, be it by a parliamentary motion, an Act of Parliament or by Crown Prerogative a two-year process will commence that in the United Kingdom would result in the irreversible repeal of the European Communities Act, 1972. That is, an Act of Parliament would be permanently unmade. Britain’s sovereign parliament has reserved exclusive discretion over the making and unmaking of laws for centuries it shouldn’t really be a surprise that Parliament, following regular procedures, would need to invoke Article 50.

If anything, this decision only strengthens the case for Brexit. It has received popular approval, it will receive Parliamentary approval – after all, a defeat for the Government on a matter of such significance would force a snap election. The vast majority of Tory MPs have signalled their desire to be getting on with it and many, if not most, Labour MPs have accepted the decision of British voters. If an Act of Parliament is required, the Lords might kick up a fuss but they can do no more than hasten the creation of an elected upper house. It’s likely that the Prime Minister was already aware that the court would rule this way and that the UK Supreme Court, that most political of judicial animals, would be unlikely to rule differently. Either a parliamentary motion or an Act of Parliament, the latter being the legally preferable course, will be quickly sorted.

Author: Christopher-Dorset

A Bloody Kangaroo

46 thoughts on “Much Ado About Really Very Little.”

  1. Whatever the Clever Dicks aver, the People have spoken. The rest is simply noise in the machinery of state. Ms May will sort it post haste.

  2. One assumes that this is all part of the pantomime that is British politics. At worse there might be a slight delay in timing, but that’s hardly the end of the world.

  3. No Christopher, it is not the end of the world, just a blip or as you , say, a slight delay. So why the media hysterics? The Remainers are gloating about a great victory for er “democracy” and Brexit supporters are wailing that Brexit has been thwarted.

    Frankly, I doubt that few have bothered to read the actual judgement, which may or may not be overturned in the Supreme court.

    It’s early days and already this sort of pandemonium ensues, this is the easy bit, the negotiations are likely to be far more tricky.

  4. I think the media has been well stoked by the main participant not being white anglo-saxon and protestant and a rich woman to boot with huge vested interests. Really not a wise choice.
    It is so elite versus proles one couldn’t make it up.
    How to generate scythes and flambeau without even trying. Of course the media will have a field day. The elite in the UK do seem to be pushing their smug complacency a bit too much currently, as if the peasants will never revolt and they have a God given right to do anything they want. Somebody should remind them! Others tried it before and came grievously unstuck.

  5. Araminta: The tabloid press, it seems, have come to dominate public discourse — at least in tone. That, or social media is doing its worse to turn the most tedious of details into rhetorical pub brawls. The mind boggles.

    Brexit will likely not be “soft” enough to please some of the more devout remainers but will not be “hard” enough to please the more adamant Brexiteers. After over forty years of integration the status quo ante will be almost impossible to revert to without severe economic and social ramifications. Some sort of freedom of labour will likely have to be stomached by the United Kingdom. Too many Europeans live in the UK, too many Britons live on the continent and too many jobs and industries now rely on people being able to quickly and easily move back and forth between different offices in Europe. Britain’s relationship with the EU will almost certainly be a fortified Swiss settlement. It’s not necessarily ideal or to anyone’s taste, but it’s a largely functional muddle that most can live with.

  6. Tina: I think that the rapid decay of the Continent will quickly make it more and more difficult to argue that the UK has any benefit in staying “in” the EU. Naturally, as the UK disentangles itself gradually and social trends change they’ll change their tune and pretend that they weren’t so against it, after all.

  7. Tina, I’m not sure if it quite that simple. The real issue, as was challenged in the court was to do with the matter of the use or misuse of the Royal Prerogative, effectively bypassing Parliament. If we are by a majority vote going to leave the EU then it should be done correctly, both legally and constitutionally.

    Of course the government would prefer this to happen without recourse to a vote by Parliament , given their small majority and vagaries of the House of Lords, but is this right? Lawyers disagree as usual, but it is quite an important point. The only way it can be decided in this instance is in the courts.

  8. Yes, it’s a necessary step in the ritual dance. Given the epoch-making importance of the split from the EU, the constitutional details must be observed.

  9. There is nothing complicated about Brexit although the establishment will turn it into a buggar’s muddle.
    We just want our sovereignty back and we don’t want the so called Free Market because it comes with strings attached.
    The laws and regulations enacted during our sojourn in the EU remain for the time being on the statute book and once clear of Brussels we can take our own time in modifying or repealing them.

  10. It’s fine to interpret everything as a conspiracy by the establishment but it doesn’t alter the basic structure of our democracy which still has to be respected.

  11. Jazz: I normally agree with Gerald Warner but this piece misses the mark entirely. Gordon Brown, may his name go down in infamy, signed the Treaty of Lisbon in a most cack-handed and dishonest fashion. Parliament approved it. It received the royal assent. Whether you like it or not, the United Kingdom agreed to abide by that odious instrument. Cameron resigned, there was a dog’s breakfast of a leadership contest and the Delightful Mrs May prevailed. If she had simply whipped her party into repealing the 1972 European Communities Act as some would have liked it would have created absolute and complete chaos. The majority of Britain’s laws are tied to it. For decades business and families have operated on the understanding that the UK worked within that European system. Millions of Britons moved to the continent, millions of Europeans moved to Britain. Companies set up their operations to reflect this settlement. To simply tear it up and throw it away is an act of rash irresponsibility that would have created absolute chaos. It would also make the UK look decidedly dodgy and unreliable. As for the “Single Market”, it has its flaws but it will takes years to extricate Britain from it. It’s best to go for a beefed-up Swiss arrangement that extricates the UK legally and financially from the EU, but still diminishes the most immediate shocks. The UK, like Switzerland, can adjust terms over time by law and by practice.

  12. Warner has missed nothing and neither have I. WE VOTED TO LEAVE THE EUROPEAN UNION the bold wording is exactly what was on the ballot paper.

    To paraphrase:- What part of leave do you not understand.

    As a fully sovereign country we can negotiate which parts of previous treaties and agreements we wish to honour, but we can only do that effectively once we’ve LEFT

  13. What part of “treaty obligation” and “responsible diplomacy” don’t you understand? To make it clearer: we will largely get what we want, but this is global politics, not a school function.

  14. Yes, Jazz, all fine and dandy and that is exactly what was promised by the Government, and politically is would be almost impossible for them to disregard this. But despite this, referenda are still only advisory and not binding, and this one was no different. This was actually mentioned in the recent judgment. the EU Referendum Act 2015 did not contain any wording to make the results binding on the Government, and Parliament were aware of this.

  15. Christopher, Responsible democracy…..? Well it would be a good idea for the representatives in our allegedly representative democracy to act in a responsible fashion and not try to dupe the electorate with a referendum which was really just a ploy. Well it backfired on them and they now have to pick up the pieces.

    Janus, yes we do want it now the reason being that the longer this drags on the more watered down will be the settlement. Walking away certainly is an option.

    Araminta. So we expect what was promised by the government !!!?? . Shock Horror. Well the politicians, judges and civil servants are going to learn some very hard lessons from this. Not delivering on this particular promise is not an option.

    BTW the plural of referendum is referendums.

  16. Jaz and Janus.

    Referendums v referenda : I’ve seen both and “referendums” does seem to be in common usage these days. I think it sounds rather odd, but then I cannot remember much of the Latin I was taught, so I’ll defer to Janus on this one.

  17. I read the article in the Spectator some time ago, Jazz, so I am aware of the reasoning but I still think it’s a question of preference or style in the end.

    There was a similar discussion in the Telegraph some time ago on the same subject and I think they decided that either were acceptable.

  18. Jazz: In this case, responsible “diplomacy” as my response clearly stated. Parliament will have no choice but to abide by the results of the referendum if it wishes to have any shred of legitimacy. The more complicated part is actually bringing a workable settlement about. This is Europe 2016-2017, not China 1863. The UK holds a strong hand but it is in no position to dictate the terms of its Brexit settlement to the 27 other EU member states. Hence, a more favourable Swiss-style solution in which the UK is out of the EU and EU law is not binding in the UK, but the UK still has access to the Common Market while being able to negotiate its own trade deals. Much like Switzerland, the UK will over time be able to tweak not only EU laws that were accepted into the corpus of British law, but its relationship with the EU. As for an immediate departure…Good luck with that. The UK will shoot itself in the foot that way.

  19. “….As for an immediate departure…Good luck with that. The UK will shoot itself in the foot that way….”

    You really don’t get it do you ?

  20. I obviously don’t “get it” either, Jazz. There is no way the UK can make an immediate departure. Are you suggesting that we just sever all ties with the EU?

  21. Jazz: Think as you please. However, if a country is unwilling to abide by the terms of a treaty it ratifies it can’t avoid a loss to reputation that will be hard to recover. Following the 2005 election Labour formed its third government. Blair stepped down and Gordon Brown — following established conventions — was asked by the Labour majority to lead them. HM agreed. Brown, a legitimate PM, agreed to sign the Treaty of Lisbon and the majority of Parliament ratified the bloody thing. In doing so, the UK agreed to ADHERE to the terms its SOVEREIGN Parliament ratified. Do you understand now? A treaty is a sort of contract for countries. Like a contract, it must be honoured. The British Government is obliged by international convention to honour its treaty obligations. Even if in legal theory Parliament can do otherwise and there is little to stop it, the UK will not look responsible. Furthermore, the UK left the Commonwealth in the lurch in 1972. Denmark and Ireland joined out of necessity. The UK would also leave these two countries in the lurch. Ideology leads to strife, not success.

  22. Janus: Ignoring the concerns of a large minority of British voters with a sneer and a loud “lump it” sets a bad precedent. Not all supporters of Brexit were keen on cutting all ties with the EU and not all “remain” voters were keen on the prospect of European integration, they simply didn’t want to take a leap into the great unknown at a very delicate moment in geopolitics. Of course there’s been far too much shrill derangement from the losing “remain” side, but we’re kidding ourselves if the “leave” side haven’t had their share of lunacy.

  23. I was under the impression that the Act setting up the Referendum included the promise that the results would be binding – not merely advisory.

    I was also of the opinion that the question asked was remain or out – with no degrees of how much to retain and how much to throw out. I find it quite ridiculous that people are interpreting just how much ‘remain’ the outers wanted and how much ‘out’ the remainers wanted. It was a clear cut question and OUT won.

  24. Boadicea: This is where it gets murky, at least legally. Technically speaking, the Referendum was advisory but Parliament, by passing the Act to begin with, agreed to honour the result. They’re legal fine points, but they’re important never-the-less. That Parliament will trigger Article 50 is a moot point. The only question is if the Lords will kick up much of a fuss. Even then, they can only delay its invocation for 18 months at most. In such a febrile climate I doubt even some of the more militants Peers will risk that much public odium!

    This is the diplomatic equivalent of a divorce. A lot of details have to be worked out. A multi-generational legal and economic settlement has been tossed out the window. As you’ll recall, I was and remain strongly in favour of Brexit, but the hard part is reaching a new settlement. For better or worse, European markets are vitally important for the British economy. Yes, they’re declining and there are other opportunities — one of the reasons why I supported Brexit — and those will be more easily realised. Still, I think it better to take things one step at a time and proceed in such a way that will free the UK’s hand to pursue its interests globally without alienating the Continent and harming the UK’s economic interests there. If we get 70pc of what we want within 2-3 years and then work out the details on the remaining 30pc over the next 10-20 years we’ll still be doing well. We might also be setting a positive precedent that the Danes, Swedes, Finns and even Dutch can follow.

  25. The legal small print might be murky but the moral imperative is not. Did the UK vote to leave the EU? Yes. Do the dirherers have any right to confuse the issue legally? No.

  26. For what it’s worth, Janus, I’m in complete agreement. The British Government ought to simply submit a bill to Parliament to that effect. The more air-tight the legal process is, the fewer challenges it will face and the more quickly we can get on with it. Frankly, the fragrant Ms Miller’s challenge did little to slow the process down. If anything, it only raised the hackles of the electorate and solidified support for Brexit among soft-remain voters. Should the Lords try to slow the process down they’ll only speed up the demise of the peerage system.

  27. While agreeing with your sentiment, Janus, is it not better to face these legal niceties now so there can be no comeback in the future from Remainers that leaving the EU was illegal or unconstitutional in the first place?

  28. It was unconstitutional to sign away the sovereignty of the UK in the first place…

    As for House of Lords – the sooner it is reformed the better – and that’s from one who has supported it all her life!

    As I understand it, it is intended to simply incorporate all EU legislation into British law and repeal the bits that Britain doesn’t need or want at leisure. Seems pretty simple to me!

    It is indeed a divorce, and not an amicable one at that. The sooner the process starts the better. As long as there is a legal tie, the longer people will wonder whether it is for real.

  29. Boadicea: It’s a simple “Act of Reception”. Australia, New Zealand, Canada, Hong Kong and that catastrophe south of Canada that tries to pass itself off as a “country” have all done that with the Laws of England.

    There was never any doubt that the outcome of the vote would be honoured by Parliament, especially after the dust was allowed to settle. At this point the easy bit — the decision to stay or leave — has been completed. Now, we have to suffer through years of a political Punch & Judy Show in which every step and misstep will be exploited to its full advantage on both sides. This will be the most tedious, painful and brutal part of the entire process — and it will be the one with the least amount of action and the greatest amount of fuss. The wait until the Queen’s Speech was intended to be the first step. The United Kingdom will play every card in its hand to its maximum worth. It makes no sense, but this is how diplomacy works.

    A book was recently published titled: “Second-hand Time: The Last of the Soviets”. It’s a collection of accounts of life in the terminal years of the Soviet Union and the rise of the New Russia by ordinary Russians. One of the central themes, a leitmotif even, was that for all the oppression, brutality and squalor of the Soviet Era there was a belief shared by many that they were toiling for a better world and a better future. For its scarring failures and deprivations, the might of the Soviet Empire was a source of pride and remains so today. As the new “Europe” starts to crumble and splinter along its historical fault-lines, this lesson is worth considering. On the Continent, whatever the failures of the “European Project” were, are and will be as it continues to decline there is still the lingering belief that people were involved in the effort to build a better future, a better Europe than the one that had been scarred by two world wars. It’s too late for me to fit into the European mould. I’ve placed my eggs in the British basket and I’ll go with and along with it, but you need to understand what people on the continent think, see and perceive — even if it’s bollocks to the nth degree.

  30. Now that DT’s Premium articles allow comments once again (who’d’a thunk it?) you could read Simon Coulter’s suggestion that Mrs May could make the Article 50 debate a confidence motion which might trigger a general election if lost.

  31. Janus, it could be the case. I think the High Court judgment neglected to tell us how it could be done – just how it couldn’t! I hope the Supreme Court will be a little more helpful in this regard.

  32. Janus: That is a possibility. I inferred from the decision that an Act of Parliament was preferable, but they weren’t quite that explicit. I mentioned an Act of Parliament because that would, while being perhaps more than is absolutely required, make the legal case for Brexit even more air-tight.

    Sheona: I don’t imagine that Labour are keen on an election at the moment so that might well go through!

  33. “I mentioned an Act of Parliament because that would, while being perhaps more than is absolutely required, make the legal case for Brexit even more air-tight.”

    Good point, Christopher and this has been done before for just that reason. It’s an extra safeguard to get parliamentary approval even though it is not strictly necessary, but usually when the majority is large enough that it will get through without too much hassle.

  34. Janus: The SNP are against everything, but for nothing. The sooner they face collapse, the better.

    Araminta: One thing I dread is a plethora of legal challenges “after” the Prime Minister invokes Article 50. Once invoked, there is really no way that the UK’s departure can be slowed down. I somehow doubt that all 27 other EU member states will agree to give the UK more time because some petulant moaners want to drag ever comma, semi-colon and full stop before the UK Supreme Court. Perhaps one reason why the Delightful Mrs May has delayed the invocation is because legal challenges were inevitable.

  35. Janus: Cameron did not make any plans for a potential “leave” result. His prompt resignation, while understandable, did little to settle nerves. The result was that the next British Government had to decide how it wanted to proceed and what their ambitions for a post-liberation United Kingdom would be. For the sake of cabinet unity and to avoid unpleasant spats, Article 50 invocation was delayed for as long as diplomacy would tolerate. As soon as it became clear that “remain” weren’t doing as well in Newcastle as they had hoped and far worse in Sunderland than they had expected, there was already talk of kicking up a fuss. Once it became clear that there was no way that “remain” could win, some more adamant remoaners looked for any reason to nullify the results or at least delay implementation for as long as possible. Once securely in power, the Delightful Mrs May would have had to know that legal challenges were coming and that there wasn’t necessarily a guarantee that British courts would support her preferred course.

  36. Good evening.

    I have now done a fair bit of reading on the decision and have flitted hither and thither on whether it was ‘right’ or would be upheld by the Supreme Court on appeal.

    I now reckon that Professor Adam Tomkins MSP has the truth of it.

    You need to know that Prof Adam was a socialist and Republican constitutional lawyer who saw the error of his ways and was persuaded by Ruth Davidson to stand as a Conservative (and Unionist) in this year’s Scottish Parliamentary elections. He was duly elected.

    He believes that the Supreme Court will reverse the decision of the lower Court and this is his reasoning:-

    I’ll leave it to you to read his whole argument for yourself if you so choose, This extract sums up my own position precisely:-

    ‘This is not a party political intervention, and nor is anything in this post informed by the fact that on 23 June I voted to remain in the EU. I voted remain because I thought that David Cameron’s renegotiation of the UK’s terms of membership was pretty good. I have not changed my mind about that, albeit that I think the UK must now leave the EU because a clear majority of the British people said so in the referendum.’

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