THE LAST DITCH An Englishman returned after twenty years abroad blogs about liberty in Britain
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Brexit: it's just not about the law

Of Judges, Politicians, Crown Prerogative and Article 50

My RSS feed makes interesting — and amusing — reading this morning. Both in the mainstream media and the blogosphere, there are many interesting and strident opinions on yesterday's judgement in the Queens Bench Division of the High Court. Most of them are wrong. 

Britain's Constitution is famously "unwritten"  but can be summarised in three words; Parliament is sovereign.  The reassertion of that Constitution was, for many, what the Leave campaign was about. Many Leavers believed Parliament was not sovereign for so long as the UK remained a member of the EU. I was always relaxed on that point because Parliament could not (without actually dissolving itself and the UK) lose the power to leave. It was certainly wrong to have delegated many of its powers to Brussels via the European treaties but it could rescind that at any time.

When Parliament legislated to grant us a referendum, it began the process of leaving.  The government promised it would act on our decision.  But it was always going to be Parliament that would carry out those actions. I am therefore not shocked by or concerned about the High Court's decision.  That so many journalists and bloggers are concerned rather amuses me.

I wish this was a legal or a constitutional problem to be resolved by the judiciary. I have far more faith in our judges than our politicians. But it isn't. It is, and always was, a political problem.

In this, as in so many other ways the (to be polite) "special" breed of people who are attracted to power over their fellow men have a different point of view (and self interest) to the people they seek to rule. All over the western world this conflict-of-interest is leading to a tension in our democracies.  A tension between the "élite", the demos and "populists" seeking (depending on your point of view) either to bring the élite to heel or to become a new élite. In Britain there has never been any popular support for European political union, only for freer trade. So our tension came to a head over Brexit. In America it's coming to a head over globalism. In France, it's more about a war to defend the magnificent French culture from the perceived threat of immigration. In Hungary and Poland — though they have no immigrants to speak of — it's about culture too.

This does not mean that I am complacent about our political problem. It is very real. Those politicians who would like to keep their season ticket on the EU gravy train will do everything they dare to thwart the people's will.  It is too soon for the Leave campaign to fold its tents and beat its swords into ploughshares.  Yesterday at my hairdressers in Westminster, some Mandarin or other in the neighbouring booth was predicting to his barber that the court's decision would now be turned to political advantage by calling a General Election. That would become the "real referendum" and sanity would be restored.  No-one could then say that the people had been cheated, because nothing is more democratic than a General Election. Right?

The judges were very clear that they were not opining on the question of whether we should leave the EU or not. The judgement was about the precise scope of "Crown prerogative".

"The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown — acting through the executive government of the day — is entitled to use its prerogative powers to give notice under Article 50..."

In my view the judgement is correct and changes nothing.  The nonsense being written about "activist judges" and "shyster lawyers" is a waste of bandwidth.  Dangerously, it is also a useful smokescreen for the people that we should fear. The people we must always fear; politicians. Specifically in this case those dodging and diving to find a safe political way to subvert the referendum result. And Teresa May, whose Brexit bona fides are still in doubt and for whom the pointless appeal against this decision provides an illusion that she is valiantly championing the people's will.

Translated into General Election terms, constituency by constituency, the electorates of some two thirds of MPs voted Leave. So for once we can take comfort in the fact that mostly only wicked, self-serving people are attracted to the parasitical life of political power. Few MPs, however much they may regret the loss of lucrative Kinnockish opportunities in Brussels when their political careers end in inevitable failure, have the ethical fortitude to stand by principles when their seat is at stake.

The political battles continue but the war will be won. So please leave the nice judges alone and turn the white heat of your righteous wrath towards the Palace of Westminster again.