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.



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james higham

One hopes this last.


That's good rhetoric and perhaps even good philosophy, James, but bad law. The English courts have no way of knowing what the people want other than as it is expressed by Parliament. They will quite rightly listen to no other voice. As we have been throughout our history, except during the dark years when the Crown asserted a far greater prerogative than it did this week, we are at the mercy of Parliament.

Through elections and constituency pressure (I exchanged emails yesterday with my own MP and you should write to yours) I still believe that MPs, including Tory Remainians, will do the right thing. In fact I am enjoying the likes of Polly Toynbee and my own MP Rupa Huq, urging them to defy us. All over the country, the people are learning from their sneering the truly wicked nature of the enemy within.

The more they assert the dominion of their "superior" and "more enlightened" will over that of the people, the more their hateful power will wither.

James Higham

Parliament is not sovereign, the people are. They serve the people, at our sufferance. The judiciary is neither the legislature nor the executive.

Had there been no direct order, i.e. the referendum result, then parliament's will would have prevailed in lieu. But the people did formally speak, as at a GE and so parliament and all other bodies must fall in with that.


@ Antisthenes: if judges start including "expediency" in their deliberations, we're all in deep, deep trouble. Think Niemoller.

I'm grateful to our host for his explanation here. My MP, Steven Phillips (a judge and QC whom I have reason to respect) has just resigned over this very (or a very similar) point. Now I understand better than I did before.


If as is likely to happen government is not allowed to trigger article 50 because either the restrictions imposed on it are unacceptable or parliament especially the Lords block it then May will have to call a general election. She should win it with a comfortable majority but she will have the Augean task of cleaning out the house of Lords. In any event this court ruling right or wrong has given enough ammunition for romoaners to scupper Brexit altogether or at the least delay it for so long and amend it that it will become meaningless. Exposing the fact that the establishment is more powerful than the will of the people. Rendering democracy meaningless. Society craves the rule of law but sometimes refreshingly not often it can have very undesirable consequences. If as you say the judges are right then we will have to deal with it but it will be at a heavy cost. Avoided if the judges had included expediency in their deliberations.

barnacle bill

Mr Paine I fully agree with your summary up until your penultimate paragraph when you muse that MPs will choose the safety of their seat over principles.

We have seen too often MPs who are prepared to give their constituents the finger when it comes to ethics, principles and following the will of the people they are supposed to represent. Something we will no doubt see should an early general election be called over this issue.

The umbilical between our MPs and their constituents has become stretched to breaking point as they have surrounded themselves with the Westminster Bubble.

If we had a proper system in place for the recall of one's local MP I might have some hope that our MP's would be listening to the rumbling with-in their respective constituencies. But we do not so their despising of us will continue and they will just reach for another helping from the Westminster trough.

Anyway I agree with the direction of your final paragraph, to this end I have already written to my local MP asking whether she will support and respect the wishes of the referendum vote. (Her constituency was a majority "Out" vote) I await her reply with interest.

Returning to the question of whether we will get Brexit? I think the stitching up began as soon as the Cameroon resigned and it continues.

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