How to handle a Brexit


So now we have a decision of the High Court saying that the government cannot use the Royal Prerogative to trigger Article 50.

The howls of outrage from the Brexiteers have had to be heard to be believed - how could the Courts possibly justify interfering in the democratic process?  Michael Fabricant said in the Commons on the day of the announcement that the decision was 'deplorable'.  Did he think that our judges were acting politically or was he saying that his knowledge of the law was so superior to that of our judges that he could be contemptuous of their reasoning?  Or was he perhaps alleging that they had been got at in some way?  I think we should be told.

The leader of an organisation called something or other like "Leave means leave" said that the claimants (trendy liberals all) should withdraw their claim so that the government could implement the democratic result of the referendum - obviously by using that pillar of democracy, the royal prerogative.  So much for the idea that the rule of law is an integral part of and underpins the whole concept of democracy.  Does he really believe that the withdrawal of the claim would mean that the government could simply ignore the Court's decision and go on as it initially intended? What a buffoon - obviously a friend of Boris...

David Davis, our Brexit Secretary said that Parliament had voted for the holding of the referendum by a ratio of 6 to 1.  How then could the Courts interfere with that?  Well obviously if Parliament omitted to make the referendum result binding or give authority to trigger Article 50, then the Courts are stuck with enforcing the law as it is and not how the Brexiteers think it should be had they, the law-makers, got it 'right' the first time.

And then we have UKIP who are shouting the odds about 'unelected activist judges' - [Here, fill in desired expletive] !!!

All of which means that we have a re-definition of the expression "taking back control"  Apparently it means giving it to the Brexiteers rather than returning power to Parliament!

I've read the judgement (for a summary click here) and it seems to me to be a very straightforward and unsurprising exposition of our constitution. The Government's case was set out in the judgement and comprehensively demolished.  I have to say that I agree with the High Court, although I am no constitutional expert.  Mind you this wasn't your average High Court.  It consisted of the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales.  Some of our best legal brains.  So I'd back them against Michael Fabricant's reading of “Constitutional Law for Dummies". 

Essentially, the Court has said that the Executive cannot invoke the Royal Prerogative to repeal the laws of the land.  Charles I tried that and look what happened to him!  An Act of Parliament is needed to repeal another Act of Parliament, in this case the European Communities Act 1972.  That anyone even has to say it is a sad indictment of our political masters and their desire to wield power.

I shall be fascinated to see what the Supreme Court makes of it if the Government decides to continue with its appeal as, it seems, they intend to.  It's looking as though they'll have, for the first time ever, a court consisting of all of the Supreme Court judges. Bring it on!

But if the Supreme Court confirms the judgement, what the practical result will be is far from clear.  It is unlikely to result in our continued membership of the EU. After all, there is no political will to block a Brexit in Parliament (at least in the Commons). But obviously Parliament could impose conditions on the government, such as a requirement to accept membership of the Single Market or the Customs Union. 

And what of the reaction of the press the following morning? I’ll keep it short, for the sake of my blood pressure, but it was homophobic (the Master of the Rolls is openly gay), racist, as regards the people who brought the case, and horribly reminiscent of Trump.  Truth is redefined to mean whatever they want it to mean. One of the Daily Mail’s columnists later said that the Judges had to expect “some come back” from their decision.  If a doctor diagnosed a prime minister with a terminal illness, would that make him “an enemy of the people” or mean that democracy had come to an end?  Should he expect “some come back”? What is the difference between saying what the law is and making a diagnosis of an illness?  In each case it is a professional judgement.  If our law-makers – the MPs - aren’t competent enough to get the laws right, then it is certainly not the job of the Judges to substitute their own views as to what parliament might have intended. Imagine the howls of protest if they did!  And yet their refusal to do just that has produced exactly the same reaction.  Nether is it the role of the ‘free’ press to lead the way towards a fascist state by telling us that the Judges are the “Enemies of the People”.

Paul Buckingham

3rd November 2016
updated 5th November 2016

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