I Have Read it Now

A short while ago I explained that it was necessary for me to read the Divisional Court’s judgment before expressing any opinion as to whether the court was right or wrong to declare that the Crown had no right to start the procedures for our departure from the EU.

I have now read the judgment. I had assumed that it was very long. In fact, it is rather short. A lot of it makes sense, but it suffers from not being what one might call a deep inquiry into the law. Yes, there are a few obligatory references to Dicey, but it is not a judgment which will find its place in future histories of our constitution.

That is not to say it is wrong. Enoch Powell, who was a late convert to the anti-common market cause, maintained that the European Communities Act was almost unrepealable. Whatever one thought about Parliamentary sovereignty, he asserted, it would be impossible for government or Parliament to undo the wrong done to us by our accession to the Common Market: parliamentary sovereignty was lost for ever. I disagreed with him. I have always thought that we could get out of Brussels tyranny. But I do see it is not all that simple. Today’s judgment demonstrates that Powell may have had a point.

But I do maintain, whatever Powell said, that it is possible for us to leave the EU. The Divisional Court may be right to say that Article 50 can’t be triggered by an exercise of the royal prerogative (we must hope that the Supreme Court treats the issue more seriously than the Divisional Court did). But that isn’t the end of the discussion.

I do not expect the Supreme Court to come to a different conclusion. It is more and more a political rather than a legal body. And most of its members are almost certainly fanatical remainers. That said, I would hope that the Supreme Court might be prepared to say what is meant by parliamentary approval of triggering Article 50. The Divisional Court was silent on that point. We have not been told whether a simple vote in the House of Commons, a vote in both Houses or an Act of Parliament is necessary. It seems to me, following the logic of the judgment, that an Act of Parliament is needed.

Plainly, Mrs May should be instructing her civil servants to draft a short Bill permitting the government to trigger Article 50. She should, of course, wait for the Supreme Court decision before proposing the Bill to Parliament. But, assuming that court dismisses the government’s appeal, she should immediately press ahead with it.

The probability is that the Commons (populated by people who depend on the votes of the electorate) will pass the Bill. Even Tony Benn’s son (who violently disagrees with his father’s support for parliamentary sovereignty and opposition to the EU) has said we must respect the result of the referendum. He and many other Labour MPs have said they will vote for the triggering of Article 50. Ken Clarke and Nicky Morgan may vote to stay in the EU, but hardly any other Tory members will do so. The overwhelming likelihood is that the Commons will support the Bill.

Yes, I know. The Lords, a body now made up of dreary political appointees owing their peerages to Tony Blair, David Cameron and Nick Clegg, might well reject an Article 50 Bill. If that happens we must have an immediate general election. Once that has happened, with the inevitable result of an increased Conservative majority, Mrs May must have no hesitation, if the Lords persist in opposing the will of the people, in advising the Queen to create hundreds more peerages to ensure that the electorate prevails.

The assumption that today’s court decision has stopped Brexit is nonsense.




5 thoughts on “I Have Read it Now

  1. Thank you for the update, Charles, as the site’s legal expert you are doing an excellent job.

    I agree with your conclusion that it will not stop Brexit, but the means of doing so are not that simple.


  2. The question since 24 June hasn’t been of the United Kingdom withdrawing from the European Union or not. The question has been what sort of relationship the United Kingdom will have with the European Union. In this instance, Powell has been partially vindicated. The United Kingdom will not be able to revert to the status quo ante without tremendous disruption. For better or worse, mostly worse, the UK has economically and demographically integrated with the continent to a great extent. A good many jobs rely on seamless movement of goods, services and even, yes, labour. For example, bank employees working in both London and Frankfurt or employees of multinational firms working in London and Amsterdam. Never mind the UK’s car industry, etc. There are millions of families both British and European that are spread across the UK and Europe. The EEA’s freedom of movement has had many failures, but it’s had its successes and recent decisions in both Germany and Sweden show that the rest of abuses can be mitigated with trends moving in favour of further clamp-downs. Ultimately, I think that the UK’s relationship with the EU will be a horrendously muddled affair quite similar to Switzerland’s with certain differences that broadly works despite some degree of unhappiness on both sides.

    Liked by 1 person

  3. I do not understand this obsession by parliamentarians with our negotiations with the EU. The EU will give nothing important as then other member states could well be tempted to follow us and leave. So just what is there to negotiate? The referendum was about giving parliament its sovereignty back but now it seems many members are not being mindful of that, and the clear instruction given to them. To my mind sovereignty means passing our own laws so all this rubbish about workers rights being lost is just that- rubbish. Trade will continue does anyone really think that hard headed BMW executives are going to suddenly stop selling to us! Time our supposed leaders got some guts and showed leadership and reflected the independent mindedness the referendum showed still very much exists in us ordinary hard working sensible people.


  4. If May does press the nuclear button and call a new election (and destroy Labour), how does she solve the problem of the fixed term parliament? Will a new Act be required?


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