Brexit disruption: High Court rules against Crown prerogative to trigger Article 50 of Lisbon Treaty

You may well wonder what is going on. Many people are now bemused.

An action was brought in the High Court which gave a ruling on November 3rd 2016. That ruling said that the UK Government was not entitled to use its Prerogative power to trigger the famous Article 50 of the Lisbon Treaty enabling a member State to leave the EU. Instead Parliament alone is entitled to trigger the leaving process.

I hear that the UK government is already preparing a Bill for Parliament to do just that, should the Government’s Appeal to the Supreme Court in early December fail.

The Supreme Court is the highest Court in the UK and entitled to rule definitively on such matters. The Government believes it is right but is preparing for every eventuality.

The ruling has created a wave of protest from Leave campaigners, and Nigel Farage is reported as calling for mass demonstrations outside the Court when it sits.

Please note that this Leave voter seriously disagrees with such action. It could be taken as menacing; mass protest should take place elsewhere and at a different time, and I hope that the police forbid protest outside the Court hearing on public order grounds.

I share, however, the grave concern about the ruling.

Let me explain.

Lawyers for Britain have explained the legal and constitutional position on their website at

http://lawyersforbritain.org/referendum-article-50-case.shtml

They have also explained the general constitutional position in light of the Referendum result of June 23rd 2016 on their site at

http://lawyersforbritain.org/referendum-binding.shtml

Both these references are well worth visiting.

That explains the legal and constitutional view as to why the Ruling was wrong. But there are serious political implications as well.

Originally, the government had control of the exit negotiation process, including the timing of commencement  [scheduled to be actioned at latest by end of March 2017] and over the content of the how and what.

Parliament’s participation is due to come, anyway, in summer 2017 when a Bill to Repeal the European Communities Act 1972 will be introduced to Parliament. That Bill will be fully discussed by Parliament in the normal way, and its purpose will be to cancel UK membership of the European Union.

The government has already announced that the Bill will include provision to carry over all existing EU law into British law; that includes all sorts of legislation on various rights. Frankly, that is the only practical way to proceed. Any repeals or amendments can come later for proper, particular consideration if and where  Parliament considers that necessary. 

The moral and political pressure as a result of the June 23rd Referendum vote to leave means that Parliament will feel unable to refuse to pass this Bill. It could and may seek to amend it, but then it would be evident that they are tampering with the result of the Referendum. Repeal of the Act creating membership is the only logic of a vote rejecting the option to remain a member of the EU.

Now, however, the court ruling of November 3rd opens the way for Remain inclined MPs and Lords to raise questions over the negotiation process. Such questions will likely lead to delay, to confusion among the public and to putting conditions on aspects of the negotiations; they could  actually thwart leaving altogether. In effect – and this is what may Remain campaigners hope – they can undermine the Leave decision of the Referendum.

There are MPs who have already said that it is their duty to oppose Brexit because – in their constituencies – a majority voted to Remain members of the EU. That of course completely undermines the June 23rd vote and its overarching significance, reducing it to a mere opinion poll.

But the standard line coming from Remain campaigners, MPs and Lords is that Brexit is accepted in principle: we just need to work out the specifics of how and what. They are calling therefore for a so-called “Soft” Brexit in place of what they characterise as a “Hard” Brexit.

Soft Brexit entails remaining in the Single Market and Customs Union, paying certain dues, accepting certain EU rules , and allowing preferential migration between the EU and the UK.

That is, of course, a form of membership and is a compromise. It is a rejection of the straight [sometimes called “Binary”] choice between Remain and Leave. It is, in effect, a renegotiation of the terms of membership. It is not leaving.

As Prime Minister, David Cameron repeatedly stated that this was to be an “IN/OUT” referendum and that it was for good. The ballot paper we all voted on stated a clear, unambiguous option between two different states of being: Remain or else Leave.

No middle ground option given; no middle ground option really feasible. And everyone in the land understood clearly that this was in or out and that it was permanent. There was a common understanding. There can be no room for misunderstanding now.

However the Remain campaign has not stopped campaigning to remain a member of the EU. There are powerful forces at work which will not accept the UK departure because of

  • the serious reduction in EU finances which UK exit entails
  • the moral and political effects of the UK leaving, especially in raising the profile of the possibility of this in other EU states
  • the failure of the European ideal
  • the religiously blind belief that without the EU, Europe will be prey to war again
  • the importance of the UK as a market for EU goods [they could still come but they fear tariffs because they will have to impose tariffs on UK exports to them because of their rigid rules]

So we are dealing with people who will not accept the democratic verdict. They are people steeped in the mentality of the EU which regards disagreement with their world view as psychologically deviant and suspect; which regards itself as totally right and therefore entitled by whatever means to impose its will; which demands that the democratic process bow to their objective by repeating votes until the people get the answer ‘right’ in their eyes [this happened in Greece in 2015 and it happened in Ireland over the Lisbon Treaty which was itself a means of avoiding popular endorsement, being in fact the Referendum rejected EU Constitution of 2005 repackaged!]

Taking a historical perspective, having an interest in politics and having observed the way the EU and its sycophants operate, I predicted in these pages precisely what has happened: a Leave vote, followed by a sustained rearguard action to thwart that vote by the Remainiacs. [see https://expatforbrexit.wordpress.com/eu-after-june/ ]

Their propaganda knows no bounds – certainly not the truth! Just last Friday, Nick Clegg characterised Leave voters as self harmers when he said on Radio 4 news that “Hard” Brexit [ie actual Brexit] was economic  “self harming”. This despite several economic indicators since the vote having proved the experts tales of apocalypse totally wrong.

He also refused to answer the question as to whether Liberal Democrat Party peers in the House of Lords would seek to compromise or thwart Brexit by bringing amendments to the Bill to trigger Article 50.

That opportunity would not be open to them if the government can go ahead and trigger Article 50 in accordance with the vote by the people on June 23rd.

That is what it should do; and that is what the Supreme Court should enable it to do in view of the June 23rd Referendum result and in view of the plausible view expressed at

http://lawyersforbritain.org/referendum-article-50-case.shtml

http://lawyersforbritain.org/referendum-binding.shtml

Ray Catlin