Have you been entertained over the last month by many flavours of Brexit, “soft” or “hard” over the past months? We would have missed all that if article 50 had been implemented immediately. The ultra-cautious approach of Theresa May has allowed a full reconnaissance. The price is a lack of momentum, as everyone knows, permits legal arguments to hijack “due process”. It is now catch-22.
The Supreme Court judgement today spoke of a requirement for an act of Parliament to trigger article 50 because it will take away legal rights. It shows a whole lack of faith in the sovereignty of Parliament itself to believe our elected representatives might not pre-plan their replacements in time. That process was exactly what was scheduled for a full 2 years of negotiation after triggering article 50. So why is there the need for a pre-plan? Effectively the Supreme Court has said a “pre-nuptial” is required. You know, you want to marry Jane or John with all your heart…share everything…completely committed…but if it goes wrong then we have a pre-nuptial agreement. Is it worth the paper? Some will think so.
There is a role for pre-nuptials but is it the “thing to do” before every marriage? Can we look a referendum straight in the face again and not think but?
On the 9th of November I wrote to Michael Gove MP the following:
The presumption of innocence owes a significant debt to the provisions of the Magna Carta, specifically “The right to due process”. By far the most significant thing to have worked to limit the impact of Clause 39 of the Magna Carta is human-rights law, which brought the process of deciding what amounts to a presumption of innocence, or a right to due process, under the adjudication of the court itself.
And this is exactly what human-rights lawyers, like Bindmans LLP, have achieved. The “due process” in which The UK expects to negotiate leave of The EU will now be overseen by supporters of EU courts. What is so sovereign about that? Are we honestly convinced Gina Miller has fought her case, backed up by powerful and rich EU legal interests, to put our “sovereign” back into “Parliamentary Sovereignty”. I think not.
The Supreme Court judgement today gives the immediate impression it is “defending” us against a loss of something. The word sovereign is bandied about, especially the phrase “Parliament is sovereign”. It is as self-referencing as “Brexit is Brexit”. In our system the monarch is ‘sovereign’ and in a constitutional democracy The UK has a system in which the citizens exercise power directly or elect representatives. By definition a referendum is the exercise of power directly. So how do 11 Supreme Court judges, by forcing Theresa May to give the trigger back to our representatives, defend our sovereignty? They do it only by moving the democratic exercise of direct power (namely a referendum) back to representatives, not us.
This decision threatens a peculiar catch-22 for both our democracy and our sovereignty over the next few months and particularly approaching the exit point after two years debate. Whatever Parliamentary Act is now agreed in the very limited time available will cloud and risk poisoning Brexit. A pre-nuptial can ruin a couple’s chance of happiness. Try it!
“Brexit is Brexit” has been replace by “Parliament is sovereign”. The people’s referendum has been stolen by The Supreme Court. We should not underestimate the failure of Theresa May government to rebut this legal challenge over article 50. A “yes” vote in the EU referendum was assumed to lead to leaving The EU without additional scheming. So while her ultra-caution has gained Theresa May a full reconnaissance, the delay in doing so let legal arguments hijack our expected “due process”. This interference threatens the supremacy of the unwritten constitution which makes us British, beginning with the “Great Charter of the Liberties” drawn up at Runnymede on 10 June 1215 on the south bank of the River Thames. So who are these hijackers?
You need look no further than Bindmans LLP. As their corporate website says “We have a reputation for excellence and for being at the cutting edge of legal developments – particularly in relation to issues around human rights”. It is one of the 3 London law firms – Mishcon de Reya, Edwin Coe and Bindmans – which agreed to take up the case of Gina Miller which led to the Supreme Court decision today.
I place small political bets (maximum £25) on occasional outcomes. I am going to place a small bet Article 50 will not now be triggered until after March. I suggest, in defence of Brexit, Theresa May now revise the timetable for triggering article 50. Why not by the end of April or May? It would re-assert her authority and hamper those who are taking advantage of her commitment to a routine timetable. As in the “Life and Death of Colonel Blimp” we must avoid the pitfall of declaring, with rigid solemnity, “War Starts at Midnight”.
According to the novel Catch-22, people who were crazy were not obliged to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly. The Supreme Court decision let idiots hijack “due process” and stole the referendum. Now in defence of our democracy, where citizens exercise power directly, we must take a fight to the heart of the legal system itself.