The courtroom drama section of the Brexit saga is over, with Boris Johnson judged not-so-Legally Blonde. Parliament is back and rhetoric on all sides has gone bonkers, but the real damage was done earlier on through the constitutional aberration that is the Benn Act. It forces the executive to take orders from Parliament in negotiations with a foreign power and allows the EU to impose any deal it chooses in whatever timescale Brussels prefers.
This deeply controversial Act has caused much anger. It is disingenuous to pretend that calling the Act a ‘surrender act’ is what is causing the anger rather than the Act itself. After years of Leave voters being labelled racist, fascist or stupid, as well as labelling ‘no deal’ as cliff-edge, catastrophic and disastrous, it is more than a bit rich to label terms like ‘surrender’ or ‘humbug’ as unacceptably aggressive
Since the Government is now some 40 votes shy of a majority in Parliament it has been absurd for the opposition to refuse a general election or even a motion of no confidence. There is no precedent for this situation but fortunately the majority of the UK electorate seem to see this for what it is – an attempt to overturn a legal referendum result while avoiding a general election that Labour and the Lib Dems fear they would lose.
This week BfB focusses on the Supreme Court verdict, which Jonathan Sumption and other lawyers say introduced new law rather than being an interpretation of existing legislation. It used the novel constitutional principle of ‘parliamentary accountability’ to judge Boris Johnson’s prorogation unlawful. This was of course retrospective. The more qualified English high court judges and the Attorney General had ruled the action lawful when it was instigated.
If all of this was not exciting enough, the temperature is set to rise further once the Tory Conference finishes on Wednesday. The Government has said it will table a formal offer to the EU. This is likely to include some give on subjecting Northern Ireland to EU regulation. The DUP are said to fear election losses and to be desperate to avoid no deal. The sticking point for the DUP will be tariffs at the Irish sea and the Irish Government will need to move on this point to get a deal. Without a deal we face the horrendous thought of the Government being taken back to the Supremes to overturn their final efforts to leave on time.
We would also like to draw subscribers’ attention to an excellent report from Open Europe by Dr David Shiels on ‘Brexit and the Good Friday Agreement’. He concludes that ‘the backstop lacked democratic legitimacy in Northern Ireland and potentially undermined the role of the institutions established under the Belfast (Good Friday) Agreement’.
This week, BfB co-editor Graham Gudgin was on Canadian current affairs programme ‘The Agenda’, to discuss the Supreme Court verdict alongside Ashley Prime, a former British diplomat to Canada. You can watch the discussion here.
This Monday evening Al-Jazeera TV is organizing an interview with Richard Tice Chair of the Brexit party in the Oxford Union with Graham Gudgin on the panel. For those within reach of Oxford free tickets are available on this website.
Our other co-editor Robert Tombs has an opinion piece in this week’s Sunday Express in which he criticises the Supreme Court’s decision as blatantly political. He concludes: “Given their own actions, [the Supreme Court and the House of Commons] they have no ethical or logical grounds for objecting to the Government – the Crown – using any legal means to exercise its proper authority and carry out its popular mandate.”
On the website this week
The Supreme Court Judgment: a Very British Coup? By Jonathan Clark
Political and constitutional historian Professor Jonathan Clark concludes that the Supreme Court judgement on prorogation was a legal innovation and a further step of judicial decision-making into the realm of politics. It reverses the judgement of the eminent judges on the English Divisional Court and is based not anything as conventional on precedent but instead on judge-decided principles. The Supreme Court upheld the supremacy of Parliament, a nineteenth century doctrine with no strong basis. The idea of popular sovereignty expressed through referendums was ignored. The result he says is that the judiciary are likely to be diminished and calls will be made for political appointments to the Court.
“It reminds us that the Supreme Court itself was designed, presumably on the back of an envelope, by no less a constitutional authority than Tony Blair. There must now be a case for reverting to the arrangements that prevailed, to general satisfaction, before that unwise step.”
‘Our anonymous contributor reveals some of the media’s dafter objections to Brexit. Consistency is not required as secularists quote the Archbishop of Canterbury and former republicans become outraged at the thought that the Queen might have been lied to.
“There is no need to research or recommend anything difficult when you can get so much political and moral self-satisfaction from daily cultural class combat.”
Supreme Court against the people, by Danny Nicol
In the second of this week’s reports on the Supreme Court judgement, Professor of Public Law Danny Nicol argues that the Court’s reasoning in Miller-Cherry is less than compelling. The Court’s claim that its judgement had nothing to do with Brexit cannot withstand serious scrutiny and it acted in a partisan fashion as if it were the legal wing of Remain.
“If the Supreme Court really has such a touching concern for Parliament and its monitoring role, it should surely respect Parliament’s autonomy to keep the executive as accountable as Parliament, not the Court, chooses.”
Supreme Court: on Shaky Ground, by Sir Peter Marshall
Sir Peter Marshall, former deputy Secretary General of the Commonwealth and leading expert on multilateral diplomacy, argues that the Supreme Court were unconvincing in stating that their judgement was not about Brexit. The Court ignores the reasons why no deal is still an issue including the difficulties made for the PM by parliament and the way in which Brussels has played fast and loose with its own rules. The use of judicial power to try to thwart the biggest vote in British history represents an outrageous intrusion into politics by eleven individuals none of whom we can vote out.
“The judgement makes no reference to the stance of our European partners, nor to the added difficulties which it has occasioned throughout the negotiations. Hence [it] ignores the main reason why the question of “no deal” has arisen at all.”
A Country Under Attack, by Ed Robertson
Ed Robertson argues that MPs and members of the British establishment have colluded with Brussels to keep us in the EU.
“At this stage it seems only a General Election will allow our Government to take us out of the EU with or without a deal but, in the ultimate insult to British democracy, the Alliance has blocked this from happening.”
We are also on Twitter, posting articles and retweeting the daily events that bring Brexit to the fore in the national news.
This week Professor Jonathan Clark’s analysis of the Supreme Court verdict proved particularly popular on Facebook. The positive comments included that of Martyn Johnson, who wrote, “What an absolutely excellent essay. Thank you very much.”
How you can help
We urge our supporters to ‘take back control’ in our present confusion. There are thousands of you. Our MPs listen to their constituents. Write to your MPs. Perhaps send them copies of some of our articles (or links to them), especially when they are relevant to your local conditions – for example, in rural areas, on the threat to British agriculture. Better still, make an appointment to see them at their next surgery: they will take notice when people are lining up at their doors. Make you views known where MPs might be wavering, or where they are working to sabotage Brexit, especially in Leave-voting and marginal constituencies, which Richard Johnson listed in his recent article.
Do also keep reading our posts, and to tell others about us. Share links to our quality content so that others can understand how leaving the EU can be good for the UK economy and for our own democratic governance. We aim to educate our critics to think differently and more positively about the long-term impact of Brexit.
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An Oxbridge PhD Student
Dr Graham Gudgin
Economist, Centre for Business Research, Judge Business School University of Cambridge
Professor Robert Tombs
Emeritus Professor of French History, University of Cambridge