During the course of this splendid campaign, every Ponce in Christendom seems to have stuck his patrician nose about the parapet, sniffed the Great Unwashed and called on the waddling geese of Strasbourg to stand between them and us ruffians. Luvvies and musicians (acting and music being two former escape routes for we chavs now colonised by public school spawn) of course, identity politics social justice warriors (writing the most currently disadvantaged people around – white working class males – out of history, one gripe at a time) naturally. And Eddie Izzard! There have never been a greater number of people I’ve loathed who have been made to cry all at once.
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You might think so from reports from the usual quarters, including the Grauniad in a piece, which even by the low standards of legal waffle, is utterly devoid of anything approaching a reasoned legal argument. But from their point of view perhaps, job done. However, some heavyweight lawyers have weighed in with an opinion piece providing some arguments that Brexit would only be lawful if Parliament approved it. And you can imagine their concern that the clearly expressed will of the electorate might be ignored, why the BBC has even picked up this article, letting it be more widely known.
So that was all a waste of time then, and Mr Cameron has resigned for no good reason (from his pov), I hear no one say. Let’s look at this a bit, (btw my answer is ‘No’). Article 50 – The relevant provisions of Article 50 read as follows: 1 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. Article 50 is part of the Lisbon Treaty, and it is enshrined in law by an Act of Parliament (this Treaty was the one that Mr Cameron gave us that ‘cast-iron’ guarantee of a referendum on, until is was ratified, when it was ‘too late’ to have a referendum.) Looking at 1, this seems to me to leave the decision to withdraw to the member state, and for it not to be a matter for the EU, and nothing more. If a member state decides to leave, it need only follow its own requirements, i.e. the EU does not presume to over-ride any such mechanism, fair enough, and the decision itself must be lawful, lest a would-be dictator seeks to rush out of the EU on the way to mimicking Belarus. 2 sets out the mechanism for the departing State to notify the European Council. Nothing fancy there, a verbal statement could do it, but a handwritten letter would be polite. “Dear Donald, We are ducking out of the European Union in accordance with the terms of Article 50, this letter is our formal notification thereof, Chauzinho, signed ….”. And then a negotiation starts. Looking at 3, the Treaties shall cease to apply to the State in question etc. from the date of entry into force of the withdrawal agreement (whenever that might be) or, failing that, 2 years after the notification, unless the European Council unanimously* decides to extend this period (in agreement with the departing state) (*Pay attention folks, 50 (3) crops up below.) So if nothing is agreed to extend time, or if we don’t leave earlier, exit is automatic after 2 years. Perhaps the Chilcott committee will find a new task for the next decade or so, negotiating Brexit? The problem, it seems, is that the lawyers think that the Royal Prerogative is constrained by law, in that the Sovereign (on the advice of her Ministers) can do no wrong, but also cannot do anything that is unlawful such as exercising her Prerogative when Parliament has provided for it to be exercised in a particular way or with prior Parliamentary approval, in which case it is no Prerogative at all, of course. All very well, but the exercising of Article 50 is simply doing what ‘it says on the tin’, the right to withdraw is inherent in the Treaty, so exercising a right provided for in the Treaty is not (well it seems fairly obvious to me anyway) a breach of the Treaty or of EU law. One might ask, if Article 50 does not allow for withdrawal, what on Earth does it provide for? But of course, it goes much deeper than that, the exercise of the Prerogative is constrained by Parliament and the law. The first line of attack is to argue that Parliament has to approve a decision to leave the EU. Is this found in 50 (1) “…in accordance with its own constitutional requirements…” Of course, the UK has no written constitution (moan the Lefties), but the referendum was held by authority of an Act of Parliament, and it was only ever ‘advisory’, i.e. it was legally a pointless exercise, as the outcome mandated nothing, whereas a 2011 Referendum did mandate a change in the law in the event of approval to changes in the voting system, by delegated legislation within the Act. So the Act that provided for this Referendum could have provided for a mechanism for its implementation by its own provisions mandating the Prime Minister to trigger article 50 in the event of ‘Leave’ prevailing, or by requiring another Act (which is necessarily subject to Parliament’s will) to trigger Article 50. The Prime Minister may ignore this Referendum outcome completely, of that there is no legal doubt. But then again, Parliament has constrained the power of the executive (i.e. the Crown as advised) in relation to treaties. Step forward The European Union Act 2011. This Act is a sort of ‘entrenching’ Act, which sets out various obstacles to Treaty modifications without a referendum in the UK, see section 4. Zzzzz…. But nowhere in this Act has Parliament put any brake on the exercise of the notification to leave the EU under Article 50! That right is left untouched, yet it could have been constrained. Furthermore, this Act requires a referendum on certain decisions by Ministers (i.e. the Crown) by Section 6. 6 Decisions requiring approval by Act and by referendum Try an espresso to stay with me, but furthermore, the Schedule to this Act sets out ‘Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum’. And here we find, at the bottom, Article 50 (3): So Parliament has set limits on what Ministers of the Crown may do in respect of the Lisbon Treaty, and has said nothing at all about the exercise of the right to withdraw requiring Parliamentary approval, it has left this area alone. Yet, if the UK were to partake in a decision to change the requirement for unanimity from the European Council when extending time during which the withdrawal mechanism applies to a departing state, this would require a referendum. Of course, triggering Article 50 and Brexit will still leave Section 2 (2) of the European Communities Act 1972 intact and in force, maintaining the supremacy of EU law in the UK after Brexit, because nothing in Article 50 dis-applying the Treaties would necessarily repeal that section of UK law. But that would leave a post-Brexit Parliament in the odd position of being bound by a predecessor Parliament’s decision to make EU law supreme and limit its power to amend EU law. Would anyone suggest that such a situation would last? The final arguments against Brexit may well be that to leave the EU is a breach of someone’s Human Rights, and is therefore void or should be stopped, or, alternatively that the decision to leave is a breach of EU law and therefore void. But of course, by the very nature of the EU, the UK’s courts, even if they were minded to grant an injunction or interdict against notification of Brexit (making it void) cannot constrain the EU or stop it from doing what it wishes, such as showing us the door. UPDATE 19072016: Court challenge to be heard in the High Court of England and Wales in October 2016. July 2nd, 2016 | 46 comments - (Comments are closed)
 Brave Sir Boris ran away Bravely taking to his feet (h/t commenter Pardone) July 1st, 2016 | 23 comments - (Comments are closed)
…indeed, praise him to high heaven. And then when (if) you become Prime Minister, make your first order of business to knife the idiot and fire him. Get rid of any REMAIN supporter in sensitive jobs, and the sooner you do it, the quicker the new order becomes the new orthodoxy. Anyone who was a party to Project Fear must go! July 1st, 2016 | 12 comments - (Comments are closed)
What’s on the menu when bishops gather for a Brexit breakfast at Lambeth Palace following Britain’s historic vote to leave the European Union? Egg on face. Mitres in sanctimonious sermon sauce. Burnt reputations on French toast. Honeyed Brussels rhetorical waffle. Side dish for guest invitee Primus of the Scottish Episcopal Church—haggis with a dash of hogwash. Breakfast includes two archbishops’ specials: a Sentamu special—sausages stuffed with pious platitudes and a Welby special: Eton mess. – Rev. Jules Gomes, pastor of St Augustine’s Church, Douglas, on the Isle of Man. I strongly recommend this article to our readers, for not only is it intermittently hilarious, it is totally on the money. June 30th, 2016 | 33 comments - (Comments are closed)
First, Brexit means Brexit. The campaign was fought, the vote was held, turnout was high, and the public gave their verdict. There must be no attempts to remain inside the EU, no attempts to rejoin it through the backdoor, and no second referendum. The country voted to leave the European Union, and it is the duty of the government and Parliament to make sure we do just that. May is currently the front-runner to be the next Prime Minister. June 30th, 2016 | 40 comments - (Comments are closed)
3.9 million sign petition to replay England vs Iceland It makes just as much sense as this: June 28th, 2016 | 23 comments - (Comments are closed)
Who would be the best candidate to be the next leader of the Conservative Party? Ideally, I would have preferred either of [Lords] Nigel Lawson or the Chingford skinhead Norman Tebbit. Both played distinguished roles under Margaret Thatcher, the first as her chancellor, the second as her “bovver boy.” At ages 84 and 85, however, Lords Lawson and Tebbit are now too frail to bear the burdens of the premiership. Fortunately, there are two outstanding candidates who are fighting fit and at the peak of their powers: David Davis MP and former Defense Secretary Dr. Liam Fox MP. Both are consistent long-term, hard-core Brexiteers. You will note that this list does not include the most-talked about candidate, Boris Johnson. Despite his jovial populist image and the entertaining clown act, Mr. Johnson did a poor job as London mayor, is often not on top of his brief and is unpopular among Conservative MPs. His Brexiteer credentials are also doubtful, notwithstanding the major role he played in the campaign. He sat on the fence for a long time before announcing which side he would support. In fact, it has just been revealed that before deciding which side to take, he wrote two letters to be published, one supporting Remain and one supporting Leave. He himself then admitted that he found the Remain letter more convincing, but opted to join the Leave campaign instead. There is a lingering suspicion that he had calculated that he had nothing to gain if Remain won, but if Leave won, Cameron would be out and he could swan in as the man who had saved the Brexit cause to become Cameron’s obvious replacement. Mr. Johnson is, thus, an opportunist. Read the whole thing, as it contains some excellent analysis. June 28th, 2016 | 105 comments - (Comments are closed)
My friend Preston pointed me at what the Adam Smith Institute calls the “EEA Option”, which would apparently provide many of the free trade and movement benefits of EU membership without being in the EU or beholden to most of its rules. Certainly worth a read as people start contemplating what one would want the negotiated exit from the EU to look like. June 27th, 2016 | 42 comments - (Comments are closed)
There has been much speculation the government will simply ignore the LEAVE result of the Brexit vote and not invoke Article 50 to start the clock running to leave the EU. So why do I not think that will happen? The one word answer: UKIP The slightly longer answer: Look how many Tory (and indeed Labour) MPs supported REMAIN, but their constituencies voted for LEAVE: i.e. most of England.
Now imagine come the next election, and we are still in the EU because the political establishment basically said “fuck you, we are just going to ignore the vote to LEAVE”. Does anyone seriously think UKIP will end that election with the one MP it currently has? In my opinion they could quite literally wipe out the Tories as a meaningful political party a la what happened to the Liberal Party by 1935 (and UKIP would probably take a nice big bite out of Labour in Northern England). I would rather that not happen, but if that is what it takes… That is why I think Brexit will indeed happen. Political self preservation. But I hope Farage has bodyguards. June 26th, 2016 | 49 comments - (Comments are closed)
The Liberal Democrat party, with its host of 6 MPs (much reduced in 2015) have pledged to ignore the Brexit referendum result and to campaign for the UK to remain in the EU.
Mr Farron, the relatively obscure leader of the party of heavyweights such as Cyril Smith, went on:
So, once the votes are counted, and if that ‘fails’, they are then ‘interpreted’ and in line with socialist logic, they don’t mean what a plain reading might fairly be taken to show that they mean. But is he not also saying that the vote was against him, as a member of the Westminster Parliament? I would like to contrast this attitude with that of General Pinochet, well-known ‘strongman’ of Chilean politics from 1973 to 1990, who held a referendum on his junta (well, him) continuing to rule Chile in 1988, and who respected the outcome rejecting his continued rule, with a little prodding perhaps from General Matthei, the Air Force member of the junta (and friend of the UK in the Falklands War), who called for the result to be respected. I suppose what we are seeing is a political auto-endoscopy by the Left, each trying to get further up their own arses than the other, with Nicola Sturgeon, Scotland’s First Minister indicating that the Scottish Parliament may have a veto on Brexit, a surprising interpretation of constitutional law from someone who is a solicitor. I am confident that the bulk of people will see through all this, and see the Left, in all their shades, for the totalitarians that they are. June 26th, 2016 | 56 comments - (Comments are closed)
And yet just because the establishment failed, that doesn’t mean the demos have won. Not fully, anyway. We must stay vigilant. For there will now be a concerted effort to thwart our democratic statement, to weaken it by calling into question its legitimacy. This is already happening. Apparently the demos behaved rashly. We ‘voted emotionally rather than considering the facts’, says Labour MP Keith Vaz. We were in the grip of fear, say others. Or we were making a xenophobic statement, they claim, overlooking the irony of their pontificating about prejudice while suggesting that the 17.5million people who said No to the EU, this vast swathe of people, is a tabloid-poisoned blob given to disliking foreign people. Demagogues ‘injected poison into the nation’s bloodstream’, commentators are already saying, the implication being that we were brainwashed, made mad by evil men. We know not what we do. We’re children. The efforts to rebrand this vote as a kneejerk thing, an emotional thing, a racist thing, are already underway. And others will no doubt argue that because the vote was very close, perhaps we shouldn’t take drastic measures; perhaps we should reform our ties with the EU rather than sever them. We must stand against all this, and insist that the people have spoken, and the people are sovereign, or ought to be. Indeed, that is fundamentally what the referendum was about: do you think Brussels or the parliament in London should be sovereign? The people voted for themselves. June 25th, 2016 | 52 comments - (Comments are closed)
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