I’m sure the Daily Mail won’t mind my borrowing their headline! David Cameron and Theresa May between them may have managed to turn what should have been a fairly straightforward exercise into a full-blown constitutional crisis.
Cameron should have been true to his word and served an Article 50 notice on the morning of 24th June. The result was in, the die was cast and at long last we were on our way out of the evil EU, after 44 wasted years. Nobody would have gone to the Courts, business would have been given the clarity it’s seeking and we would have saved ourselves the best of part of two hundred billion quid.
May compounded Cameron’s disastrous error dragging her kitten heels, in a desperate effort to keep Remoaners like Anna Soubry from defecting to the sleazy LibDems – a party so sleazy that they have portrayed a by-election about a third runway at Heathrow as being about Brexit. There was never any prospect of either Cameron or May using the Vienna Convention, since that would mean a clean break. As Remoaners they want to try and find a way of keeping us trapped inside the customs union in order to help German exporters.
The result of this foot-dragging has been a disastrous court case, not just for the government but also the judiciary. There is no sensible prospect of the government winning its appeal unanimously. Lord Neuberger all but announced at the end of the turgid four-day hearing, two days of which was taken up by the Respondents’ counsel making cheap points in cheap suits, that he was in favour of dismissing the appeal.
Lord Neuberger’s a nice chap, with respect, but his pro-EU views came across strongly. Lady Neuberger’s forays on social media didn’t help. His Lordship should have recused himself, again with respect. He started the case with an ill-tempered and over-the-top ruling seeking to protect Miller and Dos Santos, although they don’t need protecting. Neither has been assaulted since trying to stop Brexit and since we Brexiteers believe in democracy, not political violence, there is no serious possibility of their being assaulted. There is no single, known instance since the first, idiotic British application to join the EEC of Eurosceptics resorting to political violence.
Although most observers are predicting a defeat for the government, I think they might just sneak it, by a slim majority. Although it may sound odd, since they are judges, some of the panel are actually quite bright, with respect. Several of them are even good lawyers, again unusually.
Good lawyers are rarely appointed to the bench these days, partly because in order to accept the principle of supremacy of community law in England, always assuming that you have not been along to see Miss Whiplash, you have to be a pretty poor lawyer. Every first-year law student with realistic ambitions to become a second-year student knows that Parliament cannot bind its successors, and that a later statute impliedly repeals an earlier one.
The arguments in favour of the government being able to use the Royal Prerogative to withdraw from the Treaty on European Union are overwhelming. Although the government’s own case was somewhat muddled, with respect, unsurprisingly since its legal team actually think that Factortame (No 2) was rightly decided (I’m not joking – they really do!), Lawyers For Britain demolished the Respondents’ arguments, if that is not too strong a word, with respect, for their facile propositions. Their points were so weak they fell by their own weight, but it was good to see them forensically dissected. Dr Quincy couldn’t have done a neater job.
The argument that you can use the Prerogative to sign up for EU treaties and directives but not to withdraw from them isn’t in truth a legal argument at all, but a political one. It sticks in the craw of those Eurosceptics who have valiantly sought to stop governments signing up to EEC/EU treaties using the Prerogative. None of these treaties was ever put to a referendum before being signed, nor has any general election ever been fought on an EU treaty, although they might have been referred to in the campaign. Each has been rammed down our throats, using the Prerogative.
Now that the worm has turned and we have a government that is at least half-heartedly committed to withdrawal we find that there are hitherto unsuspected limits to the Prerogative. Whatever they might say, in reality any judge going against the government will do so out of political motives. Their judgments will be political ones, not legal ones.
The reality is that Remoaners like Lord Pannick QC have elevated the European Communities Act 1972 to the status of a written constitution. Time and again this week they tried to argue that EU membership is part of Britain’s constitution, as though it was Britain which lost in 1945, not Germany. We are pro tem members of the EU, and whilst we are EU laws take direct effect in this country in preference to any Act of Parliament passed before 1972. That is all. For Miller and Dos Santos, who is by the way an alien (of the EU variety – nothing to do with extra-terrestrials), to argue that they are defending the rights of Parliament, when their own counsel asserted that the courts can trash Acts of Parliament passed after 1972 which conflict with community law is the height of hypocrisy.
The true position was set out in a confidential note to Edward Heath by the Law Officers in 1971 (see: law-officers-note-on-the-european-communities-bill ). The European Communities Act 1972 is an ordinary act of parliament, like the Dangerous Dogs Act. No less, no more.
The courts will need a long time to recover from this fiasco. Even if the government’s appeal is allowed the bitter memory of the shocking Divisional Court decision will last longer. The judges, with respect, have forfeited the trust of the country, as they did in the time of the French vassal Charles 1st. It took about 150 years for the judiciary to command respect again after the decades they spent supinely caving in to Stuart tyrants. I think it will take about the same length of time for the courts to get back to the position they were in, in terms of public trust and affection, in the 1950s. They’ve got to stop handing down junk law.
As for devolution, that’s dead after last week. The sight of Richard Gordon QC asserting that Wales is an emerging state will have shocked MPs into realising the massive dangers of balkanising this country. The devolved assemblies will have to be scrapped, all of them. If that means scrapping the sordid Northern Ireland peace process, so much the better. We should never have negotiated with terrorists in the first place.