There have been few more astonishing legal rulings in British legal history than the majority judgment in Attorney-General & ors v. Miller & ors [2017] UKSC 5. With the greatest of respect the junk law they have handed down can only further diminish the respect in which our judiciary are held. With great respect, paragraphs 61-66 of the judgment are little better than gibberish.

For decades the judges have upheld the use of the Royal Prerogative to ram EEC and EU treaties down our throats, with a minimum of public or parliamentary consultation. We signed up to the Treaty of Rome using the Prerogative, without a referendum (that only came later, in 1975, two years after we joined).

For the majority to say that the Prerogative can be used by ministers to sign up to an EU treaty but not to withdraw from it, with the greatest of respect, reveals breath-taking intellectual dishonesty. The self-serving claims of the judges in the majority to have handed down a legal, not a political, ruling need not be taken at face value. This was a political judgment, pure and simple. The sad reality is that these judges want to keep the UK trapped inside the EU, as do the claimants, and have shown themselves willing to adopt any legal argument put in front of them, however absurd or nonsensical, in order to arrive at a result with which they agree.

It is noteworthy that the majority refer, with obvious sympathy, to statements by the notorious Edward Heath and Geoffrey Rippon, the UK’s signatories to the Treaty of Brussels. Heath and Rippon were exposed as German agents (Abwehr, then Deutscher Verteidigungs Dienst) by the courageous journalist Christopher Storey FRSA in International Currency Review in 2005. That the majority should cite such creatures, each of whom should have been executed for High Treason in World War II, speaks volumes.

For the avoidance of doubt I am not suggesting that the judges on the majority, or any of them, are traitors. Any good counter-intelligence officer however knows that expressing sympathy for men publicly exposed as traitors is a starting point. None of the judges on the majority has ever served a day in uniform, nor rendered any distinguished service to the Crown, in some cases unlike their parents. (Lord Sumption’s father was a great Hun-killer and did good work with HM Submarine Trident.)

The majority judgment is further sullied by repeating the lie, in paragraph 23, that a majority voted in 1975 to remain in the EEC. As we now know the votes were tallied fraudulently under the supervision of the German agent Phillip Allen (outed in my book Spyhunter), who was in charge of the ‘count’. As in 2016, the majority voted to leave. Judges have got to take care, with great respect, not to lie in their judgments. Even if the judges were naïve enough to actually believe the official figures, they should have referred to the 42-year old controversy over the integrity of the tallying. To state something in a judgment which is wholly untrue exposes a judge to accusations of bad faith.

The majority have further exposed themselves to allegations of bad faith by suppressing all mention of the Vienna Convention on the Law of Treaties, implying, in effect, that Article 50 is the only legal route out of the TEU. The falsity of that claim is exposed by the fact of the 1975 referendum, which was held on the basis, acknowledged by both sides, that the UK could unilaterally withdraw from the EEC. At no stage did either the government or the Yes campaign assert that the referendum was pointless as a No vote could not be acted upon by either the government or Parliament.

Reasoning is too strong a word, with respect, for the arguments in the majority’s decision. Much of it is padding, a well-known judicial technique for deflecting criticism of doubtful decisions, since MPs and journalists, where they can read, are usually too lazy to finish a lengthy judgment. I have read through the entire judgment, not just the ‘Janet & John’ summary trotted out for the media.

Although the majority pay lip-service to the principle of Parliamentary Sovereignty, even to the extent of citing the great Professor Dicey, the game is given away in paragraph 61. This is a monist decision, which agrees with the outrageous Factortame decisions and treats community law as an independent source of law, superior to our own. The United Kingdom, however, is a dualist jurisdiction. All monist decisions, including Factortame and this one, are automatically wrong.

Monism, of course, is incompatible with democracy. In all of human history there has never been a successful monist state, let alone a democracy. The majority decision, with respect, is unconstitutional, to the point where Parliament would be justified in dismissing the judges for misconduct in office.

In stark contrast the minority judgments, especially Lord Reed’s, command respect for their lucidity and intellectual rigour. The minority are clearly correct.

This case was nothing to do with asserting the rights of Parliament and everything to do with reversing Brexit. It is the height of hypocrisy for Ms Miller and her legal team to claim that they support the principle of Parliamentary Sovereignty when they argue that Steve Thoburn was rightly convicted and the courts can ignore Acts of Parliament passed after 1972.

The future of the Supreme Court is now in doubt, indeed it should be abolished, as should the fatuous devolution assemblies. The good news is that Parliament is unlikely to defy the will of the people, which would lead to the greatest constitutional crisis since the Abdication. Only a short bill will be needed to get Brexit rolling again.

Photo by jay galvin

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