The Legal Impediment to Brexit

I suppose that I might as well add my twopen’orth. Well, at least I have read the actual judgement.

I don’t want to make sweeping allegations that the judges were dishonest: that they intended to bugger up the Brexit process. But it may be that they were happy to kick the matter upstairs to the Supreme Court. So why should they not look for, and find, good reasons for doing so? The easy way to do that would be to find against the Sec of State.

But that is not to say that the judges were dishonest. There are indeed constitutional matters of great importance involved and I do not blame the judges.

The judgement hardly touched on the referendum except to mention, in passing, that the result was ‘advisory’. The reason that it is advisory is that Parliament is the one and only Sovereign, and only Parliament can decide what is law.

But there is a problem with that which is Royal Prerogative.

We must here differentiate. Parliament is Sovereign as regards domestic laws – laws affecting the People of the UK. But Parliament is not Sovereign in other countries, so that Parliament cannot make laws which affect other countries. That is where Royal Prerogative comes in. The Queen, acting on the instructions of her advisers (the current Government), can make deals with other countries. But if those deals require domestic laws to be passed, then Parliament is the only body which can ratify those laws. Parliament is not obliged to ratify those laws, so that a ‘deal’ (aka Treaty) would not take effect unless Parliament agreed to pass those laws.

As the judges saw it, that arrangement also works the other way round. For the Queen to instigate withdrawal from the EU, Parliament would have to first agree that any domestic laws which the withdrawal would affect, would have to be either continued or repealed.

I do not pretend to understand the judgement with any certainty because it quotes section after section of the 1972 Act which took us into the EU and other Acts since. As I understand it, the 1972 Act permitted changes to domestic laws in accordance with requirements of entering the EU.

I am not sure that MPs knew what they were doing because, only three years later, in 1975, there was a referendum to decide if THE PEOPLE (!) wanted to stay in the EU or not. Perhaps I should be able to remember, but I cannot. What were the issues which required a referendum? I cannot remember. But note that there was no referendum about joining the EU in the first place. But there must have been ructions of some sort in 1975 about membership of the EU. [NB. The EU was then called the European Community] The People decide to remain in the EU at that time.

What we have seen, since then, is the UK Government enacting laws which emanated from the EU whether or not the UK Gov voted for or against those laws. Further, only a small number of people knew that the UK did not vote for those laws. We have recently seen what chaos the idea of ‘free movement’ has caused. Continental countries have long land borders which are easily breached, so free movement is legalising what already exists for all intents. The UK is different. It is a collection of islands protected by the sea. Our borders are not easily breached. In extremis, we could easily close the channel tunnel and stop ferries. But it would seem that our Government cannot do such things as a result of EU laws, which our Gov was obliged to pass, and which Parliament cannot do otherwise than approve. Some of us will remember Milton MP saying in Parliament that we had to accept some law or other because ‘the FCTC said so’. She got sacked not a long time later. But she spoke the truth. Parliament had given away its Sovereignty. Via the FCTC Treaty, it had forever put the British people at the mercy of tinpot Governments in far away places.

So I don’t blame the judges. They have said what needed to be said. Parliament, some years ago, gave away parts of its Sovereignty and to reverse that, Parliament must regain its Sovereignty. Note that the USA never ratified the FCTC Treaty. It pays nothing to the FCTC organisation, but, because it is the most powerful country in the world, it controls the WHO and the FCTC organisation. But it pays nothing.

So the matter will go to the Supreme Court.

I doubt that the Supreme Court will dismiss the referendum result so casually. In the UK, referendums are only recent events. Here is a list:

If you read the list, you will see that the referendums were about constitutional matters. For example, the People of Wales were asked, in a referendum, if they would be happy to have a Welsh Assembly making regulations rather than the Parliament of the UK as a whole making those regulations. The People of Wales agreed. In effect, that referendum was the only way that the UK Gov could surrender Sovereignty to the Welsh people.

All the referendums in the list concern Sovereignty and the transfer thereof.

The judges in the present case ignored all that. They were probably wise to do so. Only the highest court in the land, the Supreme Court, can decide such important constitutional matters.

I shall be surprised if the Supreme Court upholds the decisions of the lower court. The result of the Brexit referendum indicated the will of The People. That cannot be downgraded as merely ‘advisory’. No Government in the past several decades has ignored the decision of a referendum.

The UK will leave the EU. There is no doubt. Nothing can stop it. But there are grave uncertainties about detail. The judgement cited the uncertainties as regards expats living in other EU countries. It would be easy to say that they must look after themselves, but there is absolutely no reason that such mutual agreements about expats should not continue. Was there any problem about Brits deciding to go to live in France before the EU? There was not. Nor was there any sort of ban on French people moving to the UK. The only problem was about claiming benefits. But, somehow or other, masses of displaced persons have congregated around Calais, determined to take any risk to get into the UK. Why? France is a first-world country. Why do so many displaced persons want to escape from France? What is wrong with France? There is nothing wrong with France. The reality is that the French Gov wants to be rid of them. So much for harmony. The Brexit vote triggered the demolition of the Calais encampment. The French Gov KNEW that Brexit demolished any possibility that the itinerants camped in Calais could legitimately get into the UK. In that respect, Brexit had an immediate effect.

So what is the Supreme Court likely to decide?

It is important to understand what the argument is about. THE PEOPLE have decided to leave the EU. The processes involved in putting that decision into effect are what the court arguments were about. Regardless of what commenters might say, the result of the referendum is an instruction to Parliament to disengage.

In my view, that does not mean that every single agreement ceases to exist. All the agreements are between individual countries at base. The EU is, essentially, a clearing house – an arbiter. It has no authority at all. Juncker et al pretend to have authority.

The EU Parliament is a joke. It is not a Parliament at all. The charade of ‘elections’ means nothing, since the so-called Parliament has no power. Is the EU Parliament supreme? No, it is not. The Commission is supreme.

The Supreme Court is likely to decide that the referendum is SUPREME. Thus Parliament, as it is currently constituted regarding MPs who are for or against Brexit, is not SUPREME. THE PEOPLE ARE SUPREME.

Thus, the only way that anti-Brexit MPs can act honourably is to abstain from voting. Brexit WILL happen.

So, the shenanigans in court are irrelevant. The UK Prime Minister and her Cabinet, will negotiate agreements with the EU bosses – or will negotiate with individual States. What is important to understand is that the EU bosses do not have a leg to stand on. They are impotent.

So, Yes, Parliament is Supreme, but not as supreme as The Supreme Court.

We rely especially upon our judges. I do not doubt the integrity of the judges in this case. But they could not decide definitely, so the matter has to go to the Supreme Court. But that does not mean that the Gov cannot get on with making arrangements.

It seems to me that the Brexit vote has side-lined the EU Commission. The UK is no longer interested in the Commission. We have to talk to individual countries about mutual benefits. Sure, in due course, over a century or so, the mutual benefits might coalesce into a United States of Europe. As with tobacco control, it is those who pushed and pushed who created the problems, and they always get away with it.

That matter is worthy of a new post in due course.




4 Responses to “The Legal Impediment to Brexit”

  1. michaeljmcfadden Says:

    Good thoughts on the Brexit mess. Heh, I notice you used the word “ructions.” That was part of my normal vocabulary while growing up and it wasn’t until I moved out of my little Irish Catholic world that I began to see people looking puzzled when I used it. It’s evidently a term used to describe disturbances in Ireland about a hundred years ago, and my Irish grandmother used to walk into a room where my brother and I were fighting or making noise and she’d put her hands on her hips and glare at us and say, “What’s all these ructions going on here! You two behave yourselves!”


  2. junican Says:

    Good word, ‘ructions’! I too am essentially an Irish catholic boy on my mother’s side. My father was of Scottish descent. I didn’t know that the word ‘ructions’ was particularly Irish. But it is a lovely word to describe ‘turmoil’, do you not think?

  3. elenamitchell Says:

    About the best description of what has happened as I have seen. And at least someone else understands the border problems that France has.

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