You don’t have to be a lawyer to spot a problem with the law

One of the most frequent jibes levelled at those of us who have raised questions about the recent High Court judgment on Article 50 is for Remainers to say “You’re not a lawyer, are you?” The clear implication is that those who are not lawyers have no right to have a view on the law.

But you don’t have to be an historian to know that it was unlikely that the Duke of Wellington deployed Spitfires to give his army air cover at the Battle of Waterloo. And you don’t have to be a lawyer to spot a problem with the law. In this case, you just need to have a long memory.

Back in 1993, Lord Rees-Mogg took the government to the High Court seeking to stop ratification of the Maastricht Treaty. Lord Rees-Mogg contended three things:

1 – That the Social Protocol was improper under UK law;

2 – That the Government was using its prerogative powers to change the law without Parliamentary approval; and

3 – That the Government was transferring some of its prerogative powers over foreign policy to the European Commission without Parliamentary approval.

Lord Justice Lloyd dismissed all three contentions. He ruled that:

1 – The UK was excluded from the Social Protocol;

2 – The Government was free to use prerogative powers to agree any treaty it liked, unless Parliament had specifically restricted its powers beforehand.

3 – The Government was not transferring any prerogative powers to the Commission, but was exercising them by allowing the Commission to make decisions on the Government’s behalf.

With hindsight we all know that with regard to point 1, the EU introduced all the social chapter rules by the back door anyway. With regard to point 3, I can only comment that Lord Justice Lloyd was stretching words to the limit of their meaning.

It is the second point that should interest us here. Lloyd ruled that the Government could agree to any terms it liked in a treaty, unless Parliament had specifically said it could not. Since Parliament had done no such thing prior to the Maastricht Treaty, the prerogative powers could be used.

But now we are asked to accept the ruling in 2016 by Baron Thomas that the Government can not use prerogative powers to trigger Article 50 because Parliament has not yet had its say. But if Parliament has not yet had its say, how can it (as per the 1993 ruling) have specifically told the government not to use these prerogative powers.

Now Baron Thomas is no doubt a very clever man and a highly experienced judge. I have no doubt that were this put to him he would be able to come forwards with some very clever reason why – no doubt couched in proper legal jargon – black was white and white was black.

But for us less lawyerly folks, it really does seem that it is OK to use prerogative powers to enforce “more Europe”, but not OK to use prerogative powers to ensure “less Europe”. One law for the Europhiles, another for the Eurosceptics.

The Single Market explained (Part 1): the latest Leave Alliance monograph

The Leave Alliance, of which the Campaign for an Independent Britain is a member, has produced a further Brexit monograph: Leavng the Single Market – Part 1

Alternatively, a full list of monographs can be found on this page of the Leave Alliance website.

There has been much debate about “Hard” and “Soft ” Brexit and whether or not we should stay within the Single Market. As this monograph shows, the issue is considerably more complex.  It is not by any means a  light read, but an extremely helpful and detailed explanation of what the Single Market actually is.

Labour finally set to back Brexit

This article first appeared here on the Facts4EU.Org website and is used by permission.

Today the Shadow Chancellor will announce Labour won’t block Article 50

According to a private advance copy of a speech to be delivered later today, Jeremy Corbyn’s right-hand man John McDonnell will say:

  • “We must not try to re-fight the referendum or push for a second vote and if Article 50 needs to be triggered in parliament Labour will not seek to block or delay it.”
  • “It is time we all were more positive about Brexit, Labour wants to see an ambitious Brexit Britain.”
  • Labour will “embrace the enormous opportunities to reshape our country that Brexit has opened for us.”
If the advance copy of his speech is correct, this marks a major departure from Jeremy Corbyn’s stance a week ago. It also completely destroys the hopes of Remoaner MPs that Article 50 could be blocked in the House of Commons.

In the Commons this isolates the LibDem Remoaners, the SNP, and a small number of dissident dinosaurs on the Tory benches such as Kenneth Clarke and Anna Soubry. Brexit-deniers would then be a small minority in the Commons,unable to thwart any quick Article 50 Bill from Mrs May.

That then just leaves the unelected House of Lords…

Donald Trump, Brexit and the EU

As Ambrose Evans-Pritchard pointed out shortly before June 23rd, the European Union was always an American project. The US Central Intelligence Agency (CIA) devoted considerable money and effort to persuading the UK to join the project and then, two years after our accession, to ensuring that we stayed in when the first referendum was held. In this year’s campaign, President Obama did not need much persuasion to come to David Cameron’s aid and support the remain camp, although his threat that we would be “at the back of the queue” for any future trade deal with the USA rather backfired.

So what, if any, will be the implications for the Brexit process of the USA electing a President who spoke most enthusiastically about our decision to leave the EU at the time, calling it a “great thing” and  has recently referred to his victory as “Brexit Plus Plus Plus“?

On the face of it, it looks like we will have a major leader firmly backing our decision to leave the EU. We can presume that a President Hillary Clinton, whose comments on Brexit were much less enthusiastic, would not have done much to help us with Brexit, but will President Trump retain the enthusiasm he showed for Brexit on the campaign trail once he enters the White House?

It’s not that simple. Mr Trump has been called all manner of things, some of them not very pleasant, but “policy wonk” is not one of them. He is far stronger on rhetoric than detail and has had no experience of public office before – the first ever US President who has neither served in the military nor Congress.

He will therefore be very dependent on a team of advisors. Furthermore, the checks and balances of the US Constitution do not give him untrammelled power. At a personal level, even if he retains the links he has forged with UKIP’s Nigel Farage, this does is no guarantee that US foreign policy will shift decisively to favour and support Brexit.

The Trump campaign emphasised its commitment to rebuild the US manufacturing sector by repatriating outsourced jobs. Mr Trump also criticised a number of free trade deals, including the recently-signed Trans-Pacific Partnership agreement. On the face of it, the likelihood of TTIP, the US-EU Free  Trade agreement, ever being signed off looks pretty remote.

Even here, however, this summary of Mr Trump’s statements on Free Trade, largely made on the hoof, does not amount to anything resembling a detailed and consistent policy position. As far as Brexit is concerned, therefore, we can go no further than to say that he  will probably be more supportive of Brexit than his predecessor has been or Mrs Clinton would have been, but it would be premature to assume anything more.

Photo by Gage Skidmore

A letter from our Chairman:- the High Court Brexit case

Sir, HIGH COURT BREXIT CASE

People who have spent all their political lives undermining the sovereignty of this country and its Parliament are now appealing to the doctrine of parliamentary sovereignty to delay and frustrate the exit of this country from the European Union. These are people who would echo the sentiments of Ken Clarke “I look forward to the day when the Westminster Parliament is just a council chamber in Europe”

They have now been joined by senior judges, including Baron Thomas of Cwmgiedd, Lord Chief Justice of England and Wales. His Lordship is a founder member of the European Law Institute, an organisation set up for the “enhancement of European legal integration” – that is, the ever increasing subjection of our law to the laws of the European Union.

Surely he must be aware of the principle that no man should be judge in his own cause – “nemo iudex in causa sua debet esse”. Yet he ignored it when he decided to sit on this case. The maxim was firmly established in the case “Frome United Breweries Co v Bath”, in which the then Lord Chancellor made a decision favourable to a canal company whilst, unknown to the parties involved, he was a shareholder of the company. His decision was set aside. “This will be a lesson to all…tribunals to take care, not only that in their decrees they are not influenced by their personal interests, but to avoid the appearance of labouring under such an influence.” Perhaps this partiality in London is the reason for the High Court’s decision being opposite to that in Northern Ireland..

Even local authorities are more careful. I recall that a lady, who campaigned to preserve the old Derby bus station, became a councillor and was disqualified from voting on the matter because her campaign was ruled to be “an interest”.

Over decades, independence campaigners have approached the courts to oppose increased subjection to the EU. On each occasion, they were summarily rebuffed on the grounds that the EU treaties were matters of Royal Prerogative – beyond reach of the courts .

There are even Europhiles who fantasise about this case going to the European Court of Justice.

It is an activist organisation, dedicated to promoting “ever closer union”. In case c-274/99 the Advocate General stated “Criticism of the EU is akin to blasphemy and can be restricted without affecting freedom of speech”.

It is unlikely that the case will go there because the relevant EU treaty specifies that countries invoking Article 50 to leave the EU do so “in accordance with their own constitutional requirements” – certainly not something which the judges just made up!

Yours faithfully

Edward Spalton

This letter was sent to a number of local papers in the East Midlands area

The man responsible for last week’s drama has gone AWOL

Gina Miller may count herself lucky to have escaped being burnt in effigy at the traditional Lewes bonfire celebrations on 5th November, but, along with Theresa May, Boris Johnson, Nigel Farage and Donald Trump, an image of David Cameron, the man responsible for last week’s High Court ruling and its hysterical aftermath was duly consigned to the flames – and rightly so.

It is Cameron we must thank for the Supreme Court now having to determine whether Parliament needs to be consulted over the triggering of Article 50. There was never any doubt about the Scottish independence referendum. Cameron made it clear months before the vote was held that the result would be “decisive, legal, fair, irreversible and binding” and while Nicola Sturgeon is seeking to hold a second independence referendum at some point in the future, no one has sought to challenge the result of 2014’s poll.

Cameron seemed pretty confident the was going to win the EU referendum vote until the final hours before the result was announced, so why was this same clarity not built into the EU referendum bill?  Some people are now claiming that the vote was only advisory although a strong body of legal opinion insists otherwise and that the bill mandated the electorate to make the final decision.  There should never have been this ambiguity. During the campaign, it certainly didn’t feel like we were battling for an outcome that was only advisory. It felt more like a fight to the death which, thankfully, we won.

To prove the point, the Government’s infamous leaflet stated “It’s your opportunity to decide if the UK remains in the European Union” and added “This is your decision. The government will implement what you decide.” On May 17th, just over a month before polling day, David Cameron said, “I am absolutely clear a referendum is a referendum, it’s a once in a generation, once in a lifetime opportunity and the result determines the outcome.” Your author heard the Rt Hon Dominic Grieve MP state quite unequivocally in Marlow, Buckinghamshire on 6th May that if we voted to leave the EU, David Cameron would trigger Article 50 the following day.

This statement came as somethng of a surprise given the Government’s lack of analysis on how we would leave. A clip has recently been posted to the internet where David Cameron was asked if he would trigger Article 50 on 28th June, and he replied “yes, of course, absolutely.” Such statements don’t leave much room for doubt.

Of course, this isn’t what happened. Mr Cameron resigned and has since left the House of Commons. In other words, he has gone AWOL leaving Theresa May to sort out the mess he left behind, aided, it now seems, by the Supreme Court, who will be deciding next month what will be the role of Parliament in triggering Article 50. We can but hope that the Government will be vindicated.

Mrs May appears confident that this will be the case, ringing Jean-Claude Juncker, Donald Tusk and Angela Merkel the same day that the judges reached their verdict, to tell them that Brexit will go ahead as planned. Nonetheless, this widely-reported reassurance was not sufficient to dissipate an outpouring of anger against the three judges responsible for last Thursday’s verdict and Gina Miller, who brought the action. Mr Cameron’s culpability has largely been overlooked, so completely has his disappearing act removed him from public consciousness.

Now the dust has settled, one thing is clear:- last Thursday’s High Court ruling stops a long way short of derailing Brexit.

To reiterate an important point, the High Court ruling is not the last word. It still remains highly likely that the Supreme Court will reverse the decision. Mrs May may know something we don’t, but even if the government loses this case too, she still seems to have a few cards up her sleeve.

Part of the anger vented against Gina Miller and the judges is borne out of an intense distrust of our MPs and a feeling that they will betray the people and fail to respect the outcome of June’s vote. While it is true that the majority of MPs  supported remain and a few remainers,  such as Daniel Zeichner, the Labour MP for Cambridge, insist they will vote aganst triggering Article 50 because the majority of their consitutents voted to remain in the EU,  most MPs have accepted the result of the referendum. This is the feedback we have received from both Labour and Conservative sources.

No doubt the above paragraph will elicit a number of comments along the lines of how gullible can one be to believe these so-and-sos, but Brexit has provided a rude awakening for many Labour MPs representing traditional working class areas. It has exposed the huge gulf separating their constituents from the party which once claimed to represent their interests. For this reason, the parliamentary battle has largely shifted from whether or not the Brexit vote should be honoured to ensuring we get the best possible Brexit deal, with the debate focussed in particular on the Single Market. Labour MPs from Brexit-supporting constituencies in particular have faced up to the futility of opposing Brexit.

Of course, Parliament has two chambers and the House of Lords can amend legislation. With the upper chamber being stuffed full of europhiles, press speculation has centred around the possibility of their Lordships wanting a second referendum whereby the public will be consulted once again when the final Article 50 agreement is ready to be signed.

Of course, the Government can simply ignore the Lords’ amendments. David Cameron threatened to use the Parliament Act when they threw out an earlier bill for a referendum in 2014. Mrs May could invoke similar measures to overrule the Upper Chamber here too, especially as her statements have been quite unequivocal:- there will be no second referendum.

Given the sheer exhaustion participants on both sides of the referendum debate felt after June 23rd, we can be quite confident that there is little appetite to go through this gruelling exercise again. Opinion polls consistently show a majority against a second referendum among the electorate too. Let us, however, take a worst case scenario – and it is both the very worst case and very unlikely – if another referendum were to be called, we would be much better placed to win a second time round.

Firstly, we would have the government on our side. Although Mr Cameron’s performance was not seen as an asset to the remain camp, he certainly pulled all the levers at his disposal to encourage us to remain. Leavers were definitely the underdogs, yet we still won.

Secondly, he played on the disunity within the Leave community, including the lack of a coherent exit strategy. This time round, leavers will be defending an exit strategy produced by the government and containing plenty of detail. It may not be the preferred exit strategy of the entire Brexit-supporting community, but with Mrs May insisting thatOur laws will be made not in Brussels but in Westminster”, “We will decide for ourselves how we control immigration” and “I want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same here”, it is  quite clear that the final arrangement will see us leave the political project which is the EU. It may be only a holding position, but the main thing is getting out and this is what she intends to do.  It is far easier to work out how we can make Brexit “harder” at a later date than to make our initial escape seamlessly. All Brexiteers can surely unite around this concept.

Thirdly, although many local leave groups have disbanded, the contacts have been made and the groups could easily be reactivated if needed. Last week, I visited one leave group in Kent which has continued to meet and was in no doubt that its members would roll up their sleeves and spring enthusiastically into action if they were called upon to campaign for Brexit meaning Brexit.

Fourthly, the goalposts have moved. Many remainers who insisted that the economy would collapse if we left the EU have changed tack to saying it would collapse if we left the Single Market. In other words, they have inadvertantly conceded that life outside the EU but within the Single Market wouldn’t be so bad after all in certain circumstances. If Mrs May’s deal gives us access to the single market, as we strongly believe that it will, it will be very hard for these erstwhile remainers to row back and reactivate Project Fear.

Finally, the longer the campaign, the more people who will be made aware of the shortcomings of the EU. This is why Cameron decided to cut and run rather than go for a long campaign with an Autumn 2017 ballot. It was slow, back-breaking work to move undecided voters our way and time was not on our side, but in dribs and drabs, between us we changed many minds. The tide definitely moved in our direction as the campaign progressed. I have since discovered a few people in my circle of friends who voted remain but who, I am sure, could have been won over if there had been more time. If we were forced by their Lordships into holding a second referendum at the end of the Article 50 process, we would have two years to put the issue beyond dispute and I have no doubt that we would.

What is more, the EU seems to share that opinion. Unlike the Danish rejection of Maastricht or the Irish vote against the Lisbon Treaty, there are no pressures coming from Brussels for a second referendum. Right from the moment when the result was announced, the principal concern of the EU hierarchy was to prevent contagion.

Some, no doubt, will be glad to see the back of the country which has been the biggest foot-dragger in the EU since the 1970s, but even those who regret our departure seem resigned to its inevitability. At the last meeting of the EU Council, Mrs May was made to feel like an outsider. When she insisted that the UK would play a full role until the moment of Brexit, she was met with silence.  She was given only five minutes to talk about her position on Brexit and one  government spokesman summarised her experience of the Council meeting as “a very odd position…very different…from the one Cameron or Brown or Blair or Major had … She is on her way out and we are on our way out.”

In summary, it is vital not to let last Thursday’s court ruling unduly depress our spirits. Most people on both sides of the channel whose opinions count believe we are on the way out,  come what may. It therefore probably won’t be necessary for us to fight another Brexit referendum, but in this worst case scenario, even our fiercest enemies know that there will be many groups up and down the country like the one in Kent I visited last week who will once again rise to the summons that “England expects every man to do his duty”.