The Betrayal of Brexit
The Betrayal of Brexit
Nov 6 2016
You heard it here first! I was talking about establishment/German attempts to betray Brexit shortly after the vote. As I predicted there has been a desperate effort to keep the UK trapped inside the so-called Single Market, to allow European dumping of exports and labor on our more flexible and vibrant economy. We are to the EU what the US is to Mexico.
This week saw the judges weighing in, with an absurd and illogical ruling that the government can’t withdraw from the Treaty on European Union without primary legislation.
It is being reported here that the case was bankrolled by the notoriously anti-British George Soros, named by Dr Robert Kaplan in his very good book on Soros as a German agent.
The court, presided over by a committed Europhile, Lord Thomas, who very frankly should have recused himself, said in effect that the Royal Prerogative can only be used to accede to EU treaties, not withdraw from them. I was junior counsel to the late Leo Price QC in the early stages of the Rees-Mogg case, where the court upheld the use of the Royal Prerogative to sign up to the bitterly controversial Maastricht Treaty.
With respect to the court, the proposition that the Prerogative can be used to sign up for a treaty but not withdraw from it only has to be stated for its absurdity to be apparent. The ruling is internally inconsistent, as well as being inconsistent with earlier, binding precedent, such as the Rees-Mogg case. In one paragraph it says that Parliament is supreme. A few paragraphs later, the court says in effect that Parliament is not in fact supreme and that its statutes can be ‘set aside’ by the courts!
The Divisional Court also treated the Metric Martyrs case as rightly decided, which it wasn’t, and as a binding precedent, which it isn’t. The judges in Metric Martyr only came up with the ‘super-statute’ idea after argument was heard, reaching their decision in secret. What they should have done, with respect, was to relist the case for further argument. Had they done so I would have been able to point out that none of the cases they had come up with was in point, as none dealt with implied repeal.
We don’t have super-statutes in Britain, as we don’t have a written constitution, thank goodness (look at the mess the Supreme Court has made of yours!). It follows that community law in Britain could never be supreme, as Parliament remained free to pass legislation in breach of community law. In Metric Martyrs I relied upon the Weights and Measures Act 1985, which allowed the martyrs to sell in pounds and ounces, i.e. in proper measurements. The prosecution relied upon the European Communities Act 1972, which required the use of French revolutionary measurements, like the kilogramme.
Since the 1985 act was later, the 1972 act was impliedly repealed to the extent of the inconsistency. The judges got around this by refusing to apply the 1985 act and applying the 1972 act. In so doing, with respect, they acted unconstitutionally, as the courts are bound by acts of Parliament. Fortunately, since they didn’t hear argument on the point on which they decided the case, their decision wasn’t binding.
For the claimants in the Article 50 case to assert that they were defending the rights of Parliament, at the same time as saying that Parliament’s statutes can be ignored by the court, was the height of hypocrisy. Fortunately the government has exercised its right of appeal. The decision should be overturned by the Supreme Court next month. Although none of the judges on the Divisional Court was a particularly good lawyer with respect, the Supreme Court contains some of the finest legal minds in Britain.
The judiciary are now whinging about the savage political backlash, but what did they expect? Their decision can’t be justified on legal grounds, with respect, indeed it is barely reasoned at all. It was in effect a political decision. Having entered the political arena the judges will have to fend for themselves. Even the Lord Chancellor, Liz Truss, has refused to come to their aid, and rightly so. Judges should stay out of politics. When they become political, as they have on the EU, they risk losing the respect of the public and politicians.
The Vienna Convention
Theresa May is badly bungling Brexit. She didn’t want it, hasn’t thought deeply about it and wasn’t familiar with the arguments.
She’s also house-trained and over-dependent on her civil servants, including the hated and notoriously Europhile Cabinet Secretary, Sir Jeremy Heywood, whose knighthood was effectively awarded by himself, since the Cabinet Office controls the honors system.
She should have used Article 50 straight-away. Even better she should have ignored Article 50 altogether, as it’s a trap, and gone with the Vienna Convention on the Law of Treaties.
This implicitly allows withdrawal from a multilateral treaty on 12 months’ notice, and expressly allows withdrawal on three months’ notice only, when there has been a fundamental change of circumstances. The referendum result was clearly one of those.