Friday, July 22, 2016

Brexit means Brexit means what?

While I've always been for 'Leave' as far as EEC/EU is concerned, I sometimes sound as though I'm more of a 'Remain' man. Mainly because I've tried to point out just how difficult 'Leaving' is going to be. And I've always thought the timetable should be based on achieving the best conclusion, rather than some artificial timetable. Those calling for early invocation of Article 50 of the Lisbon Treaty either have not thought it through or want Brexit to fail.

Clearly developing trade links is a key part of any Brexit strategy. The UK needs to move fast. Big responsibility on Liam Fox and his team. There is absolutely no guarantee that the UK will have access to the single market. The price may be too high. The UK needs to develop effective trade arrangements with the US, Canada, Australia and New Zealand, India, China, Columbia, Brazil, Africa etc.. Progress on these arrangements may well make it easier to reach agreements in Europe. But this is just one aspect of Brexit, and not the subject of this post.

Let us consider the law instead. If I have to choose one reason why I voted to 'Leave' it would be about how UK law is made. And it seems to me it's the behaviour of Court of Justice of the EU over many years which more than anything else delivered the vote to leave. Up with the CJEU the British people would not put.

The majority of British people are committed to self-government, to parliamentary democracy and the prerogatives of the nation-state. Over many years, the EU has misused judicial power, and given every indication it intended to misuse it further. This is not about the European Court of Human Rights, which is often blamed and which may well not be effected. It is about the Court of Justice of the EU, which has become, in effect, a 'political court' - guilty of unacceptable 'overreach' pursuing the political objectives of 'ever closer union'. This approach to law is not British, and has been rejected by the British people. We do not want our Parliament to be effectively subjected to a foreign court.

Brexit will free the UK from rule imposed by the CJEU. She will recover parliamentary democracy, though remaining subject to the Human Rights Act and the European Court of Human Rights (which it should). In time Brexit will change the way our leading lawyers behave. Over recent years many have caught the European tendency to see common law as being secondary to law emanating from the EU. As a result of Brexit, we will see a change in how lawyers think about the British constitution. Parliament is sovereign (unless it knowingly agrees not to be), it is constitutionally entitled to decide on our laws, and the courts should faithfully uphold that principle. This principle, fundamental to Brexit, must lead to a rebalancing between the powers of the courts and the powers of Parliament. If not Brexit would not have been worth it.

I know lots of lawyers. And mostly I like them. But I fear they have become far too big for their boots. Since the referendum vote, I've received hundreds of emails from constituents asking me to agree with some Cambridge lawyer that the referendum result should be regarded as unlawful and should be ignored. Must admit I consider this to be utterly ridiculous - politically impossible. Others 'advise' that the vote should be just one of the considerations influencing Govt, because the referendum was 'advisory'. I'm afraid I thought that to be equally nonsensical - and hugely damaging to the British constitution if acted on. There are other lawyers arguing that an Act of Parliament is needed before Article 50 is involved. This looks like a simple delaying stunt. As David Cameron actually promised to do before June 23rd, it would have entirely lawful for him to invoke Article 50 on the 24th. And then we had 1000 lawyers writing to the media refusing to accept the decision of the public vote. They do not realise the destructive damage they would do to democracy, if we took the slightest notice of them. Thank goodness we seem to have a Prime Minister who grasps fully what the vote to 'Leave' meant.

I am likely to amend this when I re-read it tomorrow. I'm open to be persuaded as well if arguments are based on accepting the will and voice of the 17.4 million voters who were not fooled by the often outrageous promises of Armageddon if they voted 'Leave'. They did and it must be respected.


Richard W said...

This is where referendums get murky legal ground - it erodes Parliamentary Sovereignty. They have become a device used to make the British electorate think they are in charge when really they are not. It was an advisory referendum yes, legally not binding due to the principles of Parliamentary Sovereignty (The best bit about PS, is that legally, they could repeal any law they wanted to, even the Parliament Acts, Act of Settlement, Government of Wales Act, Scotland Act etc etc. on a normal legislative process.)

Politically the referendum is binding as I don't think any Government would want to stir up the 17.4 million people who voted to leave.

Hopefully Brexit can give the UK more clarity on parliamentary rights, it would be nice to even think that in the future we could even have judicial reviews on primary legislation but again, that erodes Parliamentary Sovereignty and we know how Parliament gets when you try and take its powers, look at the Human Rights Act where they can just recommend a law be changed if it is incompatible with the EU Convention on Human Rights.

I suppose in relation to Article 50 then they could just use the Prerogative which is fitting nicely into this topic as Article 50 is an executive function which would be done in Her Majesty's name by her Government.

Angel1964 said...

I was expecting a more thorough and insightful piece. This seems to be both churlish and very light on explaining or even understanding the complexities at play here. You claim that all efforts must be made to respect democracy, yet side with just 37% of the population; surely you could be more empathetic or at least reference the very valid concerns of the 16+ million of us, who also still have a right to be heard and responded to. I feel like you and the Government are like a kid in the playground with your fingers in your ears, singing "la la la".

And as for your point about the 'ridiculous promises of Armageddon', may I point out that it was your own Prime Minister and Chancellor, together with the majority of your own Party which were predicting negative outcomes, you have been a great defender/supporter of them, or was that just sycophancy on your part?

Finally, I would be interested whether you wrote this before or after the horrendous PMI index results were announced today, showing just how damaged our economy is already?

And, to end, when can I expect a response to the letter I sent 3 weeks ago, please?

Bril said...

I'm not sure any commentator can, after one month, judge whether the 'Armageddon' predicted by Remain will
or will not prevail. It will be at least 6
months before the markets settle. The telling factor will be GDP over the coming two decades, and how that influences our ability to develop as a nation. No one should forget the 16.8m people who voted Remain. There's much talk about not disappointing the 17.4m Leavers, but the difference between the two arguments was really a drop in then ocean. As for the law, I remain unconvinced that we will make better laws as a result of leaving the EU, and suspect that those who support Leave would rather we own our bad law making rather than having it imposed.

mairede thomas said...

Thank goodness 17.4 million people understood that within the EU state our own democracy had become fatally damaged. Don't worry Angel the PMI will bounce back next month. Prime Minister May can press the article 50 button when it suits us, no great rush. In the meantime we can get on with the initial work for creating other trade agreements with major economies around the world - countries who don't demand free movement for their populations as part of the deal. I notice we are now at the front of the US queue, together with our EU counterparts! and Australia, New Zealand. India, China etc are all talking to us about trade.

My faith in people has been rewarded - they have put democracy and other important matters above the amount of money in their pocket.