I expect the Supreme Court to block Brexit, effectively for ever

This week I've spent countless hours reading the written submissions to the Supreme Court in the Brexit Appeal.

As a result of that reading I expect the Supreme Court's judgement to block Brexit, effectively for ever.

Of course, the Court's judgement won't be expressed in such direct terms.

One of the unanticipated effects of the Referendum vote on 23rd June 2016 will be that the UK constitution will be changed for ever.

Expressed more precisely I expect that the Supreme Court's judgement on the Government's Brexit appeal will show that the UK constitution has already changed radically and that the UK consitution  is not what it has traditionally been thought to be.


The UK constitution will be shown to be radically different from what Theresa May and Nigel Farage assume it to be.

The so-called Royal Prerogative which Theresa May and David Davis seek to rely on will be shown to be an anti-democratic, unconstitutional, outmoded anachronism, although I'm sure that the Supreme Court won't use that terminology.

And the High Court won't come out of it too well either.

I expect the attribution by the High Court of supposed absolute sovereignty to the Westminster Parliament will be shown to be suspect and overly simplistic. The World has changed radically since the time of Dicey.

The historical notion of absolute sovereignty resting with "the Queen in Parliament" will, I suggest, be shown to be dead.

Of course, that notion was itself a political fudge which has lasted largely unchallenged for centuries.

The sovereignty of the Westminster Parliament is more limited that many have traditionally thought.

Sovereignty in the new United Kingdom is shared.

The devolved Scottish Parliament, Northern Ireland Assembly and Welsh Assembly now have a share in sovereignty.

I expect the Supreme Court to indicate that we won't be leaving the European Union without the consent of the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly.

The Lord Advocate argues in his Written Submission that a Legislative Consent Motion by the Scottish Parliament is required before Parliament passes any Act which claims to make an Article 50 decision.

If the Scottish Parliament votes against a Legislative Consent Motion we enter uncharted constitutional territory.

The situation in Northern Ireland is even more interesting .

In Northern Ireland sovereignty rests with the people.

In my submission to the Court which formed part of my application to intervene I briefly mentioned Section 1 of the Northern Ireland Act 1998.

1 Status of Northern Ireland.

(1)    It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2)    But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

In his written submission to the Supreme Court Raymond McCord beautifully argues that sovereignty in Northern Ireland effectively rests with the people.

Of course the elegance of McCord's argument goes far beyond the simple summary statement that I have just put forward.

I expect the Supreme Court to rule that that United Kingdom cannot leave the European Union without the consent of the people of Northern Ireland.

The effect of the expected recognition of the quasi-federal constitution of the United Kingdom is potentially very annoying for the Brexit Bullies.

If the Supreme Court rules as I expect it to then an English majority will not lawfully be able to take the United Kingdom out of the European Union against the wishes of Scotland and Northern Ireland.

The Brexiteers won't be able to do so because the United Kingdom already has a quasi-federal constitution.

Viewed from the perspective of a Scot who favours Scottish Independence, the likely judgement from the Supreme Court is a welcome step away from an English monopoly (or quasi-monopoly) on power which, for at least much of the time, undemocratically imposes English views on the other nations in the United Kingdom.

Will the anticipated Supreme Court ruling really block Brexit for ever?

In theory, No.

It's  theoretically possible that Scotland could, one day, have a Parliament which is willing to countenance Brexit. I don't expect that in my lifetime.

In Northern Ireland, will the people choose to re-impose a hard border between Northern Ireland and the Republic? I can't see it happening. Not in my lifetime. Not ever.

But, all this begs the question, "Will the Supreme Court rule as I expect it to?".

As someone once said, "Predictions are difficult, particularly with respect to the future".

So I could be wrong about what the Supreme Court is going to decide.

However, if the Supreme Court decides other than I expect it to then I think that appeals to the Court of Justice of the European Union (methodologically less than easy) and the European Court of Human Rights seem to me to be inevitable.

But if I'm right about what the Supreme Court judgement is going to be then, as the Chinese curse indicates we will be living in very interesting times indeed.

Will Theresa May resign? She can't go on endlessly repeating the fatuous "Brexit means Brexit", can she? If she doesn't resign, every time she attends the European Council she'll be laughed out of court. And surely even Jeremy Corbyn could have endless fun at Prime Minister's Questions about Theresa May's stunning ineptitude regarding Brexit.

Will Nigel Farage have a temper tantrum to top all temper tantrums? I think that is very likely.

It's a little like a divorce. You might want just to walk away because the relationship isn't perfect  but the Law says it's more complicated than that.

The same applies to Brexit.

The United Kingdom can't just walk away on the basis of an arguably unlawful Referendum vote on 23rd June 2016.

Theresa May's leadership bid will be shown to be a sordid act of self-advancing political opportunism which puts the country and the rule of Law at risk.

When will the Supreme Court rule?

Will it be January 2017 as many commentators expect?

Or will it be much later?

I've already asked the Supreme Court to refer the case to the Court of Justice of the European Union for a preliminary opinion of the CJEU.

See Article 267 requires the Supreme Court to refer the Brexit case to the Court of Justice of the European Union

It remains my view that the Supreme Court, if it is to act properly, must seek a preliminary opinion from the CJEU.

If that's the case then it could be late 2017 or even into 2018 before the Supreme Court issues its final judgement on David Davis's appeal to the Supreme Court.

So, will January 2017 bring us a Supreme Court judgement like the one I expect and the door will be slammed shut on Brexit, at least in the short term?

Or will the door be opened to triggering Brexit by the end of March 2017?

Or will the Supreme Court decline to rule definitively until such time as it has received the preliminary opinion of the Court of Justice of the European Union?

Section 2 of the European Union Act 2011 constrains the Royal Prerogative in the event of negotiated Brexit

Yesterday I submitted a formal application to be an Intervener in the Brexit Appeal at the Supreme Court.

Part of the basis on which I did so was my belief that I had identified a piece of UK Law that constrains the use of the Royal Prerogative in the event of a negotiated Brexit.

This piece of Law which, so far as I'm aware, has otherwise been overlooked is Section 2 of the European Union Act 2011.

Here is what subsection (1) of Section 2 states:

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

TEU is the Treaty on European Union. TFEU is the Treaty on the Functioning of the European Union.

Any successful Brexit negotiation must reach an agreement between the United Kingdom and the European Union.

Such an international agreement is a treaty .

Such an agreement both replaces TEU and TFEU (as the basis for the relationship between the UK and the EU) and also requires that TEU and TFEU are amended (including by deletion of mention of the United Kingdom from the text of TEU and TFEU)..

So that Brexit treaty (whether a "withdrawal agreement" or a "framework agreement") triggers the need for an Act of Parliament as expressed in Subsection (1)(b).

Any treaty which involves the UK leaving the EU inescapably removes limitations on EU competences of the kind expressed in Section 4 of the European Union Act 2011.

For example, if the UK leaves the Customs Union the EU can levy tariffs on Brtish goods.

The effect of that is that at least one further Referendum is required.

So, the effect of Section 2 of the European Union Act 2011 is that an Act of Parliament and a further Referendum is required before Brexit.

The High Court in its judgement on 3rd November 2016 indicated that an Article 50 decision and notification was "irrevocable" and that it couldn't be conditional.

Since the Act of Parliament and/or the Referendum required by Section 2 of the 2011 Act might reject the withdrawal agreement, the process is conditional.

I conclude that no Article 50 "decision" presently exists.

It follows that the Government cannot lawfully send an Article 50 "notification".

I expressed my line of argument at much greater length in my application to intervene in the Supreme Court Appeal, but this post should give you an indication of my thinking on this.

If I'm right about this then Theresa May cannot lawfully send an Article 50 notification in the present circumstances.

The "Instant Brexit" or "Nicola Sturgeon" Option

Be prepared to think outside the box herre.

Is there a way to square the circle and satisfy the demands of English Brexiteers and Scots who want to be independent and who want to remain in the European Union?

Conceptually, there is a very simple solution.

England (and Wales?) secede from the European Union.

The (rump) United Kingdom consisting of Scotland, Northern Ireland and possibly Wales remain as a Member State of the European Union.

Simple.

Well, not really.

If, as I anticipate, the Brexit process becomes increasingly bogged down in legal complexities the "Instant Brexit" option might seem an increasingly attractive possibility rather than a fairly crazy thinking-outside-of-the-box suggestion.

England seceding from the United Kingdom avoids (at least in theory) the legal quagmire that is Article 50 of the Treaty on European Union.

Imagine it, the SNP Members of Parliament cooperating with hard-line English Conservative Brexiteers to take us towards "Instant Brexit".

At this time of political turmoil I suggest you don't count out any possibility.

Phew! - My application to intervene in the Supreme Court Brexit Appeal is finally in

Yesterday morning I finally sent off my formal application to intervene in the Brexit Appeal in the United Kingdom Supreme Court.

You wouldn't believe the number of hours I've spent burning the "midnight oil" (actually the 2am, 3am or 4am oil).

The core of my application was a document I've labelled "Preliminary Skeleton Arguments".

I realise that I'm fighting an uphill battle. In part because I'm not a lawyer and in part because the Supreme Court seems a little closed minded to further interventions.

Louise di Mambro, the Registrar of the United Kingdom Supreme Court, put that to me in these terms: "the Justices are satisfied that all issues and points of view will be represented".

In other words, "Go away and don't bother us".

Perhaps immodestly I believe the Supreme Court Justices just might be wrong on that.

A key plank of my application to intervene is Section 2 of the European Union Act 2011.

If it applies, as I believe it does, then it seems to me that it's a game-changer.

For the moment I just have to wait and see if the Supreme Court is willing to grant permission for me to intervene or if the Court wants to turn its back on a key part of UK Statute Law which the High Court overlooked.

Article 267 requires the Supreme Court to refer the Brexit case to the Court of Justice of the European Union

I think Theresa May's timetable to send an Article 50 Brexit notification to the European Union by the end of March 2017 is dead in the water.

Why?

Because the Law requires the Supreme Court to refer the matter of the meaning of Article 50 to the Court of Justice of the European Union.

Here is what Article 267 of the Treaty on the Functioning of the European Union says:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings
concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or
tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment,request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

I've underlined the relevant parts of Article 267.

The Supreme Court Brexit case centres on the interpretation of Article 50 of the Treaty on European Union.

The Supreme Court is court of a member state from which there is no domestic means to appeal.

There is no doubt that the interpretation of Article 50 has been raised.

There is no doubt that there is no judicial remedy against a Supreme Court decision.

The Supreme Court should get on with referring the matter to the Court of Justice of the European Union  without further delay.

The Brexit Bullies: "If their IQ was one point lower they'd be plants"

The Indpendent has published an interesting interview with Michael O'Leary on the potentially serious implications for the airline industry of the proposed Brexit.

See
Brexit: UK will be ‘screwed into the floor’ in EU withdrawal talks, warns Ryanair boss

Among a number of serious points was a fabulous characterisation of Theresa May's Brexit Bullies (Boris Johnson , Liam Fox and David Davis):

If their IQ was one point lower they’d be plants

Labour MPs' warning about the risks of "Trainwreck Brexit"

Yesterday the Guardian published a letter from dozens of Labour politicians which cogently asserted that "Hard Brexit" would be a disaster.

Hard Brexit would leave British people poorer – Labour MPs

It seems that I'm not alone in thinking that the Prime Minister is taking us on a mad dash to "Trainwreck Brexit".

David Lammy: We have to fight for our future and our children's future

This article by David Lammy from June 2016 hits the nail right on the head about the fight against The Brexit Madness:

We need a second referendum. The consequences of Brexit are too grave

As David Lammy says,

We have to fight for our economic future, for our children’s future and for the country that we want to be.

We won: On Nigel Farage, George W. Bush and "success"

They say that a picture is worth a thousand words.

So, I guess, it follows that these two images are worth two thousand words.

Nigel Farage claims to have won.

I would like to suggest that he is being more than a little premature.

Please Mr. Ambassador-Elect think of George W. Bush who, along with Tony Blair, "won" the Iraq War.

Bush, too, got ahead of himself.

Bush and Blair conducted an illegal war. They were the grandfathers of Islamic State in the Levant (ISIL), also known simply as "Islamic State".

Farage promoted what I believe to have been an unlawful Referendum (more about that in a later post).

Bush and Blair tapped into a primitive hatred of modern, interconnected life. ISIL was one result. Many thousands in Syria are still suffering from the results of the instability which Bush and Blair unleashed.

Will Farage's referendum unleash a Europe-wide politcal tide, likewise tapping into a primitive hatred of modern, interconnected life?

What will Farage-generated instability look like?

Will that Farage-generated tide have some resemblance to ISIL?

Will the Farage-generated tide resemble the populist tide in Germany in the 1930s?

I fear it might. But time will tell whether such fears are justified or not.

If Farage gets his unsavoury way I fear that many thousands will suffer greatly across the United Kingdom and thoughout much of the European Union.

That's why I feel that I must, and I hope others will, fight against The Brexit Madness.

My future dependds on fighting The Brexit Madness.

I think yours does too.

And, in all likelihood, the future of your children too.

Think about it.

And think about how you can join the fight against The Brexit Madness.

The Brexit Madness will trigger constitutional questions which may shake the country to its foundations

They used to say that a week is a long time in politics.

In a climate where, today, the President-elect of the United States (how did that happen?) suggests Nigel Farage for post of British Ambassador to the United States it is next to impossible to exclude any event with certainty.

I expect the current Brexit madness to trigger constitutional questions which will shake the United Kingdom to its foundations.

Will Scotland leave the United Kingdom if England and Wales push on to Brexit?

Remember what today brought ... Will England and Wales secede from the United Kingdom? The English Brexiteers get out of the European Union without the 2 year timetable of Article 50. And Scotland gets independence (from England) and still stays in the European Union.


Will Nigel Farage lead a march of 100,000 people in order (whisper it) to attempt to intimidate the Supreme Court?


Will the Metropolitan Police ban the march on public order grounds?

Or will the Supreme Court judgement (whenever it may come) be accepted by the losing side?

Will Theresa May resign as Prime Minister because she has made such a pig's breakfast of taking forward the supposed "will of the British people" on 23rd June 2016.

With questions such as these floating around the next year in British politics could be very interesting indeed.