In my last post I discussed how the EU, aided by a vigorous UK Remain Campaign, will use time and well-judged leaks and statements to destabilise UK markets, reduce business confidence and undermine political support for brexit in the UK. The aim will be to persuade the British electorate to change their minds, possibly in a new referendum or perhaps after a general election held under adverse circumstances. In that blog, I mentioned that the reversibility of Article 50 would become a key plank of the EU’s strategy, and I predicted that the EU’s lapdogs within the UK Remain Campaign would seek to have the matter determined in the European Court of Justice.
Sure enough, today we see an article in the Daily Telegraph confirming my prediction. Jolyon Maugham QC is one of the key Remain lawyers in the recent High Court action and he has been unstinting in his opposition to brexit. He claims to be merely protecting the sovereignty of parliament but his actions and statements are unmistakably political rather than altruistic. His comments in the Telegraph confirm my worst fears and I would like to explain why.
The High Court ruling is important because it requires that Parliamentary approval is obtained before Article 50 can be triggered by the Government. However, the basis of its judgement touches on the key issue that will become the critical political focus for the next few years: the reversibility of Article 50. The ruling stated that the triggering of Article 50 required parliamentary consent because an Article 50 declaration cannot be reversed and so the very act of triggering it would result in inevitable changes to the law which can only be done through legislation and not by royal prerogative. Now Brexiteers might be comforted by the idea that Article 50 cannot be reversed but the matter will not end with this ruling even if it is upheld in the Supreme Court case on 5 December.
In fact, this ruling temporarily suits the Remain Campaign because the effect of a Parliamentary vote in both houses could be to introduce long delays especially if, as the Telegraph article suggests, the Regional Assemblies/Parliaments also have to provide their separate consent. Delays are the key to the strategy of making the UK electorate change their minds. The longer matters go on, then the more opportunity there is to disrupt brexit talks and foment resistance at home. In the worst case, an intervention by the Scottish Parliament could result in a massive constitutional crisis which could cause huge political instability and shake the foundations of our country to the core. The High Court ruling is only a temporary staging post, however. The Remain/EU strategy will only work if Article 50 can actually be reversed, and in this regard British court rulings will eventually become irrelevant as the reversibility of Article 50 is a matter of EU law and it will be decided in the ECJ. If you read the Telegraph article it is clear that this has been the Remain plan all along. It is ironic and sheer legal hypocrisy that the reversibility of Article 50 can be used in the British courts to support one phase of the EU/Remain strategy (delay), and then taken to a European Court to turn the idea on its head for the longer term EU objective.
There are some who suggest that the Prime Minister should not be appealing the High Court’s decision in the Supreme Court. I think there are 2 ways of viewing this depending on how much you trust her intentions. If she genuinely wants the UK to leave the EU then it could be sensible to get as many of the legal arguments out of the way before Article 50 is triggered as protracted court actions will be more toxic once talks are under way. Alternatively, it may be that as a weak Remainer, complexity and delay might suit her and it may eventually become clear that, contrary to her public statements, she is actually complicit in the EU’s strategy of keeping us in. At the moment she has the benefit of my doubt, but I remain open-minded.
The sad fact is that the legal machinations are completely beyond the control of ordinary voters. That said, a political battle of gigantic proportions is already under way and it is one that will determine the outcome of the brexit war and the complexion of British politics for a generation. Leavers must brace Theresa May’s spine and this will require mass overt action on the streets to remind all MPs and peers that not only should the outcome of the referendum be respected but that when the people are asked a question through a democratic medium then they expect their answer to be put into effect. It is not enough for leavers to sit quietly at home moaning until it is too late. The Remain strategy is already in play and they will marshall the full force of the establishment. We need to oppose it with all the vigour we can find because there is more to this than just brexit. There is a fundamental principle at stake.