The remainers are intent on murdering Brexit through the political equivalent of death by a thousand cuts. Delay is their great ally and there are plenty of individuals - politicians, media folk, academics, lobbyists, pressure groups, businessmen and much of the rest of the amorphous mass of the great and the good - who are willing to play the role of quislings in the service of the EU.
The decision by the High Court that the government cannot activate Article 50 to begin the process of the UK leaving the EU without first getting Parliament's approval is as shameless a pierce of politically motivated judicial activism as you could find. It has potentially created the type of constitutional clash which civil wars are fought over.
The Government has decided to appeal against the judgement. Permission has been given to bypass the Court of appeal and go straight to the Supreme Court. The case should be held on 5th December, but the judgement will probably not be given until the New Year. The Supreme Court has also given Scotland and Wales the right to intervene at the appeal hearing. This will broaden the matter to include the role, if any, of the devolved assemblies. A case brought in Northern Ireland at their High Court over Article 50 has already been dismissed as non-justiciable.
Senior English judges pushing their own political agenda? Consider this. The three judges involved were Lord Thomas of Cwmgiedd (Lord Chief Justice), Sir Terence Etherton (Master of the Rolls) and Lord Justice Sales. There is nothing in Etherton's past to say what his stance on the EU would be, but the other two definitely have question marks over their impartiality.
Thomas was a founding member of the European Law Institute, whose mission statement is the "enhancement of European legal integration". He has also served as President of the European Network of Councils for the Judiciary. It is reasonable to conclude that he is in favour of the UK's membership of the EU.
Sales worked in the chambers headed by the erstwhile Lord Chancellor Lord Irvine of Lairg and is a friend of Tony Blair for whose government he worked as First Treasury Counsel. As Blair and his government were firmly in the EU camp and Blair has recently been vociferous in denouncing the vote for Brexit it is reasonable to suppose Sales sympathies probably also lay with the remain side.
But even without relying on pro-EU evidence it is a fair bet that any senior member of the judiciary is likely to be a Europhile and emotionally opposed to Brexit because they come from a set of people for whom Europhilia is the norm. Moreover, is it really possible for anyone to be truly impartial when adjudicating on such a nakedly political matter?
After the High Court judgement it was widely thought that the passing of a bill permitting the activating of Article 50 would be sufficient to meet the Court's judgement that Parliament must agree to the triggering of Article 50. That would have been difficult enough bearing in mind the preponderance of remainers in both Houses of Parliament. But the position has become more fraught. Astonishingly, one of the judges scheduled to hear the Supreme Court appeal, Lady Justice Hale, has publicly pronounced that "Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement of the 1972 act... ." If the Supreme Cou,rt agrees with her the delay could be interminable. Whether what Hales has said would technically rule her out from hearing the Supreme Court appeal is not clear because she could argue she is merely putting forward a legal point to be considered, but it is an extraordinary thing for any judge, let alone one of the most senior in England, to comment on a case which is to come before them. It certainly adds to the suspicion that the higher judiciary is deliberately trying to block Brexit or at least prepare the ground for remainer politicians to manoeuvre for conditions which will tie the government's hands to be conceded by the government, the majority of whom are also natural remainers.
Not a simple matter of law
The London High Court judgement stressed that the decision had been made simply as a matter of law and the court took no position on the desirability of otherwise of the UK leaving the EU. But what did the judgement achieve in practical terms? It said that Article 50 could not be activated without Parliament voting on the matter, possibly by a motion, but most probably by voting on a bill. But if it was simply a matter of voting on the Article 50 activation what would be the purpose of such a procedure after the question of leaving or remaining had already been decided by the voters? It would be an empty act.
The answer is all too obvious. The judgement meant it would not simply be a question of Article 50 being given Parliamentary sanction. MPs and the Lords potentially would be able to delay any bill for a considerable period of time by placing amendments to the bill. If it was a motion the Commons could simply vote it down.
The Government has a small Commons majority, and could probably count on a handful of MPs from other parties to vote with them on this issue, but the House has a substantial majority of those who wish the UK to remain in the EU. There are 650 MPs in the House of Commons. Of those probably two thirds, including many Tory MPs, are remainers. Hence, numerically, in theory it would be very easy to defeat any bill the government puts forward to activate Article 50. However, it is dubious whether many remainer MPs would want to be in such naked and direct conflict with the voters who voted to leave by simply rejecting a bill or a motion which did nothing more than authorise the activation of Article 50. Instead they will try to engineer a situation whereby they will authorise the activation of Article 50 but only if the government accepts that they will negotiate within limits set by Parliament. The most probable limitation would be that any agreement with the EU must include the UK's continuing membership of the single market. It is wildly improbable that the EU would agree to that without insisting on free movement of labour, the UK continuing to pay its annual 'fee' and being bound by the regulations which attach themselves to the single market and subject to the European Court of Justice or a surrogate such as that which performs the same function for EFTA countries. In short, this would require the UK to sign up to all that voters rejected in the referendum and the country would remain within the EU in all but name.
All of this means that the High Court verdict was not a simple procedural matter but a legal direction which very obviously had effects which challenged the viability of the vote to leave. The issue which the High Court should have addressed is what would Parliament have to examine before Article 50 was activated? The question on the ballot paper was this:
"Should the United Kingdom remain a member of the European Union or leave the European Union?"
(The question was suggested by the Electoral Commission (EC) and accepted by the Government after the EC had judged the government's question biased in favour of remain. )
What was asked of the voter was beautifully simple: do you want to remain part of the EU or do you want to leave the EU?. To leave an organisation means precisely that, you cease to have either the benefits or duties which membership brings. There is no I've left the club and won't be paying my subscription any more, but I still expect to be able to come into the members' bar and use the squash courts. Hence, there is no point in Parliament having a vote on Article 50 because the referendum has already decided that the UK will leave. There is no hard and soft Brexit, just Brexit.
By coming down in favour of Parliament voting on the activation of Article 50 the judges went against both the wishes of the voters and what was necessary. Whether they did so out of bias is a matter for their consciences, but it is a fact that by acting as they did it opened a door for the remainers to cause delay and confusion in the hope of either getting something that is called Brexit in name but not in fact or of the UK eventually remaining in the EU after a second referendum.
The High Court found that the 1972 European Communities Act meant that the prerogative could not be used to activate Article 50. But as so often with legal judgements legal minds disagree. Here is David Feldman, Rouse Ball Professor of English Law, University of Cambridge, giving a contrary opinion to that of the High Court:
"The question in Miller was therefore, at root, whether the terms of the European Communities Act 1972 by necessary implication excluded the use of the Royal Prerogative to initiate a process which might, or in the view of the parties would, lead to the removal of EU rights from the domestic legal systems. The Court thought that the relevant constitutional principles meant that the onus was on the Secretary of State to show statutory authority for initiating the Article 50 process. I have argued that this was mistaken, and that there is no constitutional or interpretative principle which requires the 1972 Act to be read as excluding this prerogative power. The implications to be drawn from the Act are, at best, equivocal. In my submission, the foreign affairs prerogative is not excluded by statute, and requires no special statutory support for its use. Initially I thought that my view was self-evidently correct. The judgment of the Divisional Court shows that it is a matter on which informed opinions can differ... ."
It is also seems that the government made remarkably little effort to argue the case against justiciability of the High Court action (something which was successfully done in the Northern Irish High Court case) - the BBC reported that "It was quickly established on both sides that the issue was justiciable" - and failed completely to base their defence of the action on the basis of popular sovereignty. The government also shot themselves in the foot by admitting that the activation of Article 50 would result in the loss of some individual rights. This moved the triggering of Article 50 from being a simple procedure to something with the potential to trespass on statutes and hence beyond the power of the prerogative. The attorney-general Jeremy Wright faced strong criticism from some Tory MPs for what they saw as ineptitude in the presentation of the government's defence.
The logic of referenda
Whatever the status of the prerogative there are also the logical implications of holding a referendum. Parliament voted overwhelmingly for the Act (316 for to 53 against) which authorised a referendum on EU membership. There was no question of it only being advisory because the Act which sanctioned the referendum contained no such a clause and politicians during the campaign did not say it was only advisory.
Apart from the fact that there is no mention of it being only advisory in the Act which legalised the referendum, there was plenty of evidence to establish beyond doubt that the intention of the government was to treat it as a vote binding on the government. The then Foreign Secretary Phillip Hammond opened the second reading debate on the Referendum Bill on 9th June 2015 by stating:
"This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017."
He followed it up with this:
"Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House."
The government reiterated the intention and status of the referendum when they sent a leaflet to every household in the United Kingdom. The page entitled "A once in a generation decision" ran:
"The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union."
"This is your decision. The Government will implement what you decide."
All that being so, logically Parliament surrendered its power to make decisions about leaving the EU after the referendum Act was passed.
Finally, the claim that Parliament is at present sovereign is clearly a nonsense because Parliament will remain subordinate to the EU and UK law subordinate to that of the EU until the UK has left the EU. The use of the prerogative is necessary to once again make Parliament sovereign.
The danger of betrayal by the government
An all too plausible scenario is that there will be months of Parliamentary debate of one sort or another, perhaps taking the country well into the New Year with Article 50 still not activated. At some point Theresa May says well there has to be compromise and agrees to attach limits to the negotiation her government cam undertake. These will almost certainly include membership of the single market.
Why is that plausible? Because May is a remainer as are most of her cabinet. Three of the four great offices of state are filled with remainers - PM (May), Chancellor (Hammond) , Home Secretary (Rudd) - while the fourth, the Foreign Secretary (Johnson) is a shameless careerist who could turn remainer at the drop of a hat if he thought that would improve his prospects of becoming PM. Such an outcome might well suit a majority of the Cabinet.
Already there are the ominous signs that despite the vote to leave attempts are being made to stitch the UK back into the EU. The UK has opted to go back into Europol and Boris Johnson is seeking to retain the UK as the host for the European Capital of Culture in 2023. The danger is that this type of piecemeal tying of the UK back into the EU may continue without adequate protest because the ordinary British voter may understandably not be aware of the significance of each individual hook which re-attaches the UK to Brussels.
It is true that two of the three ministers who have formal responsibility for the detailed management of Brexit, Liam Fox and David Davies (Boris Johnson is the third) - do have strong Brexit credentials, but they are second-rank ministers. Obvious choices of rock-steady Brexiteers to be involved at secretary of state level such as Bill Cash and John Redwood have been left out of the government.
There is also almost blanket support amongst opposition parties for resistance to leaving the EU. On the Labour side Corbyn has already announced that a commitment to maintaining the UK's access to the single market is the price for Labour's support for the Activation of Article 50. (This after saying on 24 June that it should be triggered immediately) In addition, a senior Labour MP Hilary Benn (a remainer) is chairing the Select Committee for Exiting the EU. Although he has said he will not try to block the activation of Article 50, he will still have a good deal of power to influence matters.
Most of the rest of the Commons is also opposed to leaving the EU. The Lib Dems have said their manifesto at the next election will contain a promise to rejoin the EU if the UK has already left before the election. The SNP and the Welsh Nationalists are both intent on either the UK remaining in the EU or having some form of special arrangement for Scotland and Wales to remain in the EU or some other close relationship.
But the Supreme Court case is not the only attempt using the law to delay and confuse the move towards Brexit. The Crown Prosecution Service stands poised to enter the Brexit fray, viz:
"Alison Saunders, the director of public prosecutions, is considering a complaint of 'undue influence' on the referendum by the Vote Leave and Leave.EU campaigns.
"The complaint centres around a claim that £350million per week could be spent on the NHS if Britain left the EU and a leaflet which read 'Turkey is joining the EU', along with assertions that 'Britain has no border controls whilst in the EU'."
It is truly extraordinary that those with power within our justice system are so pantingly anxious to get themselves involved. This complaint was not made by the police as is the normal way for a prosecution to be laid before the CPS but directly to Steadman who made the decision to consider the complaint on her own authority.
There are the irritatingly predictable suggestions from the media that "Theresa May will call a general election". This is no longer in her power. The Fixed Term Parliaments Act schedules the next election for 2020. Unless May would be willing to make something a vote of no confidence in her government and contrive to lose the vote, an earlier election would requires two thirds of the House of Commons to vote for it. That is 417 members out of 650. The Government would need all its MPs plus another 90 or so from other parties to vote for a dissolution of Parliament, something very unlikely because the Labour Party is in disarray and the SNP would gain nothing by having another election. There would also probably be quite a few Tory MPs who would be reluctant to risk losing their seats with only 18 months of the Parliament gone.
What does this solid mass of resentful remainers mean for UKIP and, indeed, every person who voted to leave on 23rd June? It means that the government must be harried all the way until Brexit in fact as well as name is achieved. It means that opposition parties must be left in no doubt that if they attempt to thwart Brexit this will have dire electoral consequences for them. It means that every individual MP with a constituency which voted to leave should tremble in their boots at the thought that if they attempt to delay the activation of Article 50 their constituents will eject them at the next General Election.
Robert Henderson blogs at England calling.