"It is a period of civil unharmony. Rebels, striking from the High Court, have won their first victory against the evil Wannabe Empire. During the battle, rebel civilians managed to foil plans to the Empire’s ultimate weapon, the Royal Prerogative; a tool of the executive with enough power to destroy an entire country.
Pursued by the Wannbe Empire’s sinister agents, Keir Starmer, Mark Carney and Phillip Hammond race back to the office after the a50 judgement, custodians of the questions and authority that can save the people from economic disaster and restore sovereignty to the UK parliament…."
The start of this thread is deliberate to play up to the Remain v Leave thing but also to point out just how crackers it all is really and is increasingly being made out
Yoda once said: “Control. Control. You must learn control”. This is kind of important to the concept of taking it back. It seems the government might just be learning that ‘Taking Back Control’ means parliament and the courts get that control under the rules and law of the land rather than the executive being free to run away and go crazy about what it can – and can not - control.
Lets not get carried away by the ruling though. It does not stop Brexit. Nor does it save us from disaster. And the question of whether it really does give us a New Hope is still an open one.
That its worth remembering that Star Wars was still about a war and fight for freedom and Brexit is stacking up this way. And that the whole good versus bad thing is part of the problem.
In some ways its easier make it out as black and white and say Remain this and Leave that. Its wrong. Its not a fucking fairy tale. Its real life where things are much less black and white.
The ruling has provoked outrage from the right wing press. We are all very aware of this. And yet there are also key voices from Leave who regard it as nothing more than a tactical setback and see it as a positive thing for democracy and sovereignty. Voices not mentioned by the people plastering photos of judges over their covers. Today there has been the resignation of a Tory MP who voted leave who could no longer support the government and the way they were handling Brexit. He has been wrongly labelled by more than a few angry Leavers as being a Remain supporter.
We must not lose sight of this.
What the ruling does, if it stands, is change how Brexit will play out, not stop it play out. It does not remove the biggest barriers to Brexit. It merely forces those who have been trying to avoid many of these barriers and refuse to acknowledge them to tackle them head on. It limits the worst excesses of the right wing agenda by simply stopping abuses of power, not removing their power.
In essence it has forced the Brexit debate has been forced to shuffle a little towards the centre ground which is what May should have done from the off in order to build a consensus and win over support from BOTH Remain and Leave campaign.
So what has changed exactly?
Firstly, and crucially the ruling is pretty comprehensive and seems strong against appeal. That’s not to say that the government can’t win on appeal. It is just that they would need something pretty big to change it.
There is a strong argument to be made about why they are even thinking of appealing. Pressure has already mounted about the need for parliamentary scrutiny. If the government were true to their word then they don’t need the royal prerogative to invoke a50 for this reason.
It begs the question loudly about whether the use of the prerogative is primarily a political decision to benefit the Conservatives rather than in the best interests of the country. Using the prerogative is a shield and prevents people from seeing what is going on. The government claim it’s the EU they are trying to stop from seeing what is going on. Its not. The room the government has to negotiate and the cards they hold is so narrow and so few that the EU know every move the government can possibly make and can plan and act accordingly.
The stark truth is the cloak is to prevent the eyes of the UK from seeing what is planned and asking questions of it. The government are aware that they can not deliver on several of their problems. They are trying to spin it, exploit and manipulate the situation for their own political ambitions rather in good faith and in respect of the EU referendum decision. Which is quite incredible given the accusations levelled at those who voted Remain.
The principle of restoring the sovereignty of the country to parliament and British courts has been shown up as fallacy No1 and a shame.
So, can they reverse the decision of the court. Perhaps. Several constitutional lawyers say the government argued very poorly first time round. But it will now take something even more convincing to persuade the Supreme court that the High Court decision was flawed. May seems confident of a victory in the Supreme Court and has told Juncker in a phone call that’s what she thinks.
The big rabbit they do have, is to request a referral to the European Court of Justice to establish that a50 is reversible. Of course doing this seems unfeasible for a number of reasons – not least because of the irony of having to go to the EU because the UK courts didn’t come up with the ruling they wanted. But more because it changes the political dynamic of the next GE and sets it up to be about Europe alone and because it changes diplomacy with the EU. It also ramps up the stakes in terms of the threat of rebellions and no confidence votes being more likely. Nothing is beyond the rules of Brexit Farce and Hypocrisy though.
Secondly May’s personal authority, in particular, has taken a huge knock. She said that Article 50 would be triggered by the end of March. This is improbable now, especially if the judgment stands. The decision to even think about using the Royal Prerogative over Parliament raises questions about her judgement. And it is raised again by the decision to appeal as this may loose her even more time.
Not to mention its rather embarrassing to have to admit this to the EU. May has already phoned Juncker to say the UK is still on track for article 50 to be triggered in March which is a bold move. It could mean she has an even bigger climb down to make if the judgement does stand.
Her reaction to the ruling seems almost as if its personal and no10 has apparently come down hard on the attorney general for 'cocking it up'.
Thirdly if a50 does have to go through the Commons and Lords, it is unlikely to be invoked before late 2017 at the very earliest. It is far more likely to be in early 2018.
This also shifts the earliest date we will leave the EU until after the next round of EU elections in June 2019 and within months of the next planned GE in 2020. It also means the window in which May might be able to have an early GE (if she can get round the Fixed Term Act) is smaller and shifts to early 2018. Alternatively a forced early GE, as the result of a vote of no confidence, could lead to a proxy EU referendum 2 situation. Which is frankly, a bit of a mess and a headache for the Tories now.
It also means Heathrow is screwed as its going to clash with the a50 bill and potentially is going to face more legal problems as the most likely way to oppose it is likely to be through the courts using EU law on environmental issues, that ideally perhaps Heathrow advocates would like to repeal post Brexit to ensure it goes ahead. Especially since the government appears to ignored a report which says Gatwick was better for other reasons, and only a 1% increase in costs would wipe out the economic case for Heathrow.
Basically it would just mucks up May’s entire timetable.
Four, the ruling could well have implications for the ‘Great’ Repeal Bill. It could make it even more difficult to pass because of the constitutional implications with regard to the power of the executive and those pesky Henry VIII clauses. The a50 ruling is about the Royal Prerogative which is a separate instrument but some of the same principles about the role of parliament still stand.
Five, the ruling did not address the constitutional issues with Scotland. This is still a hurdle the government are likely to have to get over. The Scottish Government are now exploring this and whether to enter their own legal case.
Six, the ruling stated that the NI a50 case was ‘too broad’. This is fair comment. Their ruling also potentially gives strength to the arguments re: The Good Friday agreement with the difference between the power of the Crown with regard to international treaties but having no power over them in domestic law and the need for ratification via parliament. (And vice versa with their removal).
Seven, Mark Carney is going in Mid 2019. Which is now, very potentially, BEFORE Brexit. This is potentially a Very Bad Thing.
Eight, the right wing press reaction once again like May, questions the rule of law. This is concerning. And this position is being supported by the governments refusal to condemn it or acknowledge properly that they are appealing not because they believe the judges are biased but because they don’t think their case was presented well enough.
Nine, watch the NHS and how its handled. Two select committee chairs have now written to May on her not being honest about finances. The fate of the NHS is ultimately what public opinion will turn on. Don’t be surprised by a sudden bag on cash being handed out of nowhere.
And finally and once again in the words of the great Yoda.
“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering”.
I wish Yoda were real. Somehow I think life would feel much simpler.
(The Supreme Court will hear the government’s article 50 appeal in early December (I believe the 7th has been mentioned). In an unprecedented move, it is believed all 11 Supreme Court judges will sit, reflecting the importance of the case. Judgment may not be handed down until the new year.)