The BREXIT Judges had no choice other than to interpret the law

magna-carta

The legal decision this week defended an 800 year old principle

After the appalling lies and distortions of the Referendum campaign including some from both sides the Brexiteers have come into full flood. Vainly I looked to see if it was a full moon which is thought to presage all sorts of madness but no – it’s a fairly new moon.

In the referendum campaign the Brexiteers fought for UK decisions to be made in the UK not by bureaucrats but by a sovereign parliament. That is precisely what will happen unless the Appeal Court overturns the 3 eminent judges who ruled on the Article 50 position this week.

The UK has a parliamentary democracy. That means there is a two level approach to the development of laws:

  1. Parliament makes It does it regularly by primary or secondary legislation

 

  1. The legal system through a series of judgements apply the laws.

There are obvious reasons for this. Any single law cannot be held to apply in every detail to every single circumstance in which it might be applied. So in some ways the legal system through court judgements interprets what Parliament meant in specific circumstances.

This is not new and has not been imposed on us by perfidious Europeans. It was forced on the King 800 years ago by the Barons in the Magna Carta declaration which we celebrated last year. This guaranteed all of us our rights in law and limited the monarch’s power to make laws without the assent of Parliament. It also ensured that our sovereign parliament was the place to decide things and not a dictator who was the Monarch or was using the Monarch’s powers.

That is precisely what happened in this case. Parliament when it passed the Act establishing the referendum could have made the referendum legally binding on Parliament and also in such circumstances allow the Prime Minister to commence negotiations with the EU in terms of instigating the Article 50 procedure. Parliament did not do that. So by attempting to ignore Magna Carta and initiate action using the Royal Prerogative which the PM effectively wields instead of the Monarchy the PM was effectively ignoring the Parliamentary system on which we have relied for centuries.

The comments on the judiciary by some newspapers were appalling. “An openly gay former Olympic fencer”, “someone from a Chambers who established a European Law firm”, were two of the charges which were levelled at the trio in the High Court. The description was actually very simple. They were the three most senior judges in the land outside the Supreme Court. It was also interesting to note that the three newspapers who led the charge are ultimately owned by tax dodging international corporations whose loyalty is to their own pocket and not the people of the UK.

We have a complete separation of powers in this Country. We have no judges appointed because of their politics. This is not like the Supreme Court in the USA where Judges are appointed by the President subject to their political beliefs. Here we do not elect judges as they do in many parts of America. Judges at all levels are appointed in the UK because of their legal acumen. If they are found to show political bias they are dismissed or disciplined.

I have no doubt that the appeal to the Supreme Court is being done for political reasons. Those with far more legal knowledge than I possess have made clear that the High Court ruling is clear, reasoned and sound. The irony is that the Government might in theory be able to appeal to a European Court if the Supreme Court again rules against them. I wouldn’t bet on it.

So this brings the decision making about Brexit back where it belongs. In Parliament. This will cause difficulty for two of the 3 main parties but not for our own.

The Lib Dem view is simple. The people voted 52/48 in favour of leaving. That decision must be respected BUT the people now need to be able to make a decision about what the effects of such a decision are. Having set off for somewhere they need to decide whether they like the destination. The number of people I have spoken to since June who have started off the discussion with the words, “I didn’t know Brexit meant…….!” are legion. That is why Theresa May’s words are simply foolish, “Brexit means Brexit”. Brexit actually means a number of possibilities of relationships with the EU and other Countries which Parliament and the people must decide on. The Liberal Democrats are quite clear and quite united on the way forward.

The Tories however are all over the place. There are basically three Cabinet Ministers responsible to the PM for BREXIT. It is quite clear that they have no common understanding of the way forward and each has been slapped down by Mummy May on at least one occasion. The chickens are coming home to roost in the Tory Party and the factions will fight each other.  That fighting has been dramatically started today with the resignation of a TORY MP in Lincolnshire. He was a man who had voted for Leave BUT was clearly totally discontented with the PM’s lack of leadership and direction since. The High Court decision will allow the Tory in-fighting to start again.

Meanwhile the Labour Party is in a worse place than the Tories. Liverpool Labour Cllr Paul Brant, a person who I personally admire, has done a blog about this. He points out the dangers to Labour of having Remain supporters in London and the other cities but Leave voters outside them. He warns of the fracturing of the Party with long-term consequences. In my view this fracturing is entirely the fault of a spineless Labour leadership. It is clear that Corbyn refused to take the moral high ground on Remain because he really doesn’t believe in it. Together we should have campaigned as we did in the 70s for Britain’s place in the World as part of the EU. Only that way can we defend our NHS; keep inward investment and ensure stability particularly for those in the poorest communities. Labour will now pay for the lack of spine of Corbyn and Co.

So the UK burns whilst May and Corbyn and their ilk fiddle. Never before has the Country needed clear and principled leadership. They are getting it from Tim Farron and Nick Clegg and the Lib Dems. They are getting at least part of it from the Green Party who are standing aside in Richmond Park to allow a joint candidacy against the Tory/UKIP Leaver supporter Goldsmith.

To paraphrase Nelson “The UK expects every man to do this day his duty”. I appeal to every MP, Lord and Councillor to pout the future of our Country before the future of their Party. Our nation needs confidence and direction. This will only be achieved by working together.

 

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About richardkemp

Leader of the Liberal Democrats in Liverpool. UK representative on UCLG Finance Committee, Executive Bureau and World Council. Deputy Chair and Lib Dem Spokesperon on the LGA Community Wellbeing Board. Married to the lovely Cllr Erica Kemp CBE with three children and three grandchildren.
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