Tag Archives: Mrs May

Don’t Blame the Judges, it’s the Politicians who are Idiots..

Yesterday the High Court ruled that the government cannot use Crown prerogative to give notice to leave the EU under Article 50.  Unlike most who are commenting on this, I have read the judgement (here).  Although I am no lawyer, the prose is clear and the point simple.

Firstly, Laws can only be made, amended or repealed by Parliament (i.e. both the House of Lords and the House of Commons).  In this context, a law is anything that affects the rights of a UK citizen.  However, the Crown (i.e. the government) can do things that don’t affect the rights of UK citizen without reference to Parliament, including entering into Foreign Treaties and going to war.  Now these actions may well affect the wealth, health and happiness of the UK citizens, but they don’t affect their rights and so don’t require Parliamentary approval.

Although our membership of the EU is by Treaty (currently the Lisbon Treaty) it also grants the UK citizen rights in UK law, courtesy of the European Community Act 1972, as amended.  Triggering Article 50 means that, absent any agreement with the EU to the contrary, the UK would leave in 2 years.  some of the rights granted in ECA 1972 would expire, and that therefore means that Article 50 cannot be triggered Crown privilege.  Hence the ruling.

Now, there are grounds for arguing that the ruling is wrong, or that the case should not have been heard. No doubt the government will make them on appeal. It may or may not win.  However, as we stand we have a population that voted to leave, a government that undertook to enact the result of referendum and a Prime Minister who is now hamstrung.  The situation is exacerbated by the bleating of self-interested politicians opposed to Brexit (and their acolytes in media and elsewhere) who are currently conflating the need for Parliamentary approval to trigger Article 50 with a line by line negotiation of an exit, or at least setting out the exit terms.

The ruling does not of itself require Parliamentary oversight of the exit process.  All it requires is an Act to trigger Article 50, accepting that doing so will cause the loss of certain individual rights (most of them are quite arcane or silly, like losing the right to elect an MEP as the main rights accruing to EU citizens are already incorporated in UK law).  Such an Act would probably get through the House of Commons, but it might stall in the House of Lords – although Mrs May could solve that by creating 200 or more Brexit peers.  She might also be able to invoke the Parliament Act.

However, all of this is going to take time, and that time is causing uncertainty which in turn is doing economic damage to the UK. It is also frustrating the will of most of the people and is showing in stark relief just how unfit our current Parliament is.  While it would be unprecedented for a referendum to be binding the Referendum Act 2016 could have expressly included wording to allow the use of Crown prerogative – as David Cameron clearly stated he intended to.  But perhaps such an obvious provision was left out on purpose. It remains a scandal that the entire government operated on the assumption that the vote would be to remain.  If it is the case that no consideration was given to how to leave (in a technical, legal sense) as part of the preparation of the Referendum Act then the cabinet of the time were fools, and their advisers incompetents.

While I can see the obvious attraction for Mrs May in winning an appeal, there is a significant chance that the government will lose it – certainly its performance thus far in court has been pretty poor. And it if loses it may lose worse.  I think Mrs May’s best course is to introduce a sort Act, defy anyone in the House of Commons to vote against it (as it is now government policy she can and must whip it).  The House of Lords, which you may recall remains in a state of unreformed idiocy, will then face the choice of obstructing the people’s will and that of their government, or gritting their teeth and passing it.

Tomorrow is the 5th of November.  As Parliamentarians and their advisers head off for their recess they should reflect upon the mess that they have created.

There is only one flavour of Brexit

Thanks to UKIP’s pugilists the party conference season has been more interesting than usual. Predictably the Labour party has gone navel gazing while Tim Fallon (who?) and the Liberal Democrats want a rematch on the referendum – oh the irony. Meanwhile some Tories and some commentators seem to have invented the “Hard” and “Soft” flavours of Brexit. Clearly there has been some weed smoking…
The facts are simple. The result was out. The EU bureaucracy does not want us to leave; nor do many of the member states nor a fair chunk of the UK government establishment. Their solution is to kick the can down the road and just keep talking, pretending the vote never happened.

The EU treaties provide for a simple exit, via Article 50. They do not provide for membership of the single market without the acceptance of free movement. While it is perhaps possible that the EU treaties could be amended to allow this, it is unlikely to happen in any fast time frame. As such a treaty change would probably require ratification by all member states it’s a reasonable bet that it would never pass.

So there is no point in discussing it. Which means that there is no “hard” of “soft” option on Brexit. We just do it. there are some minor discussions to be had within agencies such as Europol, but they are all minor and in most of them we hold the whip had – (“You want access to our intelligence? Then show us your own” etc.) With nothing to negotiate and nothing to agree, we could be gone in six months.

Now, while leaving the EU means leaving the single market there is no reason why the UK could not offer EU members the opportunity to export to the UK tariff free. Given that the UK is a major market for the EU the member states would be likely to rather want that. Particularly the Germans. (The top selling car in the UK is the Ford Fiesta. Made in German. Number 2 is the Ford Focus, made in Germany. In fact seven of the top 10 selling cars in the UK are made in Germany).
Of course, the UK is not a charity so we would request reciprocation – any tariff being charged on any UK export to EU would result in the UK charging tariffs on imports from the EU. The genius of this position is that if gives the problem to the EU to sort out with its remaining member states. While some Eurocrats may want to savage the UK it is unlikely that their paymaster, Mrs Merkel, will be able to survive allowing the EU to destroy the German car industry and prevent it from taking advantage of the UK’s open market policies.

And it does not require a treaty. The agreement would exist de facto, not de jure. Those who remember the Cold War should remind themselves that the entire country of East Germany was never recognised in English (and other) Law. Yes, we noticed their wall and fence. Yes, we prepared to deal with their armed forces and no doubt expended treasure upsetting their regime – but we did not recognise it as a country. In the same vein, therefore, we simply do not have to recognise the Single Market, just deal with it on tariff free terms.

We can adopt a similar approach to passporting, enabling our financial service industry to operate in the EU but outside their regulation. We just apply a higher level and offer the reciprocal to them. For example, we allow Deutsche Bank, BNP and the rest to continue operating in the UK under (effectively) EU regulation provided that NatWest and HSBC may operate in EU, as they do today. We can also point out that bank operations are largely dominated by the Basle conventions, which are voluntary and global, rather than the EU directives. London is the largest financial market in the world. Paris and Frankfurt don’t even make the top 10 and last time I checked most EU currencies and financial companies desperately need access to the vast pool of capital and expertise that exists in London. Again, we make the offer to the member states who can then instruct the EU apparatus.

Having thus solved the problem of Brexit and evaded the (alleged) downsides the government can then turn to a more serious problem.

It is appalling that there was no contingency planning in place to cover the possibility of a Brexit vote. This is an abject failure by the Civil Service. My understanding is that the Cabinet Secretary, Jeremy Heywood, was instructed to prevent any such preparations from happening by David Cameron, citing a similar (apparently) instruction issued by Gordon Brown in the run up to the Scottish Independence Referendum. It was felt, I understand, that making such preparations risked them leaking and demonstrating that the out option was viable.

The result of this is that since Brexit we have had no clear leadership, no action and no plan. This has directly impacted upon the value of the pound and indeed allowed the development of the hard / soft fallacy. This has done material damage to the economy and could even constitute maladministration – which is (broadly) the crime of deliberately governing badly. Mrs May has already had to remind the Civil Service and government machine that Brexit is Brexit and it will happen. She should now take them to task for their abject failure to prepare. “My political masters told me to do it” is not a defence if the instruction was clearly against the country’s interest.

The government can use the time thus saved to return to the very real problems confronting the country; the deficit, public sector productivity and the rest. They may well find it easier to find solutions now that Brussels plays no part in our law making.

Brexit is Brexit, out is out. Just do it.

Mrs May, it’s time for you to sort out the law for our armed forces

Friday’s Telegraph reported that, on Thursday, Mrs May told Defence Chiefs “to make every effort” to prevent abuse of the legal system by lawyers suing British servicemen over events in Iraq (and, presumably, Afghanistan).

Excellent start, and I hope that the Defence Chiefs immediately cease the current 1,500 investigations, consign them all to the shredder and redeploy the resources to defending the Realm.

However, it is not the role of the Armed Forces to regulate the operation of UK law.

The problem arises because of fears that if the UK does not investigate claims, they may instead be investigated by the UN’s International Criminal Court (although this has never actually happened). This has led the Attorney General, Jeremy Wright, to advise that ceasing the current inquiries might be risky. Mrs May needs to have a word in his ear.

She should start by pointing out that the ICC is a UN body that has less than unanimous support and membership. The USA, Israel, Iraq, China, Russia and India are all not signatories. Why is the UK? (Answer: some deluded concept of ethical foreign policy invented by St Tone). Perhaps we should leave.

She could go on to point out that the UK armed forces are regulated by the Armed Forces Act, passed every 5 years, last time in 2011 and a Bill is currently before Parliament. The Armed Forces Act makes any UK offence an offence under the act. Last time I checked, murder, detention without trial, rape and the rest were all UK offences. The point, therefore, is that the British armed forces are perfectly well regulated. Ask (ex) Sergeant Blackman, who is currently in jail for shooting a prisoner in Afghanistan, or those members of the Army who were prosecuted for failings in Abu Ghraib.

On that basis, she could suggest that Mr Wright mans up, and informs the ICC (and the world) that as far as the UK is concerned its armed forces operate to the highest professional, ethical and legal standards and are perfectly capable of maintaining them.

She might also invite him to note that while MPs have the legal cost of any action against them arising from their duties covered by the State, soldiers have a means-tested form of legal aid. So the MPs who sent them to war are safe from the financial consequences – but Tommy Atkins is not. Perhaps a change to the law is necessary.

Surely she will not have to remind him of the problems of double jeopardy, exacerbated by the evidential problems of dealing with incidents some time ago with an absence of witnesses. Or to point at the ludicrously expensive fiasco of the Saville Enquiry.

She could also point out that the majority of the actions threatened have been brought by two firms. One is already closed (due Legal Aid finding accounting problems). The other, Leigh Day, is under investigation for “irregularities” in the handling of some cases.

While she is at it she should also suggest that the Attorney General reminds the Law Society (the solicitor’s trade union) that the rule of law is not the rule of lawyers. Moreover, she could invite him to point out to them that if access to law is unaffordable, justice is threatened. Perhaps all lawyers should be required to perform (say) 200 hours work per year free, pro bono? Or perhaps Parliament, whose concerns included justice, the law and the economy, should set the rate for all lawyers.

She could end by pointing out that world class armed forces are very rare and hard to replace. Lawyers are three a penny…

NOTE – I am now proud and delighted to be a regular blogger about defence matters on The Conservative Woman http://www.conservativewoman.co.uk  where this post first appeared.  If you like this you may well like some of the other posts on TCW so click here and have a look