Tag: Judicial-Activism

Brexit-Watch: Saturday 04 April 2020

Note: longer version of article originally published at The Conservative Woman on Saturday 04 April 2020

A weekend update on some recent key Brexit-relevant story headlines, choosing five which, while not necessarily meriting a full-length article, nevertheless warrant two or three paragraphs of comment, rather than merely a couple of lines.

(NB: (£) denotes article behind paywall.)

 

A Brexit delay could last longer than you thinkSpectator Coffee House

Stephen Daisley summarises what are merely some of the latest instances of – purely coincidentally, obviously – predominantly if not entirely Europhile and anti-Brexit opinion attempting to exploit the current coronavirus outbreak ostensibly just to ‘delay’ Brexit.

However, their argument has one major flaw.  Much COVID-19 modelling predicts that the current outbreak will subside, but only to be succeeded by others of (hopefully) lesser magnitude, in which case the world could then be in periodic coronavirus mitigation mode for a decade.  On that basis, the delayers’ ‘only for as long as it takes for us to deal with the current health crisis‘ mantra is exposed as the sham which, considering its sources, it almost certainly is.

One further point needs making.  With global economic activity depressed anyway by COVID-19, the anti-Brexit lobby’s alarmist argument against leaving without a deal because of the alleged adverse economic impact becomes much weaker. Tory MP John Redwood has, rightly, made the point that the complaints being made about disruption to supply chains relating to exiting the EU on either a Free Trade Agreement or a WTO-reversion No-Deal are already being experienced many times over in response to the virus.

A delay must not, under any circumstances, be allowed to happen; both Johnson & Gove must continue to resist siren calls for an extension to the Transition period from Continuity-Remainers desperate to exploit COVID-19 as an excuse to stop Brexit happening at all.

 

Should the UK stay in Erasmus+? – Briefings for Britain

One of the more risibly desperate attempts at anti-Brexit propaganda, during both the EU Referendum campaign and its aftermath, was the claim that even voting to leave the EU signified Britain’s automatic disqualification from participation in its youth-exchange programme, which has long been open to nationals of non-EU countries.

The details, as distinct from the fact, of that participation, fall to be considered as part of post-Brexit Britain’s future relationship with the bloc, not as part of its withdrawal from it.  Despite the Department for Education’s provisional commitment to a continuation, albeit on condition that it remains in Britain’s interests, a combined BrexitFacts4EU and Campaign for an Independent Britain report finds that the scheme is not meeting most UK students’ needs. Our negotiators should therefore be careful not to make too many concessions in other more vital areas merely to secure continued UK participation.

 

Post-Brexit EU to lose 49 million of its population by 2020Global Britain

Obviously, the precise effects of such a population shift northwards and westwards depend on its demographics, but with the major recipients in the population change being countries with relatively more generous welfare systems, it does not seem unreasonable to expect calls for a greater degree of welfare budgets’ centralisation and pooling at European level to intensify.

As it nears the exit, Britain must ensure that any negotiations with the EU r-27 over future migration rights take account of the likely existence of higher-population countries on  Britain’s doorstep, and also that it both restricts and time-limits any ongoing contributions it might concede as the price of obtaining a trade deal.

 

European law will hold sway for years to come, say senior judgesTimes (£)

A misleading headline from The Times, in that the judges themselves made no mention of ‘for years to come‘, but did warn that the power of the European Court of Justice, as distinct from the UK Supreme Court, to rule over questions of EU law, even in disputes between British companies, would continue until Britain’s final exit, which in legal jurisdiction terms, might not be until after the end of Transition.

It does, however, emphasise the importance of Britain’s EU negotiators not conceding any extension of ECJ jurisdiction after the end of the Transition period, in order for Brexit to re-establish fully the sovereignty of Britain’s legal system. It also stresses, once again, the absolute necessity that Brexit should not be delayed, whether by the deployment of COVID-19 as a transparently specious excuse or for any other reason.

 

Brussels parliamentary group calls on UK to seek Brexit extension Financial Times (£)

An entirely predicable demand for a Brexit ‘delay’ from the ultra-Europhile European People’s Party grouping in EU Parliament – from which, remember, Tory former Prime Minister David Cameron was obliged by backbench and grassroots activist/membership pressure to withdraw Conservative Party MEPs – and equally predictably backed by what the FT coyly describes, without naming them, as ‘senior British government officials’.

With the Eurozone crisis, already serious enough anyway before the devastating impact of coronavirus on the stressed economies of the bloc’s weaker southern members, becoming more grave by the day, it is likely to become the near-exclusive focus of Eurocrats and a considerably greater priority than concluding Britain’s exit agreement. This is merely the latest in a line of transparent attempts by those, both on mainland Europe and in Britain, who for varying disingenuous reasons wish to see Britain’s exit from the EU not happen.  The EPP’s demand should be unceremoniously dismissed. 

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Brexit-Watch: Saturday 14 March 2020

Note: Longer and updated version of the article originally published at The Conservative Woman on Saturday 14 March 2020

A weekend update on some recent key Brexit-relevant story headlines, choosing five which, while not necessarily meriting a full-length article, nevertheless warrant two or three paragraphs of comment, rather than merely a couple of lines.  (NB: (£) denotes article behind paywall.)

 

Don’t be surprised if this virus delays BrexitTelegraph (£)

From the moment COVID-19 Coronavirus appeared on the horizon as something likely to cause more than the usual winter virus disruption, its use as an excuse to justify delaying Brexit was probably inevitable. The infection potential of both non-essential travel and face-to-face meetings are the grounds most often cited, but it’s also been suggested that the Brussels negotiators may just unilaterally decide to suspend negotiations anyway. Purely for medical reasons, obviously. . . .

Both economically and politically, Brexit is the government’s Number One priority after the Coronavirus outbreak, and as the Prime Minister is not conducting them personally, nothing should be allowed to interrupt them. Meetings can continue via video-conferencing from sterile areas.  The texts of drafts of agreements or appendices can be exchanged by email.  If the EU’s negotiators refused to continue with them, then the PM must make it clear that no extension of the Transition Period will be sought, and that Britain will revert to WTO terms in the event that no deal is reached.

Had the Coronavirus outbreak occurred in 2022 or 2023, causing a global downturn one or two years after full-and-final Brexit, would anyone have seriously suggested reversing Brexit and rejoining the EU as a response to it?  Of course not.  Then there’s no reason to defer it now, especially as Britain remains under EU trading and other rules including the Common Fisheries Policy, and also subject to ECJ jurisdiction, until the end of the Transition Period, which the EU itself defines as ‘until at least 31 December 2020 (my italics).

 

Von der Leyen on virus: ‘EU will do whatever is necessary’EU Observer

Which may be: not very much, or not very much that makes a significant difference, anyway. The EU, at least as represented, in Angela Merkel by a lame-duck German politician, in Ursula von der Leyen by a failed German politician, and in Christine Lagarde by a French Eurocrat widely thought to be unsuited to her present ECB role, have by the latter’s admission yet to come together at all, never mind developed a co-ordinated response, let alone sold it to member-states. 

The EU’s institutional sclerosis, along with its lack of a practical either fiscal or monetary policy toolkit commensurate with its supranational pretensions, will almost certainly prevent it coming to either a swift, or especially effective, decision.  So far, for all its resolute declarations, it has dithered but actually done very little.  All that the competition-lawyer-pretending-to-be-central-banker Lagarde managed to do as Head of the ECB was to spook the markets.

The effect of that inaction is already being seen in individual member-states reverting to unilateral decision-making at nation-state level, or in Germany at even regional level.  Nation-state governments are re-asserting themselves and, more importantly, are being seen to respond to their citizens’/voters’ demands in a way that the EU either will not, or more likely institutionally just cannot.  Nation-state borders are back, as their elected governments reimpose them without even bothering to consult Brussels, such is the perceived urgency of protecting their own citizens.

The utility, even the concept, of pan-European supranationalism is being severely tested by Coronavirus.  Anti-democratic supranational technocratic government, open borders and free movement are all now effectively dead, which means the EU in its present form is quite possibly terminally damaged. 

As far as the Brexit negotiations are concerned, this should all strengthen Britain’s hand, and is another reason why the talks should not be allowed to be interrupted or deferred.

 

Macron orders closure of all schools in France and warns he may even shut the country’s borders to control Coronavirus Daily Mail

For the Macron who was once the Davos/Bilderberg globalist oligarchy’s poster-boy for both ‘enlightened’ government by supranational technocracy and wide-open borders, this is an embarrassing climbdown.  However, in the same broadcast as he used to announce it, he also warned against ‘nationalist withdrawal’ as a pitfall to avoid at international level in the fight against the coronavirus pandemic, so policy-wise, he appears to be all over the place.

With Macron preoccupied with trying to reconcile securing the French nation against the Coronavirus outbreak with maintaining his EU-integration credentials, and both against the backdrop of difficult French municipal elections this coming Sunday and the next, his influence as one of the Intransigents on the Brexit negotiations is waning.

 

UK’s antivirus measures disguise radicalisation of Brexit FT (£) 

A slightly hysterical article from the FT‘s Europe Editor, claiming that Brexit is evolving into a project far more ‘extreme’ than even Leave-voters wanted in the 2016 EU Referendum, merely because Britain’s negotiators are concerned to ensure that it achieves visible separation from the EU’s political, regulatory and legal structures.

Barber quotes Britain’s withdrawal from the EU Safety Agency as evidence of this; yet goes on to conflate EU-centralised regulation of air safety standards regulation with ‘pan-European co-operation’, which clearly it is not.  Regulation is not ‘co-operation’.  It is to achieve the latter that we need to escape the former.

Barber then bemoans the UK’s alleged abandonment of Theresa May’s commitment to the so-called ‘level playing field’.  But the EU has made it abundantly plain that it interprets that phrase as UK perpetual alignment with EU rules, despite having no say in them and how they are formulated.  It’s hard to see his article in any other light than a polemic against any kind of Brexit which isn’t in-name-only.  Even after all this time.

          

EU’s demands in negotiations with UK revealed in draft treaty Guardian

The EU appears to have evidently learned very little, and therefore changed very little.  The draft continues to insist on ‘level playing field’ rules for (all) British and EU businesses, and also in regard to state-aid.  It maintains its previous demand for the ability of the European Court of Justice to hand down rulings binding on British Courts, and ongoing regulatory harmonisation with EU laws as they develop in other areas, effectively binding the UK to EU legislation, but with no input into it.

On fishing, it proposes ‘long-term’ (NB duration not specified) agreements on access to British waters but with each side’s percentage allocation also unspecified.  On security and intelligence matters, it requires Britain in effect to guarantee its continuing application of the European Convention on Human Rights, despite its manifest flaws, with data and intelligence sharing to be withdrawn if it does not.

The UK is expected to reject most of this as unacceptable, and rightly so.  The prospect of exiting the Transition Period without any satisfactory deal, therefore, goes up another notch, as does, inevitably, the futility and counter-productiveness of any extension of the Transition Period.

This in turn must prompt the question of whether it is worth Britain persisting in this charade at all, especially if it is to be prolonged on some spurious pretext using the Coronavirus outbreak as a transparent excuse. Better to abandon it now, declare negotiations at an end, prepare for a WTO/No-Deal exit from the Transition Period, and focus our energies on ameliorating the Coronavirus outbreak in this country.

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Brexit-Watch: Saturday 07 March 2020

Note: Longer and updated version of the article originally published at The Conservative Woman earlier today, Saturday 07 March 2020

A weekend update on some recent key Brexit-relevant story headlines, choosing four which, while not necessarily meriting a full-length article, nevertheless warrant two or three paragraphs of comment, rather than merely a couple of lines.  (NB: (£) denotes article behind paywall.)

 

Brexit row erupts after Barnier accuses UK of planning to ditch human rights commitmentPolitics Home

In a typically disingenuous combination of red herring and attempt to assert EU extra-territorial jurisdiction over the post-Brexit UK, Barnier has accused the UK of ‘refusing to continue to apply’ the European Convention on Human Rights (ECHR) after full-Brexit. This is arrant nonsense.

The ECHR is the creation of the immediate post-WW2 Council of Europe, is enforced by the Council’s European Court of Human Rights (ECtHR) in Strasbourg, and is separate and distinct from the EU.  The latter is not even a signatory to the Convention, merely requiring new member-states to be signatories, and the EU has no jurisdiction over it.

It’s conceivable however that, once freed of the obligation to be a signatory to the ECHR by virtue of its EU membership, the UK could decide after Brexit to enact its own Bill of Rights (possibly linked to a written Constitution) and, as part of that, withdraw from either the ECHR in full or merely from the jurisdiction of its ECtHR.

As Lawyers for Britain‘s Martin Howe QC explains, there’s a compelling case for such a move.  The Strasbourg human rights court has come to mirror some unsatisfactory features found also in the EU’s own European Court of Justice, principally a tendency to judicial activism rather than interpretation, introduction into European human rights law of concepts not present in the original text, and the predominance of the Continental Codified, rather than English Common Law, legal tradition.

Barnier in effect wants the EU to have the power to direct the democratically elected government of an independent sovereign nation-state on which international treaties and conventions it should or should not sign up to. That is an outrageous demand that deserves to be dismissed out of hand.

 

Paris versus London: the clash of the financial centresJohn Keiger, Briefings for Britain

Having failed, in the immediate aftermath of the 2016 EU Referendum, to persuade many, if any, City-based European banks to move their London operations to Frankfurt or Paris, the French are now coming back, but cloaked in the EU flag, for another attempt.  The possibility that this is sabre-rattling as part of French domestic politics’ general background noise to the upcoming French municipal elections this month, where Macron looks likely to be embarrassed at least, can’t be ruled out.

Despite the European Banking Authority having made the move, London’s sheer size, global reach, expertise, power and capacity for innovation as an international financial centre compared to Paris suggests this will be a futile quest.  Even if this were not a factor, the far more onerous and restrictive, and significantly slower-deciding and less flexible, regulatory regimes covering both financial services and labour markets would surely be a disincentive.

The threat to withhold passporting rights from UK banks doing business in France looks similarly unlikely to succeed.  The French may have introduced this whole issue into the negotiating mix as a giveaway to be traded off in return for getting something else.

 

Negotiating deals with both the EU and the US will be tricky for Britain: but it does have a trump card Shanker Singham, Telegraph (£)

The overriding difference between the two sets of negotiations is this: that while both parties in the UK-US negotiation will focus on economics and trade, both parties in the UK-EU negotiation will not.  For the EU, this deal isn’t about economics and trade, but about politics, in particular, Brussels’ semi-existential political need to try and limit the competitiveness of an ex-member on its north-western doorstep, even at the price of harming its own member-states’ economies. That is bound to maintain, if not incrase, its tendency to intransigence.

Britain taking up its seat at the WTO this week, for the first time as an independent member in nearly 50 years, has sent what ought to be a powerful signal to Brussels that, if it continues to try to insist on setting both our regulatory environment and legal order after Brexit, then we are quite prepared to walk away and go WTO.

 

We must not allow the EU to bind our hands in trade negotiations with other partners Stephen Booth, Conservative Home

In what’s been appropriately described as a ‘multi-dimensional game of chess’, and despite the demands likely to be made on our trade negotiating resources and expertise, for Britain to conclude, or at least substantially conclude, as many overseas trade deals as possible during 2020, in parallel to the trade-talks with the EU, must be an imperative.

In macro terms,  one vital fact should not be overlooked. Time is not on the EU’s side. The Eurozone economy is suffering its slowest growth in 7 years. Internally, its rate of GDP growth continues to decline, while externally, it accounts for an ever-diminishing share of global GDP growth.

EU quarterly real gdp growth 2016-19

EU declining share global GDP growth

Seeing the UK reach trade deals with the parts of the world which are growing, not stagnating, is essential towards disincentivising the EU from continuing to insist on its absolutist level-playing-field on, e.g.,  state aid, environmental and labour standards, an approach which is intended, not so much as to facilitate trade, as to protect its own heavily regulated economies from competition.

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Boris’ Interim Report: Must Try Harder

PM Boris Johnson’s performance against the eight benchmarks set him on appointment has been mediocre at best  

Note: Longer version of the article originally published at The Conservative Woman on Wednesday 04 December 2019

At the end of last July, just after Boris Johnson had been elected leader of the Conservative Party and appointed Prime Minister, I tried to speculate on the general direction of travel which his government would follow, not only on Brexit, but on other key policy issues.

Would he follow the robustly anti-leftist, pro civil liberties, free-trade, free-market, tax-cutting rhetoric of his leadership campaign? Or would he actually turn out to be more in the ‘Wet’ One-Nation tradition of ‘liberal’-‘progressive’ Conservatism? To serve as a benchmark, I suggested eight key tests by which we might judge whether he would delight or disappoint us.

Now, some might say it remains too early to judge: that the 5 months he has been in office have been overwhelmingly occupied by Brexit to the exclusion of virtually everything else, and that only after a period of government when it was no longer the dominant, almost only, issue would it be possible to make a more accurate assessment.

Well, maybe. But on the other hand, we do now have the two documents which will define the Johnson premiership in its entirety: firstly, his revised Brexit Withdrawal Agreement and Political Declaration and secondly, the Conservative Party’s election manifesto. So with these plus the experience of the past five months as a reference, how has he measured up against each those eight tests?

Will he ensure, come what may, including if necessary by proroguing Parliament to prevent its 70 per cent-plus Remainer majority stopping Brexit, take us out of the EU on 31 October, on a WTO No-Deal if Brussels maintains its intransigence, and with Britain as thoroughly prepared for it as possible?

This article isn’t the place for a detailed dissection of the pros and cons of Johnson’s revised Brexit deal. For me, the most persuasive summary of it is the one which acknowledges that, while it is far from ideal, it nonetheless is a distinct improvement on its predecessor and so probably just about good enough to make it supportable. But although the answer to the test question is clearly “No, because we have still not left the EU“, a reasonable case can be made that this was not for want of trying. 

On the legislative side, right up until the moment it was dissolved in early November, Johnson was faced with a majority-Remainer House of Commons, including members of his own party, which was not only determined to thwart it and to leave no avenue of Parliamentary procedure unexploited – however arcane and devious, and however potentially constitutionally illegitimate – in pursuance of that aim, but was also resolved to deny the electorate a chance to vote it out and elect a fresh Commons.

On the judicial side, he was faced with a blatantly politicised and judicially-activist legal Establishment which, by ruling the Prorogation of Parliament unlawful was prepared in effect to re-write the Constitution by arrogating to itself the power to amend it by inserting its own opinion into the political process.

Will he take, or authorise Dominic Cummings to take, an axe to the higher reaches of the Whitehall civil service machine which has proved so unwilling to accept our decision to leave the EU, and so hostile to implementing it?

There seems to be little evidence of it. Despite the misgivings surrounding Cabinet Secretary Sir Mark Sedwill’s role, as May’ national security adviser, in the sacking of Gavin Williamson as Defence Secretary and informed speculation during the Tory leadership campaign that he would not long survive a Johnson premiership, he remains in place.

Although the Svengali figure of Olly Robbins who was May’s chief Brexit negotiator has left Whitehall, and the Brexit negotiating team was slimmed down, Johnson’s current Europe adviser is something of a former Brussels insider. While it’s obviously very useful to have someone familiar with the backrooms of Brussels, against that must always be the fear that he may have been institutionally captured.

Will he abrogate Britain’s accession to the UN Migration Compact, cynically signed by May largely under the radar in December 2018?

As far as I can see, he has not even mentioned it. In fact, the indicators appear to be pointing towards a significant dilution of his leadership campaign promises on reducing the scale and raising the quality of inward migration, despite the manifesto pledges about an Australian-style points system. Indeed, he has arguably retreated further.

In the Daily Telegraph of 14th November, the Editor of The Spectator, Fraser Nelson floated the idea of a Government amnesty for illegal immigrants. Given the close links between the magazine and Number Ten, I suspect it’s unlikely that the latter was wholly unaware of the proposal before publication. It could have been designed to test the waters of public opinion, or perhaps even to engineer an adverse reaction, so as to justify a harder policy line with which to chase ex-Labour voters in the Midlands and North.

The two main problems with such an amnesty are that, firstly, it rewards illegality – what signal does it send to the law-abiding migrants who have taken the trouble to establish themselves here legally? – and that, secondly, it acts as an incentive to anyone currently contemplating migration into Britain, illegal or otherwise, to do it before more robust controls are implemented.

In addition, and as Migration Watch’s Alp Mehmet explained at The Conservative Woman on 27th November, in a commentary of all four main parties’ manifestos, it is perhaps the Conservative Party’s, deferring to the financial strength of big-business on the one hand and the powerful Woke pro-immigration lobby on the other, which especially represents a betrayal of its Leader’s previous promises.

Will he instruct the new (Remain-voting) Defence Secretary Ben Wallace to unwind all the surrender to the EU of control over policy, rules and structures which govern the future of our Armed Forces?

Here the picture, albeit still mixed, is slightly better, although May’s deal was so egregious in this area that it never constituted a particularly high bar to clear.

As Briefings for Brexit’s and Veterans for Britain’s Professor Gwyn Prins’ comprehensive analysis shows, closer integration with the nascent EU Defence Union, even under Johnson’s modified proposals, still carries significant risks for future co-operation and intelligence-sharing with our non-EU Five Eyes Alliance partners, and although we do have an opt-out mechanism, this is exercisable only on a case-by-case basis.

Professor Prins makes a persuasive argument, however, that the overall geo-strategic objection to UK participation in the accelerating EU Defence and Security integration remains: that the project’s fundamental raison d’être is ultra-federalist and anti-Anglosphere in concept and purpose, being designed to detach the EU from the NATO and wider Atlantic Alliance. Remember, France’s Macron has declared NATO “brain-dead”, and implied that the EU sees the USA as among its own likely future enemies.

Will he abandon the futile drive for expensive Green renewable energy, concentrate on developing alternative energy sources that promise reliability of supply at lower cost, and formally abandon the Government’s ill-informed, scientifically-illiterate and economically-damaging commitment to net zero emissions by 2050?

In a word: No. Once again he has gone almost in the opposite direction. In arguably one of the most abjectly cowardly reversals of a decade-long policy seen in many years, Johnson has resolved to ban fracking, ostensibly in deference to what is a cynical misrepresentation and exaggeration of the “earthquake” risk, but actually because the Tories lack the political courage to oppose the well-funded Green eco-propaganda campaign against cheap, reliable energy.

As if this was not bad enough, the Tories have signed up to the same net-zero emissions target as all the Green virtue-signalling main parties, just at a slightly slower rate, with a dearth of consideration of the long-term opportunity cost of spending upwards of £1 trillion on attempting to retard, by a few months, whatever would almost certainly happen regardless.

Will he commit to rolling back substantial parts of Theresa May’s politically-correct, divisive left-‘liberal’ SJW agenda, like mandatory gender pay gap reporting, ethnicity pay disparity audits, and gender-change via box-ticking self-declaration? 

Johnson has been conspicuously silent on this since his accession to Number Ten, and the 64-page Tory Manifesto – long on worthy aspirations and anodyne platitudes but short on specific policy pledges which could be remotely controversial – which has been variously criticised as “defensive” and “safety-first” contains no references to these issues whatsoever. Given that this was the focus of a substantial part of the condemnation heaped on his predecessor, we have to assume that silence in this case equals acquiescence.

Will he guarantee to address the pressing issue of voter and electoral fraud, in particular the vulnerability of the lax postal-vote system to rampant abuse, and Leftist objections to making ID at the polling booth mandatory?   

Johnson pledged via the most recent Queen’s Speech to introduce mandatory voter ID to help combat electoral fraud – to a predictable chorus of specious objections from the politicians of parties which currently appear to benefit most from it, and their media cum quango-state backers – and this has been included in the Tory Manifesto, along with as yet unspecified measures aimed at “stopping postal vote harvesting”. This is at least a start, although much more needs to be done.

Will he address urgent constitutional reform, in particular the position of the unelected, anti-democratic House of Lords, the corrupt and cronyism-ridden Honours system, and funding from tax the current political activities of former Prime Ministers who, despite being rejected by voters, still want to remain active in public life? 

Not much, if anything, has actually been done in this area, though in fairness, little would have been possible with a gridlocked majority-Remainer, anti-Tory Parliament. The Tory Manifesto is more promising: it does at least pledge to repeal the disastrous Fixed Term Parliaments Act (FTPA). But both the role of the House of Lords and the relationship between the Executive, the Legislature and the Judiciary are to be referred to a new Constitution, Democracy and Rights Commission, which looks suspiciously like kicking the issue into the long grass.

It would have been much better to have adopted Lawyers for Britain’s Martin Howe QC’s proposal for a Restoration of the Constitution Bill to replace the current judicially-activist Supreme Court and repeal the egregious Benn Surrender Act usurping for Parliament the proper executive role of government, as well as repealing the FTPA.

On reforming the Honours System and curbing funding for the ongoing political activities of former prime Ministers, there has been neither mention nor action. 

Overall, then, Johnson’s is an underwhelming performance so far, notwithstanding the hype surrounding his “great new deal” and the constant “get Brexit done” soundbite. Those of us of a conservative – but not necessarily Conservative – disposition are, I think, entitled to start asking some serious questions about precisely where the Johnson-led Tories are going, not only on Brexit but on much else besides.

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Was this the week UK Democracy died?

Note: This article was originally published at The Conservative Woman on Saturday 28th September 2019

From the instant Remainer reaction of knee-jerk outrage when last Tuesday’s Supreme Court Judgment, ruling that the prorogation of Parliament had been unlawful, was criticised as a “constitutional coup d’état”, one always suspected that there was actually something in that criticism.

SCoUK delivers ruling on Prorogation

That the Supreme Court’s Judgment reversed the earlier verdict of the High Court that prorogation was essentially political and thus not justiciable – a verdict reached by a panel comprising no less than the Lord Chief Justice, the Master of the Rolls, and the Chairman of the Queen’s Bench Division, all of whom rank superior to Supreme Court Judges in the Judiciary – did nothing to ameliorate it.

As the week has gone on, that suspicion has grown. As one of the better analytical commentaries showed, the Judges took it upon themselves to rectify an absence relating to prorogation in the body of Parliament-made Statute Law by first arrogating to themselves the law-making power vested in the elected legislature, and then making it themselves in effect under Common Law. Previously, all constraints on the Executive’s prerogative power of prorogation were statutory.

Moreover, by effectively substituting its own judgment (of what constituted ‘good political reasons’ for prorogation) for that made by the Executive, and then evaluating the actual prorogation against its own criteria, the Supreme Court inserted itself into the political process. But as Lawyers for Britain’s Martin Howe QC pointed out, for a court to determine whether an issue of high government policy is good reason or not presents it with an insuperable difficulty. How can it know what was or was not in the government mind?

SCoUK judges constitutional coupThe  implications for the Constitution, already creaking from a Remainer Parliament’s tangible unwillingness to accept and implement the outcome of the 2016 EU Referendum, and democracy itself, are momentous.

As Spiked’s Jon Holbrook says, there is now no political issue on which the judges are not prepared to rule: if an exercise of the prerogative power to prorogue Parliament can be set aside by judges, then almost any political decision can be. The effect of which is, as Gerald Warner so trenchantly explained at Reaction, is, to all intents and purposes, to deprive Britain of a functioning government under a constitutional monarchy. In the words of the Daily Telegraph’s Philip Johnstone, Britain has become a republic with Bercow at its head.

2017 Remainer ParliamentWhich brings us back to our dysfunctional current Parliament. Having passed the Benn-initiated Surrender Act which, by requiring an Article 50 extension request be submitted should no deal be agreed with the EU Council meeting on 17-18 October, was effectively both an open invitation to the EU not to agree any deal, and a total shackling of both of the Prime Minister’s negotiating hands behind his back, what will it do next?

Self-aggrandising BercowI suspect Parliament’s Remainer-Leftist so-called Rebel Alliance will, with Speaker Bercow’s enthusiastic collusion, seize control of the Parliamentary agenda via Standing Order 24 and then, again using an accelerated procedure to ensure all three Readings in one day, amend the Benn Surrender Act (or Appeasement Act, if you prefer).

The amendment would be to bring forward, to a date before the EU Council meeting on 17-18 October, the date by which Boris has to come back to Parliament with a deal the Commons would approve. The effect of this, of course, would be to tie his hands even more.

The additional baleful consequence which is starting to be dimly discernible in the wake of the Supreme Court’s ruling is this: if (as I personally believe they have) its Judges have indeed carried out a constitutional coup d’état by arrogating more political power to themselves – by in effect inventing a convention that Prorogation is justiciable, even though Parliament has passed no Statute limiting or restricting Prorogation – then one wonders whether even Royal Assent to bring a Bill into law, or more crucially perhaps, Royal Assent to a dissolution of Parliament, might itself be justiciable.

The terrible spectre of, in extremis, a Remainer Parliament legislating to amend or repeal the Fixed Term Parliament Act so as to perpetuate its own existence, followed by the refusal on the advice of the Prime Minister of Royal Assent to it, being itself justiciable and liable to be overturned by a politicised Supreme Court, is no longer unthinkable. At that point, democracy is dead.

With this week’s Supreme Court ruling, mass-participation democracy has in effect ceased to be the foundation of our political society: it has become, instead, merely an obstacle to be circumvented by the anti-democratic, either those in Parliament or those with the deepest pockets and most influential connections, whenever they are defeated in a popular vote.

SCoUK Lady Brenda Brooch-SpiderThat the central political issue of our time is now that of The People versus The Establishment has become starker than ever. By its ruling, the Supreme Court has ensured that the next general election will be about one thing and one thing only: The People against Parliament and The Establishment.

A self-respecting Labour Party would be up in arms about this. Keir Hardie and Tony Benn must be spinning in their graves. The purported party of the working-class, cheering on the well-connected and the monied as they overturn the biggest democratic mandate in UK political history.

There has been much lofty comment this week, mainly from the ‘Liberal’-Intellegentsia, about a proper re-setting of the delicate balance of power between the Monarchy, the Government and Parliament which the Supreme Court’s Judgment presages. There has been much also, from the same sources, about the reinforcement of Parliamentary sovereignty.

Less mentioned, curiously, has been the awkward fourth element in our political settlement. The People, in whose name the aforementioned triumvirate of powers professes, unconvincingly, to govern, but from whom Parliament derives its sovereignty in the first place.

Earlier this week, Brexit Party MEP John Longworth wrote lucidly about how the conflict between two competing philosophies of government and society, a conflict dormant but still unresolved since the Civil War, has been revived by by the Brexit vote and its aftermath. It is worth reading.

It’s worth recalling, too, that full universal adult franchise was not achieved until 1928, despite the Great Reform Act being dated 1832, such is successive generations of the Establishment-Elite’s determination not to yield its political power to the demos it considers unworthy to exercise it. That Democracy lasted under 100 years before we reverted to oligarchical rule is no longer inconceivable.

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