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Theresa May, Brexit and the Supreme Court

The Supreme Court Judgment, like the previous High Court Judgment, will not derail or even significantly slow down Britain’s exit from the EU. The court decisions have however forced Theresa May to say finally that Britain is heading for a “hard Brexit”: quitting the European Single Market so that it can reimpose border controls. They have also further exposed Theresa May as a weak and indecisive leader who does not know her own mind.

Alexander Mercouris

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The decision of Britain’s Supreme Court to refuse the British government’s appeal against the High Court Judgment, which said that the British government must consult the British Parliament before invoking Article 50, appears to have stirred fewer passions than the High Court Judgment did.

This is perhaps because of the general expectation that the British government would lose the appeal.  This meant that where the High Court Judgment came as a shock for many people, the Supreme Court Judgment did not.

I have discussed the High Court Judgment previously.  I said that though I am not a constitutional lawyer it appeared to me reasonable and well-considered, and though I did not think it was completely appeal proof I doubted the Supreme Court would set it aside

In my opinion this is a very well thought out and carefully considered Judgment delivered by three of the country’s top Judges.  Certainly I do not think this was a politicised Judgment intended to wreck the Brexit process. 

I do not have the constitutional law expertise to say whether this Judgment is right or wrong, or whether it will survive on appeal.  On balance I don’t agree with those who say this Judgment is appeal proof, but neither do I think that the Supreme Court will set it aside.

The Supreme Court’s 8-3 split when it decided to dismiss the government appeal, which suggests that this assessment of the High Court Judgment was roughly right.

More importantly, I also said – and I still say – that whatever the legal and constitutional importance of these court decisions, they will not derail or even significantly slow down the Brexit process as some people hope and some others fear.

What I doubt is that this Judgment will derail the Brexit process as some people think.

Though the British government will have to present legislation to the British Parliament in order to get the Article 50 process underway, I have no doubt it will be able to do this and to get this legislation passed when it does. 

Though it is true that most of the members of the British Parliament in the referendum supported Remain, the government has a majority in the House of Commons, and it would surely treat any refusal by Parliament to pass this legislation as a resigning matter. 

What that would mean is that it would threaten to call an election if the legislation were not passed, in which it would campaign as the government that was trying to carry out the will of the people as expressed in the referendum against a recalcitrant Labour opposition and any dissenting Conservatives intent on thwarting it.

With the government already far ahead in the opinion polls, that would create the conditions for a government victory by a landslide, resulting in a government and a Parliament even more committed to the ‘hard’ Brexit outcome than the one we have now.

I cannot imagine that even the most doctrinaire Remain supporters, whether in Parliament or outside it, would be unable to see this, and for that reason I expect the government to get its way.  Probably on especially contentious issues the Labour opposition will abstain after some sort of compromise is forged.

Since I wrote that in November shortly after the High Court Judgment it appears to have become the consensus view.  In fact most commentators have come to acknowledge that High Court and Supreme Court Judgments cause more political problems for the opposition Labour Party – which is far more split on the Brexit issue than the Conservatives – than it does for the government.

A more pertinent question is why these court Judgments were needed at all.  It beggars belief that the government’s lawyers didn’t warn it back in the summer and early autumn that it was running serious risks by trying to invoke Article 50 without consulting Parliament.  This is one occasion when I find myself in agreement with the Guardian’s editorial writer

It would be a major surprise if, following the leave vote last June, government lawyers had not privately offered the prime minister legal advice along broadly the lines that the supreme court upheld today. If so, Mrs May foolishly ignored the advice because she clearly wanted to keep her post-referendum strategy as secret as possible – and still does. This was the wrong way to respond to the challenges posed by the referendum result – and the Commons, which was cowed, did not challenge her with enough determination.

Indeed this episode points to what is the true heart of the whole problem: in Theresa May Britain has a weak and indecisive Prime Minister, who because she does not know her own mind is unable to give a clear lead, whether on Brexit or on any other issue.

As I wrote back in early December, her reluctance to go to Parliament was not based on any major constitutional principle or because she was seriously worried she might lose a vote there.  It was because she had no Brexit plan to put to Parliament.  To the extent that she did have one, it did not make sense

Unfortunately in the weeks which have followed it has become increasingly clear that Theresa May has no more idea of what to do on the subject of Brexit than anyone else.  For weeks she hid behind the easy but actually meaningless slogan “Brexit means Brexit”.  However she has never spelled out either what form she wants Brexit to take, or how she intends to achieve it. 

The best that could be said of her is that she seemed to want to preserve Britain’s membership of the European Single Market, whilst opting out of the jurisdiction of the European Court of Justice, and regaining control of Britain’s borders.

This is a completely illogical policy.  Firstly membership of the European Single Market actually requires Britain to accept the jurisdiction of the European Court of Justice.  It cannot be otherwise since it is the European Court of Justice which administers the acquis, the EU’s body of law which regulates the European Single Market.

Secondly, it is not at all obvious why the EU would agree to allow Britain continued access to the European Single Market whilst simultaneously permitting Britain to reimpose its own border controls.

What the High Court and Supreme Court Judgments have done is force Theresa May to come out and say – at last – what sort of Brexit she wants.  

Since it cannot be the ‘plan’ she was hinting at back in the autumn – which was in reality nothing more than an ill-thought-out wish-list – she has finally been forced to choose between the only two realistic options: remaining in the European Single Market and surrendering British border controls (“soft Brexit”), or withdrawing from the the European Single Market and re-establishing British border controls (“hard Brexit”).  

Unsurprisingly, in light of the known views of most British Conservative voters, she has taken the line of least resistance, and opted for the later ie. for “hard Brexit”.  

She has also now finally promised a White Paper on her Brexit plan (a White Paper is the document the British government uses to outline its legislative plans), something which she ought to have done at the latest in September or October.

If the British courts have finally smoked Theresa May out on the all-important Brexit issue, the problem remains that Britain is stuck with a weak and indecisive Prime Minister, who does not know her own mind, which at a time when the international situation is exceptionally fluid and the prospect of Scottish secession looms is or should be a matter of serious concern.

Theresa May has been very fortunate that the deeply divided state of Britain’s opposition Labour Party – which is facing an existential crisis in its northern heartlands – together with the British economy’s strong performance in recent months, has left her politically unchallenged.

On her present form, her future as Prime Minister depends on how long her present luck continues to hold.

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BREXIT chaos, as May’s cabinet crumbles (Video)

The Duran Quick Take: Episode 18.

Alex Christoforou

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The Duran’s Alex Christoforou and Editor-in-Chief Alexander Mercouris take a quick look at the various scenarios now facing a crumbling May government, as the Brexit Withdrawal Agreement is forcing cabinet members to resign in rapid succession. The weekend ahead is fraught with uncertainty for the UK and its position within, or outside, the European Union.

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If Theresa May’s ill-fated Brexit Withdrawal Agreement is eventually rejected this could trigger a vote of no confidence, snap elections or even a new referendum…

Here are six possible scenarios facing Theresa May and the UK (via The Guardian)

1 Parliament blocks Theresa May’s draft withdrawal agreement and political declarations

May faces an enormous task to win parliamentary approval, given that Labour, the SNP, the DUP and 51 Tories have said they will not vote for it.

If the remaining 27 EU member states sign off the draft agreement on 25 November, the government will have to win over MPs at a crucial vote in early December.

If May loses the vote, she has 21 days to put forward a new plan. If she wins, she is safe for now.

2 May withdraws the current draft agreement

The prime minister could decide that she will not get the draft agreement through parliament and could seek to renegotiate with the EU.

This would anger Tory backbenchers and Brussels and would be seen as a humiliation for her government. It might spark a leadership contest too.

3 Extend article 50

May could ask the European council to extend article 50, giving her more time to come up with a deal that could be passed by parliament – at present, the UK will leave on 29 March 2019.

Such a request would not necessarily be granted. Some EU governments are under pressure from populist parties to get the UK out of the EU as soon as possible.

4 Conservative MPs trigger a vote of no confidence in the prime minister

If Conservative MPs believe May is no longer fit for office, they could trigger a no-confidence vote.

Members of the European Research Group claim that Graham Brady, the chair of the powerful 1922 Committee, will receive the necessary 48 letters this week.

A vote could be held as soon as early next week. All Tory MPs would be asked to vote for or against their leader. If May wins, she cannot be challenged for at least 12 months. If she loses, there would be a leadership contest to decide who will become prime minister.

5 General election – three possible routes

If May fails to get support for the current deal, she could call a snap general election.

She would table a parliamentary vote for a general election that would have to be passed by two thirds of MPs. She would then set an election date, which could be by the end of January.

This is an unlikely option. May’s political credibility was severely damaged when she called a snap election in 2017, leading to the loss of the Conservative party’s majority.

Alternatively, a general election could be called if a simple majority of MPs vote that they have no confidence in the government. Seven Tory MPs, or all of the DUP MPs, would have to turn against the government for it to lose the vote, triggering a two-week cooling-off period. May would remain in office while MPs negotiate a new government.

Another route to a general election would be for the government to repeal or amend the Fixed-term Parliaments Act which creates a five-year period between general elections. A new act would have to be passed through both the Commons and the Lords – an unlikely scenario.

6 Second referendum

May could decide it is impossible to find a possible draft deal that will be approved by parliament and go for a people’s vote.

The meaningful vote could be amended to allow MPs to vote on whether the country holds a second referendum. It is unclear whether enough MPs would back a second referendum and May has ruled it out.

 

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Brexit Withdrawal Agreement may lead to Theresa May’s downfall (Video)

The Duran – News in Review – Episode 151.

Alex Christoforou

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The Brexit Withdrawal Agreement has been published and as many predicted, including Nigel Farage, the document is leading to the collapse of Theresa May’s government.

During an interview with iTV’s Piers Morgan, remain’s Alistair Campell and leave’s Nigel Farage, were calling May’s Brexit deal a complete disaster.

Via iTV

Alastair Campbell: “This doesn’t do remotely what was offered…what is the point”

“Parliament is at an impasse”

“We have to go back to the people” …”remain has to be on the ballot paper”

Nigel Farage:

“This is the worst deal in history. We are giving away in excess of 40B pounds in return for precisely nothing. Trapped still inside the European Union’s rulebook.

“Nothing has been achieved.”

“In any negotiation in life…the other side need to know that you are serious about walking away.”

“What monsieur Barnier knew from day one, is that at no point did Theresa May intend to walk away.”

“Fundamental matter of trust to the electors of our country and those who govern us.”

The Duran’s Alex Christoforou and Editor-in-Chief Alexander Mercouris discuss Theresa May’s Brexit Withdrawal Agreement, and why the deal is a full on victory for the European Union and a document of subjugation for the United Kingdom.

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Coming in at 585 pages, the draft agreement will be closely scrutinized over the coming days but here are some of the highlights as outlined by Zerohedge

  • UK and EU to use the best endeavours to supersede Ireland protocol by 2020
  • UK can request extension of the transition period any time before July 1st, 2020
  • EU, UK See Level-Playing Field Measures in Future Relationship
  • Transition period may be extended once up to date yet to be specified in the text
  • EU and UK shall establish single customs territory and Northern Ireland is in same customs territory as Great Britain

The future relationship document is less than seven pages long. It says the U.K. and EU are seeking a free-trade area with cooperation on customs and rules: “Comprehensive arrangements creating a free trade area combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition.”

The wording might raise concerns among Brexiters who don’t want regulatory cooperation and the measures on fair competition could amount to shackling the U.K. to EU rules.

As Bloomberg’s Emma Ross-Thomas writes, “There’s a clear sense in the documents that we’re heading for a customs union in all but name. Firstly via the Irish backstop, and then via the future relationship.”

Separately, a government summary of the draft agreement suggests role for parliament in deciding whether to extend the transition or to move in to the backstop.

But perhaps most importantly, regarding the controversial issue of the Irish border, the future relationship document says both sides aim to replace the so-called backstop – the thorniest issue in the negotiations – with a “subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing.”

On this topic, recall that the U.K.’s fear was of being locked into the backstop arrangement indefinitely in the absence of a broader trade deal. The draft agreement includes a review process to try to give reassurance that the backstop would never be needed. Basically, the U.K. could choose to seek an extension to the transition period – where rules stay the same as they are currently – or opt to trigger the backstop conditions. In fact, as Bloomberg notes, the word “backstop,” which has been a sticking point over the Irish border for weeks, is mentioned only once in the text.

As Bloomberg further adds, the withdrawal agreement makes clear that the U.K. will remain in a single customs area with the EU until there’s a solution reached on the Irish border. It’s what Brexiteers hate, because it makes it more difficult for the U.K. to sign its own free-trade deals, which they regard as a key prize of Brexit.

Predictably, EU Commission President Juncker said decisive progress has been made in negotiations.

Meanwhile, as analysts comb over the documents, Jacob Rees-Mogg, chairman of the European Research Group, has already written to Conservative lawmakers urging them to vote against the deal. He says:

  • May is handing over money for “little or nothing in return”
  • The agreement treats Northern Ireland differently from the rest of the U.K.
  • It will “lock” the U.K. into a customs union with the EU
  • It breaks the Tory election manifesto of 2017

The full document…

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4 resignations and counting: May’s government ‘falling apart before our eyes’ over Brexit deal

The beginning of the end for Theresa May’s government.

The Duran

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Via RT


Four high profile resignations have followed on the heels of Theresa May’s announcement that her cabinet has settled on a Brexit deal, with Labour claiming that the Conservative government is at risk of completely dissolving.

Shailesh Vara, the Minister of State at the Northern Ireland Office was the first top official to resign after the prime minister announced that her cabinet had reached a draft EU withdrawal agreement.

An hour after his announcement, Brexit Secretary Dominic Raab – the man charged with negotiating and finalizing the deal – said he was stepping down, stating that the Brexit deal in its current form suffers from deep flaws. Esther McVey, Secretary of State for Work and Pensions, submitted her letter of resignation shortly afterwards. More resignations have followed.

Labour’s shadow Cabinet Office minister, Jon Trickett, predicted that this is the beginning of the end for May’s government.

The government is falling apart before our eyes as for a second time the Brexit secretary has refused to back the prime minister’s Brexit plan. This so-called deal has unraveled before our eyes

Shailesh Vara: UK to be stuck in ‘a half-way house with no time limit’

Kicking off Thursday’s string of resignations, Vara didn’t mince words when describing his reservations about the cabinet-stamped Brexit deal.

Theresa May’s EU withdrawal agreement leaves the UK in a “halfway house with no time limit on when we will finally become a sovereign nation,” his letter of resignation states. Vara went on to warn that the draft agreement leaves a number of critical issues undecided, predicting that it “will take years to conclude” a trade deal with the bloc.

“We will be locked in a customs arrangement indefinitely, bound by rules determined by the EU over which we have no say,” he added.

Dominic Raab: Deal can’t be ‘reconciled’ with promises made to public

Announcing his resignation on Thursday morning, Brexit Secretary Dominic Raab tweeted: “I cannot in good conscience support the terms proposed for our deal with the EU.”

Raab claimed that the deal in its current form gives the EU veto power over the UK’s ability to annul the deal.

No democratic nation has ever signed up to be bound by such an extensive regime.

Former Conservative Party leader Iain Duncan Smith said that Raab’s resignation as Brexit secretary is “devastating” for May.

“It sounds like he has been ignored,” he told the BBC.

Raab’s departure will undoubtedly encourage other Brexit supporters to question the deal, political commentators have observed.

Esther McVey: Deal ‘does not honor’ Brexit referendum

Work and Pensions Secretary Esther McVey didn’t hold back when issuing her own letter of resignation. According to McVey, the deal “does not honour” the result of the Brexit referendum, in which a majority of Brits voted to leave the European Union.

Suella Braverman: ‘Unable to sincerely support’ deal

Suella Braverman, a junior minister in Britain’s Brexit ministry, issued her resignation on Thursday, saying that she couldn’t stomach the deal.

“I now find myself unable to sincerely support the deal agreed yesterday by cabinet,” she said in a letter posted on Twitter.

Suella Braverman, MP Parliamentary Under Secretary of State for the Department for Exiting the EU © Global Look Press / Joel Goodman
Braverman said that the deal is not what the British people voted for, and threatened to tear the country apart.

“It prevents an unequivocal exit from a customs union with the EU,” she said.

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