Jamie Foster: #Brexit Gunpowder, Treason and Plot

Posted: November 6, 2016 by tallbloke in Accountability, EU Referendum, government, Incompetence, Legal, People power, Politics

Reposted from the blog of Jamie Foster


Remember, remember the 4th of November, it’s the day the legal profession took leave of its senses. Hopefully temporarily but certainly noticeably. It was perhaps unsurprising. It is not often that a constitutional law case which could help define our political future appears on the front of our national newspapers with such a barrage of fireworks. It is easy to be drawn in by the pretty explosions.

The 3rd November marked a win in the High Court for a wealthy fund manager, Gina Miller. This modern-day Guy Fawkes placed her barrels of gun powder directly under the Government, rather than Parliament this time. Her explosive case determined that the Government had no right to trigger Art 50 and inform the EU of the UK’s desire to leave without a vote in Parliament. The sparks from the case caused explosions across the press, with the Mail and the Sun calling the three judges who took the decision ‘traitors’ and ‘enemies of the people.’


Under the headlines, the papers reported that one of the judges was an openly gay Olympic fencing champion. I found this reassuring and inspiring. It is great to know that our judiciary is both open and sporting. The idea of a gay blade on the High Court benches adds colour and romance to this already vibrant tale. They also reported that another of the judges founded a law group that campaigned for greater European integration and therefore questioned his suitability to sit on the case.

The legal profession went into uproar and called on the Lord Chancellor, Liz Truss, to take action to protect the independence of the judiciary. Interestingly they were not demanding that she found out how a judge with such clear views on one side of the argument ended up hearing the case. The action that my legal brethren wanted taken was for a Minister to tell the papers they should not have asked the question in the first place.

It is very unclear exactly what they wanted poor Liz Truss to actually do, however. Had the Mail and the Sun said anything illegal in their articles it would be a very easy matter for the High Court judges to have protected themselves. They are, after all, very powerful people indeed. Unfortunately nothing said was illegal, merely indecorous. Nonetheless the lawyers on social media and in the press demanded that action be taken by a government minister to curb the lawful expression of opinion by UK newspapers on a matter of national importance.

One highly eminent QC, the ex Attorney General Dominic Grieve, said it made him feel like he was living in Zimbabwe. This is ironic because in Zimbabwe government ministers have no qualms whatsoever telling the press what to write about judges. Labour soon picked up the baton with Hillary Benn calling on Liz Truss to take some unspecified action against the editors of our national newspapers who had had the temerity to do their job. Liz Truss, to her credit, refused to be drawn.

November 4 was not merely a single day of fireworks, Dear Reader. As is the tradition in modern Britain, fireworks season looks set to drag on, as the case makes its way to the Supreme Court. This will be a very special hearing indeed. Not only because for the first time in its history 11 Supreme Court judges will hear the case. Nor indeed because it will be televised and likely to draw an audience of unprecedented scale for a UK hearing. The thing that will make it special is the opportunity it affords for the Supreme Court to consider an issue that is truly of national importance.

In simple terms this case helps define not only the relationship between Parliament and the Executive, but between government and the people. It is fraught with legal sleight of hand, which the wizards on the Supreme Court bench have an opportunity to expose as conjuring tricks rather than real legal magic. Perhaps the most obvious is the argument that Parliament needs to vote on the decision to leave the EU.

This illusion relies on the suggestion that the referendum was merely advisory, so a decision has yet to be made, and that Parliament has not had an opportunity to express a view. Brighter sparks might ask who the referendum was intended to advise. The answer is, of course, the Government, not Parliament. The Government sought the advice on whether to leave on the promise that such advice would be followed. To argue that the Government is unable to accept such advice because it is merely advice is specious. To suggest that Parliamentarians haven’t voted on the issue is equally specious. They voted twice. Firstly they voted 6-1 to have a referendum. Then each and every parliamentarian had an opportunity to vote in the referendum. As did the judiciary, the lawyers and the press.

This is in essence the elephant in the room that the Supreme Court will have to choose to confront or ignore. The people voted, and now the Court will have to determine whether the Government, acting on the will of the people, is supreme, or whether 650 of those people, sitting in Parliament, still rule as if they were a monarch. Are the British people Parliament’s bosses or is Parliament our ruler?

Far greater legal minds than mine have considered the arguments that underpin the case from both sides. My small contribution is to ask whether we will finally confront the question of what parliamentary sovereignty in the UK means. Does it mean, as John Locke and Abraham Lincoln persuaded the American people that it meant; that government is of the people, for the people and by the people? Or does it mean that the powers of a supreme monarch to rule over us have been merely delegated to a committee?

The Supreme Court has a choice as to whether to treat this case as a legal Sudoku that can be solved by reference to case-law and precedent, or to recognise the fundamental legal principle before them and confront it with the full force of their independent judicial brilliance. In my very humble opinion whatever they decide their decision must be clear and comprehensible to all of us that it affects. That is to say all of us. My hope, although not necessarily my expectation, is that they will do the right thing.

That is to say to confirm that our elected representatives in parliament vigorously debate issues and vote on our behalf, but when they hear from us directly on a matter, they defer to the people who gave them the power and allow the Executive to take its orders from source. In that way they could really protect not only the independence of the judiciary, the integrity of parliament and the separation of powers, but they could let off some legal fireworks truly worth watching.


  1. Peter_dtm says:

    I understand that recourse was made to the 1689 Bill of Rights ? If so, then surely the overriding principle laid out in the Act that Parliament is not to allow foreign princes or foreign courts to be granted sovereignty over the People makes the whole question of who triggers Article 50 irrelevant as membership of the EU is against the 1689 Bill of Rights ? And thus ALL laws emanating from or joining us to the EU/EEC/Common Market must be struck down ?

  2. rishrac says:

    Thanks for this article. I can quite clearly see the legal divide between a government relinquishing it’s sovereign state and the will of the people to a foreign regime that has no checks or balances. The result of this has implications for the US as well.
    If climate skeptics are successfully, there is nothing that is stopping the climate change people from inventing a new crisis. I see it as a foreign regime that is intent on destroying the economies of the west. I have no redress or say in the matter, and im paying for it. Worse, this defacto government has so far tried to over ride the constitution with our rights to free speech, redefining it as criminal to disagree with them.
    I can see this issue is far beyond just Britain leaving the EU. It will have ramifications for years to come and the nature of national government’s giving up its rights. The very government that is set up to provide for our safety, security, and freedom can be gone in an instant. Your town, your state, your means of making a living, your social values can be changed without your consent. Basically this foreign regime, in the name of for the greater good, can wage war without a shot being fired. And by law, you loose. This is not just Britain’s problem.

  3. tallbloke says:

  4. tallbloke says:

    Well said Rishrac. That’s why the next big battle after Brexit is Clexit


  5. TinyCO2 says:

    There is a fundamental flaw in this article. It talks about things judicial. We don’t have a judicial system, we have a legal system. We don’t get justice we get legal decisions and under that, the judges probably made the right decision.

    For as long as I’ve observed and for how long before I don’t know, but the legal system has seen its job as being to f*ck with parliament. Whatever government wants a law to be it’s a judge or lawyer’s task to reinterpret it. To find any and all holes in the wording to make a decision at odds with the spirit of the law. That’s not justice by any stretch of the imagination. So by that measure, no matter what the government or the people or even common sense dictates they are duty bound to find a reason to defy them. They love the EU. It gave them endless opportunities to screw with the will of the people and their representatives. Those wigs and robes are to remind you of the times when plebs weren’t allowed a say and didn’t expect one. Know your place peasants!

    It’s their duty, their job and their delight to put a barrier against triggering article 50. And dear [god or non religious oath of your choice] at all costs they must postpone a time when anyone gets real justice.

  6. tallbloke says:

    Yeah. Probably better described as the “legalistically correct decision” than the “right decision”.

    As Jamie says in his article. If the judgement can’t be understood by anyone except legal eagles, it’s probably crap.

  7. oldbrew says:

    Nigel Farage and Gina Miller clash over Brexit

    O/T — Erik Prince: NYPD Ready to Make Arrests in Anthony Weiner Case
    [H/T Jo Nova]

  8. The EU is not offering a ‘soft’ exit, indeed the EU is making it clear that such is not available and in any event is non-negotiable.

    Thus May cannot deliver it but is prepared to negotiate to try and get as much ‘softness’ as possible.

    She has to be left to get on with it and if she cannot get a significant climbdown from the EU then a ‘hard’ Brexit is the only available option.

    Signalling her negotiating strategy via Parliamentary oversight just makes things worse for our nation.

    Labour now realises that, hence:

    “we’re certainly not going to hold up Article 50 if we don’t get the deal.”

    and that is indeed the bottom line for Labour and the rest of the Parliamentary remainers.

    The recent court decision, rather than helping the remainers, forces them to face the reality.There will be no ‘soft’ exit unless May can use her negotiating skills to obtain it and she can only be expected to do her best.

    If Members of Parliament don’t face up to that reality and give May freedom of manouvre then they will be blamed for any adverse consequences

    She has them in a double bind and I trust that she reaises that or soon will do so.

    The power given to her by the referendum vote is formidable

  9. J Martin says:

    Robert Peston in a tweeted after the high court defeat, describing it as delicious. From what I’ve read, the Supreme Court may well come to the same conclusion as the high court since referenda have no authority in law as I understand it.

    This means that we will then have the “delicious” prospect of the issue being passed back to parliament and watching the MPs squirm as they struggle with their internal conflict between voting for what they want or voting for what their constituents want.

    All the remain MPs whose constituents voted for leave will be spending every waking moment praying that the Supreme Court will let them off the hook and overturn the decision !

    Many of them will be having sleepless nights.

  10. Bruckner8 says:

    I thought the entire point of a referendum was to call directly on the people, taking it out of the government’s hands for that single purpose…to get the decision from the people, period. Govt can’t just take it back, and claim “well, we know what’s best” in this case. All other decisions might work that way, but not a referendum. Otherwise, what’s the point of having this special referendum process at all?

  11. tallbloke says:

    The 2011 referendum on voting systems was binding, because the LibDems made sure the bill enabling it was worded so it was. As govt coalition partners they had the leverage. The referendum legislation wasn’t, because Cameron wanted wriggle room to weasel with, and it would have been harder to get MP’s to pass it anyway.

    But the £9m leaflet the govt posted to all households stated that the govt would implement the decision, leaving the current constitutional mess.

  12. Zeke says:

    I like Gerard Batten and he seems to think you can also repeal the European Communities Act.

    “Gerard Batten destroys all the legal arguments for Brexit legal challenge” dur.5:13

    I am not from around there but we have a lot of the same problems with separation of powers, courts legislating from the bench, etc etc.

  13. Tamen Dubito says:

    Why does the outcome of a democratic referendum have to be put to an undemocratic
    House of Commons for approval?
    (Undemocratic? In the 2015 general election UKIP got 13% of the total UK vote and returned
    1 MP. The SNP got 5% of the total UK vote and returned 56 MPs) and don’t get me started on
    the House of Lords!

  14. oldbrew says:

    Zeke says: ‘I like Gerard Batten and he seems to think you can also repeal the European Communities Act’

    Still subject to a vote by MPs?

  15. rishrac says:

    @ Bruckner, I think they wanted the referendum because they didn’t think it would pass. I also think they could manipulate public opinion to the point of making sure that didn’t happen. I don’t live in England, so the fact that it passed in my opinion is that things in England have to be bad for it to pass. Otherwise, no one would care. The status quo is always easier to maintain than changing things. Public opinion had to overcome the media’s desire to stay.
    When the voting first began in the US, the media and the Democratic party was toasting what looked to be a run a way election. It is different now since the results are a lot different. Hillary could, even to my surprise, lose.

  16. sidefxny says:

    As I read about how they are trying to steal the Brexit vote from our brothers and sisters in the UK, I can’t help but have a sickening feeling about our own election tomorrow. I am a loyal Trump supporter as is at least half of the US and it is hard to find anyone these days who will even admit supporting Hillary the Hag from Hell. We have so many of the same issues that propelled Brexit especially unbridled, illegal immigration and the globalisation of our once free Republic.

    Many of us are worried that the Clinton Crime machine is going to sabotage and/or steal our election. They have so much control over the voting machines and polling places not to mention voter registration. We have have our president Hussein telling illegal aliens to get out there and vote! Can you imagine that- the commander in chief advocating a criminal act?

    All I can say is- pray for us and for Western civilization. Trump-Pence 2016!

  17. Zeke says:

    oldbrew says:
    November 7, 2016 at 10:07 am
    Zeke says: ‘I like Gerard Batten and he seems to think you can also repeal the European Communities Act’

    Still subject to a vote by MPs?

    Yes. Relaying what Gerard Batten is saying. You have to do it now while you have the political mandate and the political will, or do it after two years of negotiations with the EU, which might even be overturned by other members of the EU. That is what he is saying.


    However, Nigel Farage has not made any mention of repealing the European Communities Act that I know of. There it is so any one can look it over if he gets time. It is never a waste of time to give Gerard Batten a listen any way.

    Personally, I am exhausted. The ballot this year had me over a barrel in several ways. There is a vocal global warming candidate I actually ended up having to vote for because he is adamant that hydro is in fact a renewable power source. And we have almost all hydro up here, while our state considers it a non renewable and is putting up enormous worthless wind all over our hills and along our rivers. It just adds to the expense. And let’s hope our state gives a resounding no to carbon taxation. But on the bright side, I do love saying NO to everything every one wants.

  18. ebnelson says:

    Please correct me if I am wrong:
    Parliament passed a bill authorizing the Brexit Referendum
    The Bill seems to have been written and passed by Parliament with the specific purpose of Parliament either remaining in the EU or leaving the EU, subject to the popular vote.
    Nothing in the Bill suggested that once the vote was in, Parliament would then think about whether or not to stay in- Stay if the majority says “stay”
    Leave if the majority says “leave”.
    It seems Parliament in fact has voted on it- they wisely voted to obey the will of the people.

  19. rishrac says:

    Here in the US it looks, unbelievable, that there really has been a climate change. A political one.

  20. oldbrew says:

    Yes, Trump is over the finish line. Climate change suddenly has a whole new meaning 🙂