That Constitutional Crisis I predicted in June has now arrived. Enjoy
Leave aside whether you or I are annoyed by the High Court’s judgement on Article 50, or think it perverse according to law. Are you really surprised by it?
I am not.
Below are links to various more-or-less prophetic articles (wrong in some respects, especially my belief , later revised a fortnight before the vote, that the anti-EU cause was most unlikely to win the referendum; strikingly right in others) in which I explained to impatient and tetchy readers why I did not want a referendum, and was not convinced that such a vote could get us out of the EU:
http://hitchensblog.mailonsunday.co.uk/2013/05/the-referendum-mirage.html
The oldest, here, from October 2011, a trifle more than five years ago http://hitchensblog.mailonsunday.co.uk/2011/10/referendum-no-thanks.html
is perhaps the most telling.
I wrote : ‘Even if they succeeded in getting their referendum, and even if they succeeded in winning it – near impossible without at least one major party calling for a vote to withdraw - it would not bind the British government. The only real solution is for a general election to be won by a party committed to secession. And with the Tory party in the way, bed-blocking the position that ought to be occupied by such a party, that will never happen.’
In May 2013, I wrote: ‘Why is there such a fuss about a referendum on British, sorry, I mean Ukay, membership of the European Union? Has Parliament been abolished? Has a constitution been quietly introduced, which demands that such issues are decided by plebiscite, and makes the result of such plebiscites binding on Parliament?
‘I’ve heard no such proposal, and can’t see how it could be so, given the cowardly, ignorant or plain stupid attitudes of most MPs to this question.
‘It’s certainly understood, by constitutional lawyers, that such an obligation is important for any serious plebiscite, and its presence or absence in any legislation will be crucial. I suspect it will be absent.’
It was absent, as I several times said at the time.
This is why, when I correctly predicted that ‘Leave’ would win the referendum (on 12th June) http://hitchensblog.mailonsunday.co.uk/2016/06/the-british-people-have-risen-at-last-and-were-about-to-unleash-chaos.html
I also prophesied the constitutional crisis which is now developing. I said:
‘I think we are about to have the most serious constitutional crisis since the Abdication of King Edward VIII. I suppose we had better try to enjoy it.
‘If – as I think we will – we vote to leave the EU on June 23, a democratically elected Parliament, which wants to stay, will confront a force as great as itself – a national vote, equally democratic, which wants to quit. Are we about to find out what actually happens when an irresistible force meets an immovable object?’
The other point I made *after* the result was that the EU itself, and its supporters in this country (no shortage of them in positions of influence in politics, law, diplomacy and media) would act tough to begin with eventually offer us a compromise under which we will, in effect, stay inside the EU.
This isn’t exactly wishful thinking, of the sort which guides many of the reactions to the High Court ruling on Article 50. I have been committed to national independence for many years. But I have infuriated and failed to persuade most of my readers by repeatedly saying that the destruction of the Tory party, and its replacement by a genuinely patriotic and conservative formation, were the essential preliminaries to achieving this.
Well, instead of working hard and saving up to buy my well-crafted, effective if antique device, with its polished brass hinges, well-oiled mechanisms and chased silver decorative bits, they went down to the industrial estate on the edge of town, and maxed out their credit card to purchase a cheapo, bodge-it-yourself instant exit kit – the referendum. Then they hired a plausible man with a grubby white van to install it. It seemed to work to start with. Now it’s giving out alarming knocking and whistling noises, and shuddering in a worrying way. But where’s the man who installed it? His mobile phone seems to have gone dead.
Well, this is what happens when you get the cowboys in. I really did tell you so. We’ll end up in the European Economic Area before this is over, you mark my words – halfway out of the EU instead of where we were, which was halfway in.
John
Thank you for your reply.
I agree with you on the subject of referenda.
On the subject of 'the better informed', I'm reasonably convinced, at this early stage, that as 'information' arrives it is far more likely to be of the pocking-hurting variety, which takes me back to the thought that many who voted for Brexit might be having second thoughts not too far down the road.
Perhaps, like me, such concerns will not impact your chosen life-style, but I see a great number in this part of the country (which voted to leave along with many other areas in the north) who will suffer further hardships. I hope I'm wrong...
Posted by: Alan Thomas | 06 November 2016 at 11:28 AM
Great Britain is an oligarchy which some fail to understand. Ultimate power rests with a small group of unelected and often activist judges. They have contempt for the great unwashed who they view as similar to "the mob" of ancient Rome. Thomas Jefferson wrote that the tree of liberty needs to be replennished with the blood of tyrants. I have no doubt that this constitutional crises with result in violence when the great British public vent their anger and frustration.
Posted by: Mike Harper | 06 November 2016 at 11:09 AM
Shane Quinn,
The golden rule of English law is to follow the spirit of the law rather than the letter of the law, should there be a conflict between the two.
‘It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance.’ Becke v Smith (1836)
The concept of parliamentary sovereignty from The Glorious Revolution onwards is to protect the British people from tyrannical rule. The British prime minister has not decreed by fiat to invoke Article 50 of the Lisbon Treaty. She has done so after consultation with the British people in a referendum, a referendum in which the will of the people has been clearly expressed - to leave the European Union. The decision to hold that referendum was given parliamentary approval, meaning that parliament has already had its say.
As a member state of the European Union, laws are imposed upon the British people by unelected, irremovable bureaucrats from the European Union Commission - surely what is this, if not ‘tyrannical rule’? And that parliament should be forced to enact many of these laws by directives emanating from the Commission just as surely makes a mockery of ‘parliamentary sovereignty’.
The High Court’s decision, therefore, to use the concept of parliamentary sovereignty in an attempt to preserve this tyrannical rule, placing parliament in subservience to the European Union Commission, is to use parliamentary sovereignty in order to undermine parliamentary sovereignty - a situation which is truly ‘absurd’ and ‘repugnant’.
Never before have I seen a clearer case of the spirit of the law being subverted to the letter of the law. And in this case, not only subverted, but quite positively inverted - absurd...repugnant.
Posted by: Ian Spriggs | 06 November 2016 at 10:18 AM
***PH asks: "Where did I say that [mass emigration is unworkable]?"
You said “I wasn't saying [the emigration of all young Britons] because it was 'workable'; but because it is the only advice I have to give.”
“…the assertion that by offering this advice I am urging 'mass emigration' is beyond ridiculous.”
You said "I have for years advised the young to emigrate. I make no exceptions." So presumably you mean all of them. That counts as ’mass’, I would say.
“Who cares what I think at all,”
Lots of people do.
“Heaven preserve us from the literal-minded.”
This looks like a get-out clause whereby our arguments can be dismissed if we address what you actually said.
“Since nobody ever takes my advice anyway, I can urge them to emigrate with the pretty firm conviction that they won't…..Though my advice is good, and I feel no qualm in offering it, I am making a point about the inevitability of severe national decline, not setting up a travel bureau.”
OK, so you are just making a statement, which wasn’t to be taken seriously. Even though when you say it you always say that you are serious.
“What he ought to have learned is that he was wrong, but he will not learn it properly until he admits it.***.”
As I hope I have explained, I still believe that my argument was right.
Posted by: Gadjo Dilo | 06 November 2016 at 06:46 AM
Alan,
I would suggest the vast majority of voters in the referendum, both leavers and remainers, don't understand much of the nature and history of the EU, or our relationship with it. I'm suggesting no more, and no less, than that those who understand this, and are truly patriotic (that is, believe in the historically rooted identity, sovereignty, and independence of England, or Britain), could only wish Britain to leave the EU. Anyone who is a Europhile must either not properly understand the EU or not much care for the full maintenance of our sovereignty, independence, and identity.
The only possible exception I can see, is those so scared about us not being part of Europe that they think we will be invaded by Russia or China, or our economy will shrink by half in a decade. I think these fears are so overblown that I'd almost be prepared to say those holding them are not rightly considering their countries interests. But I wouldn't say these people are necessarily unpatriotic. I would say it was unpatriotic to think more modest risks, even a slight decline in living standards in the medium term, is enough to remain in the EU (if the nature of the EU is properly understood).
Personally, like our host, I don't much care for referenda. I don't think, though, despite smugness, that remainers are much better informed on the key issues than leavers. I also don't think that it can be said the leavers, on a whole, are less enthusiastic about leaving the EU than remainers are about remaining in. Many remainers have no love for the EU, but voted due to the government scare campaign. Few leavers, even if they had other reasons, had much love for the EU.
Posted by: John | 06 November 2016 at 02:52 AM
It's all very well Evans wanting to repeal the 1973 Act, but what happens to all the British ex-pat community now living on the continent, such as myself? What effect is such an action going to have on people, rather than basking in a somewhat meaningless, abstract notion of sovereignty that no doubt Evans has? What about the rights of EU citizens currently working in the UK.
Just bargaining chips for future negotiations as that cunning Liam Fox seems to think.
Perhaps my escape from Britain in the first place to get away from British working conditions - low pay topped up to unemployment benefit level and short-term contracts only - would be considered by UKIP to be disloyal. I was at the time only too glad to get away from such pompous little country and its moribund healthcare system - a great and glorious past, but rather pathetic present, and dubious future going by the shambles its finances are in.
Posted by: Ken B | 05 November 2016 at 11:42 PM
I voted to leave the EU but one thing is for certain,i wont be voting again,not in another EU referendum or general election.I am finished with politics.At present we have an unelected head of state and a Prime minister nobody voted for.Our main rulers are a bunch of unelected people who might never even have set foot in this country.
The UK likes to lecture others on democracy but I see very little of it here.
Posted by: Ravi Kumar | 05 November 2016 at 10:14 PM
Michael Wood – your comment exemplifies, I'm afraid, the childishness of certain Brexit voters in the wake of the referendum result. You seem to view the referendum as a way of getting one over on people you disagree with, rather than a serious decision about the political future of our country.
Of course Remainers are complaining about the result; they believe that political opportunism and popular ignorance have combined to jeopardise our economic security, just as Brexit supporters before the referendum complained about what they perceived (not unreasonably) as an unaccountable, meddlesome bureaucracy. They have every justification to oppose and resist it.
I don't know whether the recent court ruling will succeed in preventing Brexit – I doubt it will – but if it does, it will represent a glorious victory for decent, hard-working elites over the unaccountable will of the people.
Posted by: Joshua Wooderson | 05 November 2016 at 07:58 PM
Typo correction:
Suzanne Evans: "What I think Government should do is repeal the 1972 Communities Act forthwith. And then they have a binary choice; MPs have an option ..."
Posted by: adeledicnander | 05 November 2016 at 05:54 PM
NA
"How's the weather in Cheltenham today?"
I've no idea. Why do you ask?
Posted by: Alan Thomas | 05 November 2016 at 05:21 PM
The Constitutional Crisis isn't new. It's been going on for decades. Brexit means that, for the first time, the judicial dictators have to defy the public openly.
The time is fast approaching for justified civil disobedience. If the left are excused by the celebrigentsia for rioting against the majority vote over miners, poll tax or simply the trustafarians rioting over whatever they please - then surely the legitimate majority who voted Brexit and who are now being treated with contempt have the right to refuse to pay their BBC licence fee.
If 17 million people do it at once what can they do about it anyway ?
Taking out the communications of the enemy is the first part of any combative campaign and we can do it. Frederick Forsyth writes about such things.
Brexit is not a spectator sport, Mr Hitchens.
what are you waiting for ?
Posted by: Anonymous | 05 November 2016 at 04:58 PM
Posted by: Alan Thomas | 03 November 2016 at 05:26 PM
>
Hows the weather in Cheltenham today?
Posted by: NA | 05 November 2016 at 04:10 PM
Will Theresa May and other top UK politicians STOP using submissive body language when they meet EU leaders. Yet again we have Juncker putting his arms around Mrs May and guiding her about. Cameron used to let Barroso dominate him.
Posted by: NA | 05 November 2016 at 04:08 PM
Russia and US are now officially at war (Cyber war). This is how all future hot wars begin.
Posted by: NA | 05 November 2016 at 04:06 PM
Judges are referred to as "independent" despite the fact that any three judges may, possibly, for the sake of argument, say, all be Remainers. If three judges who had voted Leave had made this judgement their "impartiality" would not be questioned.
The referendum was a democratic decision. Democracy, by definition, is patently more democratic than the compromise of representative democracy as represented by Parliament.
Remainer Tory former Attorney General Dominic Grieve MP appeared on last night's Newsnight opposite UKIP's Suzanne Evans, who says:
"What I think Government should do is repeal the 1973 Communities Act forthwith. And then they have a binary choice; MPs have an option ..."
Dominic Grieve: "That is an unlawful act. It is utterly unlawful to leave the European Union by merely repealing the 1972 Act."
To repeat HM Government's 1975 'YES' Leaflet assurance to voters, it said:
"Fact No. 3. The British Parliament in Westminster retains the final right to repeal the Act which took us into the Market on January 1, 1973. Thus our continued membership will depend on the continuing assent of Parliament."
Posted by: adeledicnander | 05 November 2016 at 03:48 PM
Should we Brexiteers be a little more compassionate to our less patriotic countrymen?
Should we freely issue sack cloth, manacles and bread and water to all those lamenting 'remainers' who are already suffering horrors at the prospect of their imminent detachment from, and their potential loss of ability to suckle on, the teats of an 'overweening' Brussels oligarchy in servitude, dependency, gratitude and ardent loyalty?
Or should we just round them up and swop them for all those now-stateless immigrant families, now wandering the hostile towns and cities of their( remainers) beloved EU, who desperately want to become British citizens?
Posted by: Michael Wood | 05 November 2016 at 03:00 PM
Remainng guarantees ongoing servitude, but leaving doesn't in itself guarantee liberation Most prominent Brexiteers are globalists and cultural leftists of one sort or another. During the referendum campaign many of them rightly argued that big business uses the EU to impose regulation on business - on the grounds that such red tape stifles competition from small enterprises One can't help noticing how little of this rhetoric has been heard since the referendum. Indeed the whole focus has now, very conveniently, shifted to overarching questions of the timing and nature of Britain's departure. The globalist Brexiteers are clearly hoping that by the time Brexit actually happens, the British public will have forgotten the implicit promise to do away with all the pettifogging regulation. Meet the new banana inspector, same as the old banana inspector.
Posted by: Colm J | 05 November 2016 at 02:44 PM
Henry L'Eplattenier | 04 November 2016 at 10:58 PM :
*** What if this contributor discussed what I actually wrote, rather than his own wild fantasies? ***
Global government would be near enough inevitable given the political and social agendas and administrative structures you tend to endorse -- and the intent of powerful interests associated with such agendas.
You might support / oppose social, political and economic (once upon a long time ago, the definition of "economics" encompassed all these other aspects) policies on an issue-by-issue basis .... but whether or not you take this into consideration, most such policies act as integrated parts of a much wider package.
Worldwide dictatorship would happen -- is happening -- by design, not accident. For instance, only one economic model appears to be approved / permitted, nowadays ... anything else is attacked, by various means.
It is hardly my fault if you cannot envisage the probable longer-term outcome of your own arguments.
Posted by: C. Morrison | 05 November 2016 at 02:06 PM
Fascinating. Peter Hitchens, great reading this article, he is way ahead of politician. Wish he was leader of the next government.
Posted by: Richard Oram | 05 November 2016 at 01:47 PM
Tom at 7.47 says we can't afford to leave the DU.
Our debt was accrued as members of the EU and is climbing as members of the EU.
We can't afford to stay !
Posted by: Anonymous | 05 November 2016 at 01:00 PM
***PH asks "did Parliament confer these "rights"?***
To answer this in the context of the case, I need to quote Professor Finnis at some length - I hope he will not mind.
"Oral argument in the Brexit Case in the Administrative Court last week left an easy case looking a bit difficult. It allowed Lord Pannick QC, for the lead claimant, to reiterate a couple of dozen times in his Reply, unchallenged, the glaringly fallacious syllogism on which he has rested the claim: (1) statutory rights enacted by Parliament cannot be destroyed (removed, defeated, etc.) by executive action without Parliamentary statute [or authorization]; (2) the myriad rights acquired by UK persons under the Treaties given effect in the UK by s. 2(1) ECA 1972 are statutory rights enacted by Parliament; (3) therefore no executive action can be taken to terminate the UK’s adherence to those Treaties without authorization by statute [or other parliamentary authorization].
But rights acquired by virtue of s. 2(1) ECA are not “statutory rights enacted by Parliament”. They are rights under the treaty law we call EU law, as it stands “from time to time”. They are thus subjected to alteration by decisions made in the international realm by EU or EU-related bodies and processes, in which the Crown participates by exercise of its prerogative, for the most part without restraint or pre-authorization by Parliament, let alone by statute."
The full article at ukconstitutionallaw .org and the subsequent one on the judicialpowerproject .org.uk are very much worth reading.
Posted by: Mr Rob | 05 November 2016 at 11:17 AM
***PH: He means he now recognises he was mistaken, but lacks the grace to say so.****
Oh, not at all! I stand by the reasons I gave for why anyone would deliver advice that isn't workable. Your additional reason that "telling the truth is a virtue in itself" (quite apart from the fact that I've generally encountered it espoused by those of a solipsistic disposition who for whatever reason do not wish to engage in improving the realities of the world) doesn't work in this case. Telling all young Britons that they should emigrate - what 'truth' does that serve? The truth that Britain is not as good a place to live in as it should be? Such statements are obvious banalities that don't deserve the grand title 'truth'.
***PH replies: People ask me what they should do. This is the only useful answer I can give. It is what I would do if were young and without the commitments which make it difficult now. They are not obliged to follow my advice and few if any do. ***
"In simple utilitarian practical terms [telling the truth] also has a purpose - we owe this to those who will come after us, so that they can if they wish avoid our errors." Yes, I agree. But the 'truth' in this particular situation we are asked to believe is young people should emigrate, and so the error is presumably not emigrating. But you've already said that mass emigration is unworkable.
***PH asks: Have I? Where did I say that? In any case, there is a great deal of difference between offering advice (when pressed to do so) and actively campaigning for the action I advise. Even then, the assertion that by offering this advice I am urging 'mass emigration' is beyond ridiculous. Who cares what I think at all, let alone to such an extent that he leaves the country when I urge him to do so? Most people aren't even prepared to stop voting Tory on my urging.
Heaven preserve us from the literal-minded. Since nobody ever takes my advice anyway, I can urge them to emigrate with the pretty firm conviction that they won't, plus the certainty that if they do they are very likely to improve their circumstances and escape the nasty consequences of staying here for the next 50 or so years. This seems to me to be completely responsible behaviour. Though my advice is good, and I feel no qualm in offering it, I am making a a point about the inevitability of severe national decline, not setting up a travel bureau.Even if some of them do leave the country, 'mass emigration' is rather unlikely outcome. ***
And I merely said that I didn't think the argument was worth pursuing as I know you are intransigent on this point, but please correct me if I'm wrong.
***PH: Arguments are always worth pursuing, if you have anything to say and are confident of your position. Otherwise best not start them, especially by publicly criticising other people, as he sought to criticise me. Targets of such criticism will tend to riposte. they'll also tend to know more about their own position than their critics do.
Offers to 'agree to differ' (except over matters of faith or taste, where the question cannot be resolved through fact and logic) are always pathetic white flags. You learn from arguments by carrying on to the end, and accepting your defeats. What he ought to have learned is that he was wrong, but he will not learn it properly until he admits it.***.
Posted by: Gadjo Dilo | 05 November 2016 at 11:10 AM
and Tory politicians will still call for 16.8 million people to be executed (seriously, that was a suggestion to make any mention of the EU a capital treason, claimed as a joke later, but we all know it wasn't, the only reason any conservative such as your self opposed the EU blood lust)
Posted by: rob godfrey | 05 November 2016 at 09:30 AM
@Mr Hitchens,
Thank you once again for your detailed reply.
My apologies to all Maltese readers in assuming that one might live *on* their country as one might on a small rock in the ocean.
I don't think we're going to make much progress here. I get the impression that you don't want to make any suggestions about what Britain should do if/when it leaves the EU, and indeed you don't have to.
Ok, you are not getting the exit that you wanted, I appreciate this better now. And even a possible upcoming general election probably ***PH laughs 'Probably?'***) wouldn't deliver a True Conversative party made up of dissident MPs at such short notice. Ah well.
As regards immigration, I'm not sure why anyone would deliver advice that wasn't workable, except simply to register some sort of protest or for reasons of personal catharsis.
***PH notes: I have many times said here that telling the truth is a virtue in itself. In simple utilitarian practical terms it also has a purpose - we owe this to those who will come after us, so that they can if they wish avoid our errors***
I don't think it's going to be worthwhile discussing this further.
***PH: He means he now recognises he was mistaken, but lacks the grace to say so.****
Thank you for your time.
Posted by: Gadjo Dilo | 05 November 2016 at 09:07 AM
"Those who vote decide nothing. Those who count the vote decide everything." - Josef Stalin.
Much the same is true of the law and judges.
If you want to know why modern British judges are so dire, Google Judicial Appointments Commission. Basically, if you are not a PC, multi-culti, Lefty you don't stand a chance. Even-handedness and fair play doesn't come in to it.
Significantly, it was a creation of Tony Blair.
Posted by: Bill | 05 November 2016 at 07:49 AM