War, Carl von Clausewitz once said, is the continuation of politics by other means. It’s increasingly clear that when you make a decision that irritates the legal profession, much the same can be said of the law.
In my defence of the royal prerogative earlier this month I highlighted an Independent op-ed by Geoffrey Robinson QC which set out explicitly how the legal challenge to Article 50 was about blocking the result of the referendum. In yesterday’s Daily Telegraph another QC set out the next stage of the process.
Adopting the prickly tones of Scottish nationalism, he writes that Nicola Sturgeon “is right to demand proper respect for the will of the Scottish people. And this is how she gets it.” How is that?
Now the Scottish Government is involved in the legal challege, Jolyon Maugham wants it to get legal confirmation from the Luxembourg court that Article 50 can be reversed. Once this is established, he believes, MPs will have regained the ability to block Brexit, and Scotland can “wrest back control of its future”.
Would this work? Maugham’s article argues that “Voting down the deal – and here’s the important bit – would mean withdrawing the Article 50 notification and Remaining” but it isn’t clear why this would be automatic unless it were a condition attached to the passage of the original Article 50 vote or bill. Nor is it clear that Labour would join the SNP to vote leaving down.
Nonetheless, the danger is clear. Leaving the door open to reversing the result would cripple the negotiations. Both Brussels and our own die-hard Remainers would have no incentive to knuckle down and make the best of Brexit when two more years of ‘Project Fear’ could shift the public, whilst their separatist allies would have an escape from their ‘Brexit dilemma’ and more opportunities to stoke the levels of grievance they need (but have yet to achieve) to break this country up.
I’m loathe to see the Government abandon the appeal. I believe in the royal prerogative, and both Karl Gardner, a former Government lawyer, and Adam Tomkins, a Conservative MSP and legal professor, are ardent Remainers with persuasive cases against the High Court’s judgement.
But should they do so, or should the Supreme Court find against them, then it’s clear that Theresa May must act decisively. She must secure from Parliament the authority to deliver Brexit without further reference to it, or force a general election to secure the mandate and majority to do so.