BORIS’S ‘£350million for the NHS’ bus can return to the depot, now that the court has thrown out the summons. The Crown Prosecution Service is careful about charges of ‘misconduct in public office’, with their potential to exact political revenge, and a maximum penalty of life imprisonment.
This case was never going to bust Boris’s tyres. His claim, although misleading in a couple of respects, was right about the pre-rebate figure. Sloppy work overall, but Johnson left detail to the mechanics while he concentrated on steering – like a typical leader, for as a German general said: ‘Anyone who is both clever and lazy is qualified for the highest leadership duties, because he possesses the intellectual clarity and the composure necessary for difficult decisions.’ All we can do is hope that if the mercurial BoJo gets behind the UK’s wheel the destination is actually Brexit, not another mystery tour.
Or maybe we’ve already got there? Lawyers are arguing that we have, from two different angles.
One is that the EU fluffed its extension of the time limit for the UK to leave under the provisions of Article 50 (3). This says that in the absence of a Withdrawal Agreement, the exiting State will have left after two years ‘unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period’. In a paper updated last week (3 June), Stanley Brodie QC interprets this clause as excluding conditional, multi-choice extensions, like the 12 April/22 May one, or successive extensions.
However, the phrase ‘to extend this period’ does not expressly rule out serial reprieves or alternative end dates, and there is no preamble or rubric to help define terms and underlying intention. We must remember that the EU has a record of making legal vagueness suit its purposes – which is how, for example, it trapped the Heath government into unwittingly giving the Common Market the right to fish our waters right up to the pebbles on the beach.
We could look for circumstantial clarification from the man who actually wrote Article 50, but his evidence is not encouraging. Lord Kerr (still with us) has said that Article 50 (3) was meant to help minimise disruption to the EU in the event that ‘a dictatorial regime would . . . want to storm out’. So the time limit was intended not as a ‘hurry-up’ deadline but its exact opposite: a delaying device, giving the EU up to two years to work out a deal with the errant state, and even more time if needed and provided the latter is willing.
It seems that the odds here are against the Brexiteers.
An alternative approach is due to be tested in the High Court within weeks. Robin Tilbrook says that the Prime Minister did not have the authority to agree deadline extensions on her own initiative and needed to go through the Commons and Lords first. If the use of Royal Prerogative was ultra vires and now that the original deadline of 29 March has passed, it follows that we are now out of the EU.
Against this is the detailed rebuttal by EU law expert Anneli Howard, who contrasts this case with the one brought by Gina Miller. One of Howard’s points is that a deadline extension preserves citizens’ rights whereas ruling it out curtails them.
She also observes that courts are not the place ‘to air public opinion or polemical debate’, and if anything that is her most cogent argument. The Tilbrook suit may possibly be technically correct, but when the EU, the Government and most of Parliament is on one side, it would be a brave British court to make law against them. Judges make rulings, but they don’t make the rules.
Parliament is sovereign, and can undo what it has done. When Winston Churchill suffered a Commons defeat on 30 March 1944 (the Education Bill) he said, ‘I am not going to tumble round my cage like a wounded canary. You knocked me off my perch. You have now got to put me back on my perch.’ And so they did.
At bottom, this is not about law but political will. Votes are divisive and the country is divided; reprehensibly, the political class and its media acolytes have prolonged, widened and hardened that division instead of reuniting the nation. There is much work to do to reconnect with the electorate.
And if we are to resemble a democracy, the time has come to stop treating the people like gullible dimwits. Boris’s bus claim was a gift to Remainers, since it gave them a fact to argue against, and the link with the NHS was too obvious a tug on the British heartstrings. This was a tabloid approach to a broadsheet issue.
There are many good reasons for Brexit – democratic, economic, financial, social, military. Getting out is not the end but the very beginning of a long struggle against a nascent world order run by and for massive multinational businesses and their lightning-fast capital flows, and the imperial powers that serve them and themselves. Eye-catching slogans will no longer do.