The sovereignty of the people, and the battle of government and the Judges

It would  be completely unacceptable if the UK’s decision to stay for longer in the EU or to leave on the due date of October 31st fell to be decided by a few Judges. The people are sovereign. We exercised our sovereign right to decide  between Leave and Remain. We accepted the promises of the main parties in Parliament that they would implement our decision. The ballot paper did not qualify leave, or suggest we could only leave if there was a deal the Establishment liked. Electors followed up the referendum by electing a Parliament dominated by two parties promising to implement the vote. The public put the Lib Dems in a weak third pace on their proposal of a second referendum because they did not like the result of the first.

The sovereign people delegate their sovereignty to an elected government and Parliament to exercise for them between elections. The power of the people is restored at election time when we can change as many MPs as displease. Between elections the force of public opinion seeks to keep the MPs and government honest , loyal to its promises and keen to serve the public.

The relative power of Parliament and government has long been fought over in the courts and in Parliament. The law courts have usually accepted that matters of  high policy and politics are matters for Parliament alone. They have also respected Parliamentary privilege which allows Parliament to talk freely about all matters, save the details of an individual’s actions which are the subject of a live court case. Parliament  respects the sole right of the courts to determine the guilt or innocence of people under the criminal law, and their  right  to determine civil cases without Ministerial interference. Ministers may of course intervene or undertake an action  in a civil case by submitting a government view to the Judge for decision.

Government has been given powers to  negotiate treaties, propose budgets and submit draft laws to Parliament for approval. Government controls the timetable of Parliament but by convention allows regular days for the Opposition to specify the subjects that most concern  to them and to debate them. It does not provide Opposition legislation time. It is based on the assumption that government commands a majority of the House. If government no longer commands such a majority then  there must be a General election so the public can choose a government who can.

There are currently some MPs who are determined to break this constitutional settlement. They wish to assert Parliament above the government so that government can no longer function. They want to strip government of its powers to control the timetable, propose the budgets and the laws. They wish to irresponsibly spend money the government has not provided and pass laws the government does not accept, without themselves having the votes or ability to take the responsibilities of government on themselves.  Worse still, when the government challenges them to an election so the sovereign people can decide whether they want the government’s approach or do want to change to that of the Opposition, they block any such move.

The final irony is that an anti government alliance in the Commons uses its temporary power to propose a law to  put through an Act of Parliament to make the PM do what he does not want to do, placing all these huge issues under the courts. So far from making Parliament sovereign as they claim, by usurping the power of the people in  the referendum and denying an election, they   want to submit Parliament to the power of the law courts. How can they seriously suggest that through this Act of Parliament our departure from the EU should fall to be decided by Judges, who will be invited to slap down the Prime Minister to do so? What Judge would want to overrule the decision of the people in a referendum?



Posted in Uncategorized | 56 Comments

Last of the summer whine

Some Remain advocates are using David Cameron’s memoirs as an opportunity for another whine about the referendum.

I write to praise David Cameron. His decision to hold a referendum and to let the people  decide was a good one. I am glad to read that he defends it in his new book. He should be proud that he decided to trust the people to make this important decision.

I must now give David some advice. He should also be proud of the decision the voters made. He and the government he led was unequivocal. They told us they would implement whatever we decided. That implied he rightly though the UK could have a good future either way. I am very proud of the UK people voting as we did. We showed confidence in ourselves and our country. We saw that things can be better if we leave. As a man who led our country and studied public opinion closely for six years, he should welcome the clarity the voters gave him on this troubling issue.

I don’t like to think of David still worrying about the consequences of what he put in train. He should remember that the Lib Dems called for a referendum on In or Out of Europe . Labour supported the legislation he put forward to give us a referendum.  544 MPs voted for the actual referendum we held. The main parties at one time or another have all favoured a referendum, understanding that the mighty Treaties we have signed between our original membership and today did need to be put to the UK electorate directly.

I would also argue that we show ourselves to be good Europeans by voting to leave. The EU project today is to seek the full political union  that the large currency, economic and monetary union requires to make it successful. As the UK under governments of all three main  parties has refused to join the Euro, we need to get out of the way to let all those who do want a much fuller union to complete their construction. Out of the EU we can spend our own money, make our own laws and be truly global in our outlook and reach. The sooner we do so the better.

David tells us he would like the country to pull together more. He can help it do so by using his book launch to urge all his friends to get behind Brexit and help us make it a success.

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Parliament, government and the courts

We live in a relatively free society with some separation of powers. The common law evolves through court decisions by Judges. Parliament can at any stage seek to change the law by an Act of Parliament. Statute law commands respect from the courts and can override common law but the courts do not always “obey” it. They interpret it. Sometimes they interpret it in ways that Parliament dislikes and regards as a distortion. In such cases Parliament can legislate again to give a clearer instruction to the courts.

All our current domestic law and all the powers of government, Parliament and courts are subordinate to the EU Treaties, EU regulations and directives and to judgements of the European Court of Justice. An EU law can override or strike down an Act of Parliament or a judgement of our Supreme Court if appealed to the ECJ. That was the kernel of the referendum debate for many people, with many Leave voters wishing to restore our domestic rule of law without EU supremacy.

The courts reserve the right to query or even ignore Statute law if they think an Act of Parliament is unclear, or violates human rights or some other superior law or legal principle. A law has to be clear, fair to all and enforceable. An Act of Parliament saying the sun must shine tomorrow, or saying 20 year olds must get up at 6 am or saying people whose surnames begin with an A cannot be allowed a driving licence would all likely to be void for good reasons.

The courts traditionally have not interfered in matters of Crown or government prerogative or high politics. They have tended to take the view if asked that Parliament has the necessary power to curb or remove a Prime Minister who uses Crown prerogative in ways that annoy MPs, who in turn will be influenced by public opinion on these issues. If a PM ceases to please Parliament can remove him or her by a No Confidence vote.

The courts have also taken the view that where an issue is hotly contested between parties and factions within the public, it is best to let politics and Parliament sort out the disagreement. It would be unacceptable if the UK’s departure or staying in the EU fell in the end to be decided by a judgement in the Supreme Court. Of course the Supreme Court needs from time to time to find against the government in judicial review cases where litigants are challenging the way government has made a decision or enforced a policy. That is not the same as the Supreme Court presuming to itself the unique power to settle the biggest political question of the decade. However big a mess Parliament has made of it, this needs to resolved by Parliament. If Parliament finds a way to get us to remain in the EU after October 31, then it will fall to the electorate to remove from office those who have failed to implement the will of the people.

Posted in Uncategorized | 210 Comments

Yellowhammer – is that it?

The Yellowhammer document when released turned out to be thin and poorly researched.

A lot of it which went largely unreported was grudgingly reassuring. Our water supply will be fine. We will still have normal services for electricity and gas.  Demand for energy will be met. There will of course be no overall shortage of food. There is a “low risk of significant sustained queues at ports outside of (sic) Kent”.

Perhaps the worst warning was that a large number of foreign vessels might  still be fishing in our waters, and doubt is expressed about our ability to enforce the return of our fishery to UK control immediately. I think I have higher expectations of our coastal patrols and of the conduct of our neighbours than that, who should want to obey the new law.

The two worries the Remain press have concentrated on are the unproven suggestions that there could be shortages of some imported medicines and some imported foods owing to delays and congestion at Calais. At no point does the document suggest we will create delays at Dover, and the paper accepts that the UK is not going to impose delay inducing barriers and extensive checks at our border. Their worry about Calais, denied by the port authorities there, is that the new checks at Calais will defeat UK truckers seeking entry to France and will create queues. This in turn I suppose they think might delay the lorries going from Kent to the continent to pick up continental products to come back causing knock on effects on the Kent side. As many of our lorries go out empty this seems unlikely. Most of the full ones are run by large logistics companies or directly by large exporting companies who will I am sure be able to complete the electronic documentation in advance of travel to meet the requirements. That is what they are paid to do, and what they do for non EU trade today.

I was talking to a food importer this week who is looking at taking more product for the  north via Immingham, discovering it is quicker and cheaper than the Dover/Calais route. Some will do this, and more would do so if problems did start to emerge at Calais.

This worst case wrongly assumes markets stop functioning. Logistics is very competitive. There are many options. During our years in the EU the Calais/Dover route has sometimes been troubled by strikes, ferry and train delays or cancellations, crashes and congestion on the  motorway networks either side of the channel,  but we  have never run out of food or   medicines. If   a complex supply chain is disrupted by French strikes you choose a new sea route or  resort to air freight to see you through . Yellowhammer implies Dover is fine, subject only to too many Calais delays caused by UK trucks not complying with standard customs and shipment filings. It is difficult to see why this should happen, as it would be bad logistics business to do that. There would also  be plenty of other options for frustrated customers  if they tried it.

Posted in Uncategorized | 245 Comments

A big political upheaval in Parliament as MPs realign

This Parliament has been characterised by a record number of Ministerial and Shadow Ministerial resignations, and by a large number of MPs deciding to resign from the party they belonged to during the election. Many of these resignations have been over differing approaches to leaving the EU, with a trend for MPs elected on platforms to leave moving over to stances and parties that wish to remain. It appears that UK politics is currently realigning on the basis of Leave or Remain, with the SNP and Liberal Democrats standing for Remain, the Conservatives for Leave, and Labour caught trying to straddle the two positions. The Deputy Leader has now declared for Remain, against his Leader who wants to be ambiguous.

The Conservative party has currently lost the most MPs, with 29 now resigning the whip or having the whip removed. Most have become independent MPs. Four left to join Change UK alongside 7 Labour founders of that brief movement. 3 have now joined the Liberal Democrats. Nick Boles resigned the whip to become an Independent Progressive Conservative.

Labour has lost 15 MPs. The issue of Mr Corbyn’s style of leadership has been an important factor, as well as the party’s changing and vague stance on the EU. Several have gone citing the party’s lacklustre response to antisemitism charges. Some are now Labour Independents, whilst others are in the Lib Dems or joined Change UK when it was first set up.

The Lib Dems as the most pro EU national party has picked up 5 seats, whilst losing one of its original MPs to independent status. He had promised in the 2017 election to honour the referendum result and rightly thinks his party no longer offers that.

This unusually high turnover has occurred with none of them thinking they should test their new views and new party loyalty in a by election. Electors are understandably angry where their MP has switched from say Labour to Lib Dems from a party that claimed to support Brexit to one that fundamentally opposes it, without asking for electoral endorsement. An MP moving from his or her party to be an independent, if they say they are doing so while still sticking with their policy promises at the last election have a good case for saying no to a by election, in contrast to those shifting from a Leave party to a Remain party in order to support Remain.

Conservative 288 minus 29
Labour 247 minus 15
Lib Dem 17 plus 5
Change UK 5 plus 5
The Independents 3 plus 3

Independent 32 plus 31

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The government says it will respect the law

Yesterday the government rightly said it would respect the law. It also hinted at a major problem with the European Withdrawal Number 2 Act recently passed by both Houses. It is by no means clear how the government could comply with it, especially given the Kinnock amendment incorporated into it. The rule of law is an important concept. It usually includes the propositions that law has to be clear, reasonable and enforceable. Statute law carries the authority of being passed by Parliament but still needs to meet these tests for the court to enforce it. Quite often the courts and Parliament have exchanges about what the law means and how it should be applied.

This European Withdrawal Act of Parliament says the government “must seek to obtain from the European Council an extension” to UK membership for three months, if no agreement has been reached which Parliament approves . It goes on to give a reason – “to debate and pass a Bill to implement the Agreement between the UK and the EU (The Mrs May Withdrawal Treaty)…including provisions reflecting the outcome of the interparty talks as announced by the Prime Minister on 21 May 2019, and in particular the need for the UK to secure changes to the Political Declaration to reflect the outcome of those inter party talks”.

So the government is asked to pass a major piece of constitutional legislation which the Parliament has three times rejected, with no promises or guarantees from the official Opposition they will change their mind and now vote for it in a Parliament where the government has no majority and has numerous government supporting MPs who do not  agree with the Agreement. In addition it is asked to negotiate a new Political Declaration to include unspecified outcomes from talks which both sides said ended without agreement . Who will share with us what were the outcomes of the talks that now have to be negotiated into the Political declaration and what if he EU will not consent to those changes?

The draft letter laid down in the Act for the PM to send requesting an extension does not offer any reasons to the EU why an extension should be granted because it was drafted on the assumption the Kinnock amendment would not pass. The EU has previously said it would grant more time to secure the passage of the draft Withdrawal Treaty agreed with Mrs May, but later concluded the UK Parliament was not going to pass it given the long and acrimonious debates and the three votes against. The EU has also said it might grant an extension for an election or second referendum, but Parliament has expressly voted against an early election to resolve matters, and has not supported a second referendum on the various occasions it has considered this idea. There cannot now be an election prior to the exit date currently enshrined in UK and EU law.

How could anyone  enforce a law of this kind on an unwilling government when Parliament is asking the government to do something which cannot be done or is based on a false assumption? The evidence is Parliament does not want to vote for the Withdrawal Treaty unamended, and there is no agreed set of changes to the Political declaration emerging from the inter party talks to take up with the EU. This law is a mess. It does not mention a so called “No Deal” Brexit, and does not take it off the table. It seeks to exit the EU based on the current Withdrawal Treaty which has thrice been rejected by the very same Parliament passing this Act. Government lawyers need to analyse this Act carefully.

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Parliamentary office

Parliament is not in session but my Parliamentary office will be working as usual Mondays to Fridays. I continue with all my Parliamentary duties minus Parliamentary debates and votes, both in the London office and at home in the constituency.

Posted in Uncategorized, Wokingham and West Berkshire Issues | 9 Comments

Number and length of contributions

I am receiving too many contributions from the same blogger and too many long contributions. As you can see the numbers have escalated sharply recently. I will have to delete more if from the same person each day or if they are long. Please send me your best single contribution each day and keep it to around a paragraph, unless you have researched argument which is new. I am very busy with many matters of national policy and in the constituency.

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My speech during the debate on the European Union (Withdrawal) (No. 2) Act 2019 (Rule of Law)

John Redwood (Wokingham) (Con): Of course the Government and all Members of Parliament must obey the law, but Parliament must also pass wise laws and pass them according to our traditions, practices and rules. I wish to concentrate briefly on the question of the wisdom of the law and urge those who sponsored it to think again in the national interest.

This is no normal law. A normal law applies to everyone in the country equally, there are criminal penalties for those who break the law, and we wish to see the law enforced. This is not that kind of a law. This Act of Parliament is a political instruction to our Prime Minister about how he should behave in an international negotiation. Normally, this Parliament takes the view that international negotiations are best handled in detail by the Government, and we the Parliament judge the result by either approving or disapproving of it.

I urge colleagues to think again, because two things follow from Parliament instructing the Prime Minister in the way it has sought to do over this negotiation. The first is that the EU, the counterparties to the negotiation, can see that this Parliament has deliberately undermined the position of the lead negotiator for our country. It will take note of that, and instead of giving things it will say, “There is no point in giving things.” The second thing—even worse—is that the EU will take note that our Prime Minister under this Act is to seek an extension on any terms the EU cares to dictate. How can anyone in this House say that is good law or justice or makes sense for the British people? Those of the remain persuasion, just as those of the leave persuasion, must surely see that this is not the way to treat our lead negotiator—putting our country naked into the negotiating chamber with the EU. It puts the country in a farcical and extremely weak position.

I thought that the Labour party wanted us to leave the EU. Labour Members did not like the withdrawal agreement—I have sympathy with that—but they do not like leaving without the withdrawal agreement—I have less sympathy with that—so they are looking for a third way. They presumably think they could do some other kind of renegotiation, but they have never explained to us what that renegotiation would be like, and they have never explained how the EU would even start talking about it, given that it has consistently said we either take the withdrawal agreement or just leave.

Adam Afriyie (Windsor) (Con): The Opposition have taken a really bizarre position. They have said that, even if they did manage to negotiate a new deal with the EU, they would campaign against it. It is a really odd position for this nation to be in.

John Redwood: That is even more bizarre. Normally, Governments do their best negotiation and then come back and recommend it to the House of Commons. It would indeed be fatuous if we ever had a Government in this country who negotiated a deal they knew they wanted to reject. They should not waste everybody’s time and just say, “Let’s leave without a deal.”

We are wandering a little from the point of this debate, which is about the rule of law. This House of Commons should think again. This is an extremely unwise law. It undermines the Prime Minister, but, more importantly, it undermines our country. It makes it extremely unlikely that those remain-supporting MPs who could live with our exit with a variant of the withdrawal agreement will get that because they have deliberately undermined the pressure our Prime Minister may place on the EU in the negotiations he is trying to undertake. Even worse, they have invited the EU to dictate terrible terms for a few months’ extension, and why would the EU not do it? Please, Parliament, reconsider. Parliament has a duty to put through wise laws and to represent the national interest. This miserable Act is an act of great political folly and is undermining our country in a very desperate way.

Posted in Debates, Uncategorized | 70 Comments

How pro EU are you

We did not hear from the usual pro Remain contributors to this site what kind of Remain they wanted. So let’s try another approach to get them talking about the EU. Here is a simple test of how pro EU membership you really are.

  1. Do you want the UK to join the Euro soon?
  2. Do you want the UK to join Schengen and have common borders with the EU?
  3. Do you want the common EU defence and security identity to develop, so our forces typically are deployed for EU led missions?
  4. Do you want a larger EU budget, with more transfers to the poorer countries?
  5. Do you think the UK should reduce its current special abatement of contributions, to help the wider EU?
  6. Do you welcome   the long term aim of the EU’s ever closer union which  is political union?

If you answer Yes to all six then you are indeed a keen advocate of EU membership and understand its full implications. If you say No to all these then maybe you should accept the UK cannot remain in the present EU, with so little in common with the aims and aspirations of the other members. Given the direction of travel and the legal form of the EU disagreeing with any one of these propositions makes the UK’s position difficult and means we cannot be at heart of the project. Nor can we claim to be a leading influence on the EU if we disagree with these common strands of EU thinking.

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  • About John Redwood

    John Redwood won a free place at Kent College, Canterbury, He graduated from Magdalen College Oxford, has a DPhil and is a fellow of All Souls College. A businessman by background, he has been a director of NM Rothschild merchant bank and chairman of a quoted industrial PLC.

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