Brexit

The Supreme Court Brexit challenge just got fascinating

The Goldsmith degringolade might just turn out to be one of the most important by-elections in modern history

BY Bruce Anderson   /  5 December 2016

For the next four days, we can forget about sound-bites, twitterings and the general meretriciousness which often afflicts current politics. The Supreme Court will be a forum for serious argument and debate. Moreover, its deliberations will take place in a much better atmosphere than seemed likely when the High Court ruled against the government. Back then, there were bellowings from some of the sillier Tory Brexiteers while – not to be outdone in the silliness stakes – Nigel Farage threatened a huge protest march. Worse still, some newspapers disgraced themselves. It turned out that one of the three judges was homosexual. So what? More recently, noisy idiots became ignorantly excited about Lord Neuberger’s wife. He will preside over this week’s hearing; she is a Euro-enthusiast. Again, so what?

During the last few days, however, the rule of good sense seems to have been restored. While It would be too much to expect apologies all round, let us hope that there is no backsliding. Two general rules should apply. Any MP who casts doubt on the judges’ motives stands convicted of moral imbecility. His constituents should ask themselves whether they really want to be represented by a noisy moron – or would they prefer to retain their self-respect? Any newspaper which sneers and harrumps as it gives over its pages to malevolent cretinousness should be deemed unfit to be used even as emergency cat-litter. That would be an insult to the moggy.

There were rumours that the government was going to concede defeat, which would have been a pity: a lost opportunity to witness the highest judicial prowess deployed on a very important question. Instead, the government is doing what it ought to have done at the beginning: strengthen its legal team. In recent years, successive governments have found it hard to appoint first-rate Commons law officers, as good lawyers seem more and more reluctant to become MPs. One who did, the late Paddy Mayhew, always insisted that he had gone into politics to get away from the law. But the poor fellow was quickly recaptured, and spent nine years, first as Solicitor-General, then as Attorney-General, before he was finally able to escape to the Northern Ireland Office.

Tony Blair tried one expedient. Two of his Attorneys, Gareth Williams and Peter Goldsmith, both able lawyers, were peers. Lord Williams was a success; Lord Goldsmith was not. Over Iraq, he proved to be so invertebrate that he went on kissing the Prime Ministerial boots even when Mr Blair was kicking his backside.


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There was an earlier remedy. Back in 1979, Michael Havers and Ian Percival, Attorney and Solicitor respectively, had never been regarded as possessing major legal intellects. Over Westland, Michael Havers was to display a firmness of character which Lord Goldsmith should have envied – and emulated – but he was not up to dealing with complex European matters. So he delegated them, to a Scottish Law Officer, the then Lord Advocate, James Mackay. Those who are competent to assess such matters aver that the Mackay opinions were models of their kind, as befitted a future Lord Chancellor.

That could prove to be a useful precedent. The current Attorney, Jeremy Wright, is a likeable fellow, but he may not even be in the Havers/Percival league. He has been reinforced, and it may be that another future Lord Chancellor is now on the case. Richard Keen, the Advocate-General for Scotland (the Lord Advocate’s post is controlled by the Scottish Parliament) has been drafted in. Connoisseurs credit him with a first-class legal mind and he will be assisted by Guglielmo Verdirame, a Professor at King’s London and also a lawyer of distinction.

So could they win? The balance of expert opinion has written off their chances and those sort of experts deserve to be taken seriously; we are not dealing with opinion polls. There is a wise adage: ‘a layman who tries to act as his own lawyer has a fool for a client.’ Let us take it further: a layman who sets himself up in judgment on these matters risks moving beyond temerity, into folly.

That said, Timothy Endicott, Professor of Legal Philosophy at Oxford, has produced a fascinating argument which does suggest that the government has a better case than it managed to convey in the Court of Appeal. Although his paper ought to be read rather than summarised, he focuses on the confusion and ambiguity surrounding the powers and status of the Executive, an almost inevitable consequence of 950 years of constitutional evolution, with no attempt to organise everything on the basis of systems and theories.

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It will be an interesting four days. But one point should be kept in mind. If the Supreme Court (oh, for the days of the House of Lords) were to rule against the government, it would not be ruling against Brexit. Nor would it be trying to frustrate the will of the people. It would merely be upholding the right of Parliament against an encroachment of the Royal Prerogative.

That said, and even if the Supreme Court takes no account of politics, its decision could have far-reaching implications. This is nothing to do with law. It is all down to the hapless Zac Goldsmith. For some reason, David Cameron decided that young Mr Goldsmith might become a serious politician. That was a bizarre – and uncharacteristic – misjudgment. Zac is a man of little education which should not matter. There is little worth educating and he has plenty of money. But it did start to matter when he blundered into politics. Admittedly he does have charm, but that merely enabled him to be elevated well above his ability, into positions where he could display thorough nuisance value. So: charm instead of brains plus stubbornness instead of judgment; it is almost worth losing a by-election to return him to the obscurity from which he should never have emerged.

But not in current circumstances. Until Thursday night, there was tacit agreement that if the government did have to legislate on Article 50, there would not be a problem. The Labour party is terrified of Ukip and would do nothing to risk a General Election. There would be sounding off, but no serious obstruction. Still demoralised by the slaughter of 2015, the Liberals too had no desire to revisit the electorate. But is that still the case? The Richmond result could have a transformative effect on Liberal morale. After all, no-one else seems interested in the forty-eight percent Remainers. It is as if they are simply supposed to surrender to a Brexit/Rousseau general will and accept perpetual disfranchisement. Someone has to offer them an electoral refuge, the Liberals are thinking: why not us? Suddenly, they may not be so afraid of another election.

That said, it does not matter what the nine Commons Liberals think. Without significant support from Labour, they could be brushed aside. But there are 100 Liberal peers, in a House where it is much easier to obstruct and filibuster. Most of them are Euro-fanatics. Moreover, many of them have an anarchic attitude towards procedure and also believe in Lords’ reform. They will have done their sums. If the Liberals could reach twenty percent in an election for a 500 seat upper house on the basis of proportional representation they would end up with – 100 seats. That may seem to be leaping ahead, piling assumption upon Pelion, Ossa and other assumptions. But it is not wholly implausible. It also means that the Lordly Liberals cannot necessarily be intimidated by the threat of reform leading to the loss of their seats.


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While all this is happening, the delays, rumours and confusion will be adding to the Tory party’s already growing stress levels. The Goldsmith degringolade might just turn out to be one of the most important by-elections in modern history.

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