Roland Turner

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Brexit, Interrupted (UPDATED - This approach won't work.)

Update: 2016-11-06

Writing up an idea in detail can be an effective way to share it, but also to more quickly discover any errors in it by giving others the opportunity to scrutinise it. In this case, a significant error in my understanding of the role of the Supreme Court has been pointed out to me, large enough that the approach described below clearly won't work.

The only judicial function that the House of Lords has retained since the formation of the Supreme Court in 2009 is related to impeachments, which isn't relevant. As a result, cases on the legality of the government issuing an Article 50 notice without the consent of parliament will be heard at all levels of appeal within exclusively judiciary bodies. Further, time has been scheduled for the Supreme Court to hear the case next month, meaning that all avenues of appeal will have been exhausted before any Article 50 notice is issued.

The reverse psychology game remains a feasible strategy of course.

(original text below)

Why the punitive stance of multiple EU member states towards any population attempting to escape the EU's grip might actually help the UK to abort Brexit, even after notice has been given under Article 50.

If you don't know where you're going, you might not get there. 

-- Yogi Berra

I have been meaning since the first legal challenges to Brexit were announced earlier this year to describe a mechanism by which the UK government could potentially abort Brexit, with broad public support, even after an Article 50 notice had been issued. This definitely belongs to the category of ludicrously absurd conspiracy theories, except that events are playing out in a consistent fashion, particularly around the central question of whether parliament gets to authorise or veto an Article 50 notice. I would also point out that this mechanism is so uncertain that depending upon it as a primary strategy could be politely described as unforgivably reckless. That said, it might make enough sense as a safety valve that the UK government will have reason to fight very, very hard to keep parliament out of the loop, at least until the final moment.

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

-- The Lisbon Treaty, Article 50, Paragraph 1

This rather straightforward statement hides a world of detail in its closing words:

By itself this is not a terribly important distinction for Article 50 purposes, but it does mean that in the UK's case those words include - but are not limited to:

It is this last item in particular that gives rise to the mechanism that I have in mind. In contrast to most other EU member states (possibly all, I've not checked state-by-state), the UK's court of last resort is not exclusively, nor even primarily, a judicial body; it's a political one. This doesn't mean that they are able to disregard the law, but it is likely to cause them to make greater efforts than the courts of last resort in other member states to reach legally justifiable conclusions that are also politically savvy. The Brexit abort mechanism that this might enable is as follows:

A great deal of the above depends upon a view that the Queen of England is an active part of the governance of the UK rather than a mere figurehead and further that she's engaging in strategic planning and activity rather than simply fulfilling an operational role left over from the Medieval era. I can't prove that this is so, but would suggest that the view that she's simply watching and reacting doesn't make much sense: she's now the world's longest reigning monarch and has perhaps the most peaceful and prosperous reign of any post-1066 monarch of England, despite having had to dismantle the remnants of a global empire. This suggests an engaged and capable monarch, rather than a figurehead.