Illustrations by Hannah Robinson
Usually, when a rebellion arises in the Conservative Party I rejoice. There are still some conservatives in the party willing to stand up for something. However, this most recent rebellion has all the markings of a Remainer plot to frustrate Brexit once more. Unlike previous legal challenges to both Theresa May’s triggering of article 50 and Boris Johnson’s prorogation of parliament back in 2019, there is not a shred of legitimacy in the complaint. This attempt to bring the courts into the Brexit process is premised on deliberate ignorance of the law and shows a complete lack of consistency in how these legal activists want the British constitution to work.
Both previous Brexit Supreme Court cases limited the PM’s prerogative powers in some shape or form. Important treaties that impact domestic law now may need parliamentary approval for repeal or amendment (this case upheld the supremacy of parliament). Furthermore, the Supreme Court has interfered in the process of prorogation. The court’s reasoning here was awful. Something that could and should have been regulated by a parliament with constitutional supremacy has become regulated by an increasingly interventionist and political court, raising serious accountability concerns.
The courts wanted to empower parliament and suggested that in some way this would uphold parliamentary supremacy once more. If the courts do not throw this recent legal challenge to Brexit, it will have shown itself to be wholly biased and unfit for purpose. If parliamentary supremacy is (as it should be) our guiding principle, then the courts ought to stick with that reasoning. The internal markets bill is to the courts something to be passed by parliament. If it wishes, it can do whatever it wants in regards to international law because of parliamentary supremacy (something the courts have found very helpful in frustrating brexit). The courts must interpret the will of parliament, and the interpretational presumption in favour of meeting treaty requirements would quite clearly be circumvented by the internal markets bill. The Remainers cannot use the argument from the Article 50 or prorogation court battle because Boris has not denied parliament its say – legally this is open and shut.
Then there is the issue of international law which has been assigned a holy status by people who must be unaware of the countless treaties that we enter, leave, amended, outright ignore, or fail to comply through negligence. International law is not in every incarnation some forceful presence able to bind states; they are wide-reaching agreements with differing levels of legal status, depending on which states have signed and ratified (two different and potentially exclusive things). In many cases international law is wholly unenforceable, widely ignored, and functionally useless due to lack of signatories. All the internal markets bill reflects is a government willing to play the EU at its own game and use every tool possible to deliver Brexit. The bill doesn’t even amend the agreement, it simply empowers the government to do so at a later date.
What about the morality of the situation? During the 2019 prorogation fiasco, it was claimed Bojo had broken the spirit but followed the law. He bent the rules for political gain. So what? At every twist and turn Remainers hold backdoor meetings with EU officials, drag decisions through the courts and attempt to rush amendments through parliament by bending conventions with the assistance of a speaker accused of strong political bias. If the conventions and peculiarities of the UK constitution are to be weaponised by one side, then why shouldn’t the other join in?
All I can now do is pretend to act shocked when Ex PMs tell us this bill does what our virtuous defenders of justice conveniently forgot they have done previously. But the truth is not a single atom of my body cares. If Boris Johnson’s Brexit bill broke the Geneva convention then I would understand the anger, but this is international wrangling over a technicality. Nothing more.