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This is an extraordinary and deeply irresponsible speech by a senior lawyer. https://twitter.com/JohnNemoBell/status/1180060667660951552
He denounces Parliament as “illegitimate” on the basis that it has opposed a crash out. That is irresponsible rabble-rousing: and the claim that it is inconsistent with the referendum ignores Vote Leave’s ridiculing even the remote possibility of a crash out (Gove quote).
It also ignores the fact that the electorate returned a hung Parlt, not a Tory majority.
And the vacuous May slogan “no deal is better than a bad deal” is a thin basis for arguing for an inviolable mandate, overriding MPs constitutional duty to judge for themselves, for a crash out at the say-so of a new and unelected PM.
The “Surrender Act” label is dishonest, for reasons set out on my timeline.
And Howe misrepresents the Act. The PM does not have to accept a different extension date put forward by the EU *if the HoC agrees to his rejecting it* (a point conveniently omitted by Howe).
It is ludicrous to suggest that it is unconstitutional to qualify the prerogative powers of the Crown in the field of foreign affairs. S.10 of the European Union Act 2011 (supported by Howe) did precisely that.
And it has been settled for generations that the prerogative survives only where Parliament allows it to survive.
As to complaints about the passage of the Bill through Parliament, HoC Standing Orders are subject to change by the HoC, as the HoC wishes. They are not immovable rocks on which our constitution is built.
And many Acts of Parliament have been passed rapidly, for good reason (as this one was, given the threat of prorogation): that does not affect their legal status.
To state - as Howe does - that the Executive is “entitled” to “subvert” the Act on those grounds is to challenge the fundamental democratic principle the the government has to obey the law passed by Parliament. It is a step on the path to arbitrary dictatorship.
Similarly, the claim that Cherry/Miller is a case where a “politicised” Supreme Court is undermining the rule of law is both false (see commentators such as @ProfMarkElliott and many others) and ignores the real threat here to the rule of law.
That threat is that some politicians (and, God help us, some senior lawyers who should and do know better) seek cheap applause by attacking judgments they don’t like as being politically motivated.
Finally, three sinister threats.
1. The threat to legislate to entrench Government control of the House of Commons. Supremacy of Parliament, anyone?
2. The threat to pass legislation to put the Supreme Court in its place. Vague (apart from a name change) but no less sinister for that, given that what is being contemplated is more than a name change. See Poland for the direction in which this sort of thing can go.
3. The threat to the Human Rights Act, heralded by the speaker introducing Howe.
A new Bill of Rights and Responsibilities. The “rights” will be our “historic” ones - which as any student of common law history will know, centred around property rights and were a bit thin on rights of vulnerable minorities.
As to “Responsibilities”, the inclusion of that term in proposals for replacement of the Human Rights Act recalls the transition in France in 1940 from “Liberty, Equality, Fraternity” to “Family, Work, Fatherland”.
Altogether, a sinister and irresponsible performance.
