Supreme Irony of UK’s Position on Withdrawing from the EU Withdrawal Treaty & What Will Happen Next

Great 👍 troll by S Braverman, UK attorney general and my old law classmate from Cambridge.

Her legal position on behalf of UK government cites the UK supreme court’s unanimous Miller 2 judgment as basis for Parliament’s “sovereignty” (should be “Supremacy”) to overrule the Withdrawal Treaty.

Anyone who recalls the last four years of Brexit soap opera will remember the whole mess kicked off when the Brexiteers tried to claim Parliament didn’t have the right to consider or the duty to approve the Withdrawal Treaty and Trade Agreement.

In the Gina Miller I case the supreme Court found that because the Withdrawal Treaty erased rights of citizens, the Magna Carta and the Bill of Rights as well as precedent prohibited the Crown from entering into the withdrawal Treaty without Parliament’s consent.

That’s when Brexiteers began to focus on the “People” and how Parliament had no right to interfere with the People’s will as expressed in a referendum that Parliament had allowed in the basis that it was merely “advisory”.

Then in the pro-rogation case (Miller II), the govt argued the Royal pre-rogative powers (exercised by the PM on behalf of the monarch) were unlimited and couldn’t be constrained either by the Courts or by Parliament.

Now, full circle central (you’d almost think they were making this up as they went along without any lawyers) UK govt seems to be saying that Parliament by enacting changes to the domestic UK legislation that enshrines the Withdrawal Treaty into domestic UK law can, in itself, actually automatically amend the Treaty.

The rub for UK govt is that the exclusive right to sign a treaty belongs to the monarch (that right exercised by the PM on behalf of the monarch).

And all Parliament can do (currently- UK govt might force Parliament to legislate power away from the monarch to sign treaties which would be revolutionary and not very conservative) is to amend the domestic legislation that the wording of the treaty itself obliges Parliament to enact: by signing the treaty on behalf of the Monarch PM acting for the Monarch commits to ensuring domestic legislation reflects the wording of the treaty itself.

At that point, Parliament (and the PM wearing the hat of the leader of the biggest party in Parliament) will be in conflict with the Sovereign (and the PM wearing the hat of the sovereign’s premier minister) who signed the treaty giving their word to the EU27 that Parlianent would pass into law the treaty obligations.

So the same govt that is still annoyed that the Supreme Court curtailed what it saw as an absolute right to prorogue Parliament for as long as it wants (using powers lent to the govt by the Monarch) is now gonna end up in the Supreme Court arguing that Parliament has the absolute and unconstrained power to interfere with the Monarch’s prerogative power:

Prediction: in Miller III the Supreme Court will find in favour of the monarch’s absolute right to sign treaties, on behalf of the State.

Or, an attempt by PM Johnson to force the Monarch to denounce the Withdrawal Treaty will be sent by the Monarch (or a concerned citizen) for review by the Supreme Court. The Supreme Court will find that the Monarch in these circumstances has a duty to refuse the PM’s “advice” to denounce the Withdrawal Treaty because doing so would infringe the rights that treaty gives to citizens in Northern Ireland to avail of EU rights.

And for now let’s leave aside that the “people” in an election campaign fought almost exclusively on the question of whether or not the “People” approved of the content of that (then draft) treaty consented to the treaty. It was a manifesto commitment which the govt is claiming actually wasn’t (Sammy Wilson on Radio 4 this am).

So the same hucksters who were banging on about the “will of the people” for four years setting up the people against Parliament are now setting up a battle of Parliament against the Monarch and the People.