Fascist law is characterised by its undemocratic methods (ie judges, not parliament making law of a highly political nature) its anti democratic effects (ie the people’s will is attacked and their rights removed) and arbitrary application (ie the law applies to some people and some circumstances but not others)
The Appeal Court’s judgement in the Brexit case is the most blatantly fascist judgement ever made by a British court. It applies a completely different law to the UK’s withdrawal from the European Union than was applied to the UK’s entry into the European Union. The judgement (on a majority of 8:3) therefore destroys the fundamental principle of democratic law that the same process of law making must be used in reverse to
effect the law’s repeal. Without this the law becomes an arbitrary, politicised tool of unaccountable power.
The judgment also know-tow-ed to the ludicrous claim by the instigators of the case that the process which took us into the EU (EEC) and removed the right of voters, parliament and the British Courts to make law in the UK would, if used to re-assert those rights by leaving, “remove parliamentary sovereignty”.
A more laughable contradiction of the truth would be hard to imagine – but here we have the so called “Supreme Court” in Britain supporting this grotesque claim. The stench of establishment hypocrisy is unbelievable.
By denying the Government the use of Crown Prerogative powers to trigger Article 50 the court effectively said that the original signing of the Accession Treaty (also by Crown Prerogative powers) was illegal. So they should have declared the whole UK-EU relationship null and void and that there was in fact no need to formally leave what we had never actually legally joined.
Contrary to the claims of the Plaintiff in this case the decision to revoke our EU membership by triggering Article 50 in no way affects the “rights of the people of the UK” since all the rights in all the Acts of Parliament since we joined the EEC in 1972 remain on the statute book. What exit means is simply the restoration of the untrammelled right of our Parliament (representing the sovereignty of the British people) to govern.
Far from denying the rights of Parliament, triggering Article 50 immediately restores Parliament’s sovereignty – leaving MPs after Brexit to accept or repeal any and all laws which arose during our membership of the EU.
When the UK signed the Accession Treaty in 1972 there had been no legislative approval by parliament, no MP knew what the Government was negotiating and there had been no referendum of the British people set in train by an Act of parliament with the Government asserting that “the people will decide”. The exact opposite is the case today.
Crown Prerogative powers, if they are illegally used today to withdraw, were certainly illegally used in 1972 to join. But when the late Ross McWhirter, prior to ratification by parliament in 1972, questioned the powers of Crown Prerogative to innovatively change our constitution and the powers of Parliament, the judges ruled in favour of Crown Prerogative.
And at a later date, when presenting legislation in Parliament to ratify the Maastricht Treaty, Douglas Hurd set out the accepted position: “Parliament cannot overturn the Maastricht Treaty” – i.e. treaty law is separate from UK law. Equally today Parliament cannot overturn our rescinding of the Accession Treaty – especially as the true sovereigns – the people, have spoken according to the legislation passed so convincingly by parliament itself.
If the judges in the original Brexit case and the 8 judges in the “Supreme Court” are appealing to the sovereignty of parliament and its law making powers then they are appealing to something that was flatly contradicted when the UK joined. One of the great principles of law making is that certain laws are of a constitutional nature and are pillars of the entire British democratic system. They typically lay down the irrevocable principles for other laws and they are a template for generating other laws.
Such constitutional legislation, it has always been laid down, must be EXPRESSLY repealed by any new law contradicting them. In a recent lecture Lady Brenda Hale, Deputy President of the Supreme Court of the United Kingdom, articulated this principle:
“The recognition of the importance of these rights is accompanied by a principle of statutory construction – the principle of legality – which requires Parliament expressly to legislate to limit fundamental rights – and thus openly to confront the political controversy entailed.”
But that did not happen when the UK entered the (then) EEC when critical constitutional acts like the Act of Settlement, Magna Carta, the Treason Acts, the Coronation Oath Act and critical case law on Parliament not binding its successors, were overturned without any express repeal – or even specific discussion (as the late Norris McWhirter and I showed in our 1993 constitutional treason charges in connection with the Maastricht Treaty – see books on this website or amazon ebooks).
So when the three judges in the Article 50 case said that the Government’s case
“gave no value to the usual constitutional principle that, unless parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”
the Court was in fact condemning the very act of surrendering the sovereignty of that parliament in 1972 when just those powers were used to commit by Treaty Law to the EU Accession Treaty – without Parliamentary approval.
So now we have 2 reasons for asserting that the UK was never a member of the European Union.
- The illegality of contravening (in the Accession Treaty, the Maastricht Treaty and all other EU Treaties) the principle of express repeal – which judges have just miraculously re-discovered
- This judgement in the Supreme Court which effectively says that Crown prerogative was illegally used to sign the Accession Treaty
The UK’s constitutional principles should again, as Lady Hale notes, be “at the forefront of the Court’s analysis” but neither the people nor the Supreme Court should permit a situation whereby the first step in the original surrender of sovereignty should be opportunistically barred as the first step in restoring that sovereignty.