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Et in Albania ego

11 July 2016

The full horror of Gove’s legacy has yet to strike most people, although what we did on 23 June was so monstrous that many of us remain in shock, unable to work through our feelings on social media in any coherent way. There has however been some excellent journalism in response to the national auto-da-fé, and in such volume that there has seemed little point in adding to it.

One area that is beginning to dawn on people (although in fairness UKIP pointed it out years ago, and I’ve been tweeting about it for some time) is just how disadvantageous to Britain’s position are the terms of the exit procedure under Article 50. The 2 year deadline to the abyss is appallingly asymmetric. It was of course designed thus, to make exit through this procedure highly unattractive. Lord Howe’s remarks about sending in the batsmen with their bats already broken by the team captain come to mind. No wonder Europe has made it clear that they won’t commence negotiations until we invoke Article 50: otherwise we could ensure we have a fair and balanced deal before the fuse is lit – with the walkaway option which many in Europe think we are sensible enough to want up our sleeve.

But one recent initiative, however well intentioned, seems curiously misconceived. A number of different groups of lawyers are seeking to force the House of Commons to vote before Article 50 is invoked. The idea is that the prime minister (contrary to what David Cameron has said) does not have the authority (under the Royal Prerogative) to serve notice under this article for a number of technical reasons which are analysed at great length (perhaps too great length, as certainties rarely require such detailed exposition) in several legal opinions and open letters which are now circulating on social media.

But what are these groups seeking to gain? By forcing the Commons to vote now they hope to have the referendum reversed. Wishful thinking. What politician would dare to participate in a vote to overturn the will of the people only weeks after it was expressed? And while legal steps might compel the Commons to hold a vote, it is hard to see any compelling legal argument as to why that should be a free vote. Which of the Tory leadership hopefuls would dare to suggest that the vote not be whipped – and enforce the new Government policy, which they have all acknowledged must be to execute the will of the people?

The result of this intervention, even if successful, will be to ensure that the Article 50 notice served within a few months is properly lawful.

Here’s a better idea. Let the new PM serve the notice without the vote. Give it two years to see how the negotiation develops. If to our satisfaction, let us take the result. If not (as many of us believe is inevitable), let us then point out that the notice was ultra vires. Hold the Commons vote then (end 2018), by which time the mood in the country will surely have changed so that both law and politics will permit the only way back I can conceive. Europe won’t be happy: but since Article 50 will be deemed not to have been triggered they will have no say in the matter.

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