[What follows is a longer version of a piece published for The Times Brief earlier this morning.]
A lawyer’s mind is a curious thing. It is barely interested, often, in whether a choice is right or wrong. It acknowledges that in a complex world a simple question can have different answers. But it holds furiously to the idea that how we arrive at the answer is important.
Whose decision is this? Is it motivated by proper considerations? From whence derives the authority to make it? Post the right bricks through the right slots and you might, just might, impose a semblance of order on an unruly world.
Understand this and you will understand that which has so far escaped those who look, from the tumble of politics, askance at the ‘antics’ of lawyers.
Including my antics. Because it was only six days after the Referendum that I launched the crowdfunding exercise that concluded earlier this week with success in the Supreme Court. And which will see, today, further proceedings also crowdfunded issued in the High Court in Dublin.
The Supreme Court case was about who writes the Article 50 notification letter – Parliament or the Executive. No one should doubt that the letter will be sent. Whatever else the result of the Referendum means it must mean that we commence the process of leaving the EU. But she who holds the pen controls the process. And, at least to a lawyer, it is plain that Parliament not the Government must control that process.
There was no small print on the ballot paper. The decisions on the form Brexit takes are momentous ones. They must have the legitimacy that comes only from our supreme national Parliament. And not a Government appointed by a narrow majority of that Parliament. A narrow majority which had regard to considerations including maintaining the unity of the Conservative Party. These are considerations of process.
And what of the Dublin case? What does it do? It, too, is about process. Strip away the complexity and it looks to find an answer to a simple question: do we have the option of changing our minds about the wisdom of Brexit?
This is a question we should all want an answer to. All we know about the future is that it feels more uncertain than in living memory. Is NATO obsolete? Can our NHS survive? What humanitarian responsibilities come with our foreign policy escapades in the Middle East? What will happen to living standards as the details of what Brexit means emerge?
It must be in the national interest, in this uncertain world, that we have the option of changing our mind. Whether we actually change it will depend upon events. But what a tragedy it would be if we came to think our national interest lay in remaining but found that course barred to us. The preponderance of legal opinion is that we could decide after all to remain. But the issue is important – and our Parliament must know the answer, not merely guess at it.
So the question is about how Article 50 works. Having notified, can you withdraw your notification? Whatever the answer is for the UK will also apply to the other 27 member states. And this means that only a court to which we all subscribe can give an answer. Here, the European Court. We access the European Court via a national court. And it can’t be our courts – because the complaints includes that the other 27 have breached the Treaty by excluding us from Council meetings before we’ve notified. And that complaint can only be made in their courts. But whichever national court we choose it ends up in the same European Court.
So my concerns are with process. Yes, I voted to Remain. Yes, if there was another vote tomorrow I would vote the same way. But, no, the Dublin case is not about blocking Brexit. It recognises the result of the Referendum. But it also recognises that people sometimes change their minds.Follow @jolyonmaugham