Looming Disaster ?

The US Elections

trump3Overnight (UK Time) we saw  the last Presidential Debate of this cycle – in Las Vegas.   It took place at 2 am BST.   As fully anticipated in the US media, Donald Trump did not perform well.

Just think how embarrassing it would be to have Trump flying into any foreign capital posturing as the leader of the free world,  or how dangerous it would be to let such a loon have control of the US nuclear deterrent.

Thankfully, Hilary Clinton is still ahead in the polling and last night should improve her position and perhaps provide the impetus for improvements in the Senate and House races.

This analysis from Nate Silver, one of the most reliable sources on the significance of US polling, is worth mentioning:  “Clinton Probably Finished Off Trump Last Night“.  Silver gives Clinton an 84.4% chance of becoming President and says there is a 71.6% chance of the Democrats regaining control of the Senate.

The Real Clear Politics  (“RCP”) site, which is rather more in favour of the Republicans,  puts Clinton at 333 electoral votes and Trump at 204 – 270 votes are required to win.

RCP also predicts that the Democrats are likely to retake control of the Senate (which is important as regards confirmation of officials and judges), but does not yet suggest that the Democrats will have a majority in the House.

So it is looking as though a looming disaster for the USA has been averted.

Trump is now alleging that the election process itself will be rigged against him.   Since the polling is largely controlled at state level, the Trump allegations are not exactly complimentary to the many Republican officials responsible for the conduct of elections in “red” (i.e Republican-controlled) states. See this report from Business Insider: “Donald Trump claims the election will be ‘rigged’ — and critics have called that preposterous and dangerous”.

See also this on the US Politico site: “Republicans despondent that Trump threw away final debate“.    Apparently Trump is planning a post election career as a media mogul – see this in the Huffington Post: “Donald Trump May Launch TV Venture After Election” and this assessment by Paul Brandon on USA Today: “Trump is a vanity project run amok: Column”.

The worrying thought is that Trump’s TV project may be an endeavour to instigate paranoid “nativism” world-wide with Trump supporters in the USA,   UKIP and other Brexit supporters in Britain,  Front National supporters in France and  supporters of other similar parties elsewhere across Europe.

The Article 50 Judicial Review

The Guardian had this: “Parliament ‘very likely’ to be asked to agree Brexit deal”, the Telegraph had this: “Parliament will get a vote on Brexit treaty, Theresa May confirms”. The Independent reported: “Brexit: MPs ‘very likely’ to be given parliamentary vote on EU withdrawal deal, government lawyer says” and the Financial Times had this: “Brexit deal ‘likely’ to involve parliament – UK government lawyer“.

The “government lawyer” in the court proceedings in question was James Eadie QC of Blackstone Chambers who is the real leader of the Government’s defence team in the judicial review proceedings before the Divisional Court, not the “lawyer in the government“, i.e. The Rt Hon, Jeremy Wright QC MP, who was appointed by David Cameron as  HM Attorney-General. – to the surprise of  many in the legal profession, see: “Just who is Jeremy Wright? Lawyers have never heard of new attorney general“.

Then the Daily Mail had this: “High Court judge is left ‘baffled’ by Government lawyer as he defends Theresa May’s right to start Brexit talks without a Commons vote“.  The particular “government lawyer” was, this time, Jason Coppel QC.   But the issue before the Court was not about starting talks.  Ministers can talk as much as they want to  -the issue was  whether an Article 50 notice could be given to the EU  without the authority of Parliament.

It may be helpful for readers to know that the shorthand writers’ record of the entire proceedings before the Divisional Court are, exceptionally, published in full on the Courts and Tribunals web site:  “Santos and M -v- Secretary of State for Exiting The European Union: transcripts”.

So it is possible to read the full text of the exchanges between Mr Coppel QC and the Court on the 18th October.  Mr Coppel was doing his best on behalf of the defendant Secretary of State.  But the tension between the use of prerogative powers by Ministers of the Crown and the role of Parliament is a knotty one which has been troubling the Courts since the famous Case of Proclamations in 1610.

On reading the transcripts, the case for the defendant Secretary of State seems to have been presented about as well as it could be.  Opinions are divided as to which way the decision will go – one has the hope that the Courts will come down in favour of Parliamentary control of the Brexit process – but this is a difficult case to predict.

One of the issues the Divisional Court and later the Supreme Court may have to consider is whether a an Article 50 Notice can be revoked once given.  Nobody knows for sure and, if it were necessary to decide the point,  it would probably require a reference to the European Court of Justice.   This Financial Times article by the FT’s legal commentator explains why the question might be important: “Can an Article 50 notification be revoked?”  In an earlier article, “Brexit and the challenges of reality“, Mr Green recounts how Article 50 came into being as “a sop to Eurosceptic media” and that “Article 50 was never intended to be a practical provision. It was there just for decoration.” 

There was also this in the Financial Times: “Brexit Briefing: The surprise surge in sterling – The excitement over a lawyer’s comments on Article 50 is overdone“.  This report has probably the best account of the way the proceedings went – possibly because the FT  has the benefit of a legal commentator who understands the issues.  This passage of the report is noteworthy:-

The government claims it can use so-called royal prerogative powers — the residue of powers once held by British monarchs. But the case appears finely balanced, with several legal experts suggesting the government had underestimated the strength of the case against it.

Listening intently to the submissions, the three senior judges led by Lord Justice Thomas, the Lord Chief Justice, frequently interrupted the barristers with questions or pressed them on legal points but have given no indication of which way the court will rule.

Lord Justice Thomas occasionally confessed that he was “baffled” by elements of the government’s argument“.

When a Judge says to counsel that he is “baffled” it usually means that the Judge is not buying the argument being advanced.

Hard -v- Soft Brexiteers

Allister Heath, the Deputy Editor of the Torygraph Telegraph writes: “Why it’s time for a new campaign for Brexit“.

It is always sad to see a chap writing such tripe.  Particularly when the author has been as expensively educated as this one.  There is no need for a new “Brexit” campaign.  The  decision has been taken.  The UK will now seek to leave the EU.  That is the policy of the Government.  The issues now are the terms on which the process will go forward and whether Parliament will have effective control of the process.

By way of contrast, writing in the Guardian, Polly Toynbee opines: “The public are already turning against Brexit. When will Theresa May listen?

There is only one way out of this. The British people may decide the cost is too high. Before anything has happened yet, they can see how the prospect of hard Brexit is already causing serious damage. The pound plunging by 17% is a national disaster, predicted to fall further: only those who supported Brexit whistle in the dark, pretending it’s good news. It will help a few manufacturers and Bond Street retailers of luxury goods, but our precarious over-dependence on imports means steep price rises ahead in petrol and food are rather more important than cheaper Burberry handbags. We may decry an unbalanced reliance on the finance industry, but wrecking it before building up anything else will leave a chasm in treasury revenues, more cuts, more job losses.

People aren’t stupid. They may want less immigration – but not at any cost. The stupidity was a referendum campaign that boiled everything down to that one issue. But people don’t think just one thing, they have many views and priorities: when the facts change, they tend to change their minds.”

The Guardian also has this: “Philip Hammond attempts to ease concerns over hard Brexit” and even David Davis seems to be recognising some belated understanding of the possible consequences – see this in the Financial Times: “David Davis warns EU partners not to weaken City of London – Brexit minister says move would backfire and destabilise markets“.

 Après May le déluge ?  

may-at-cpc2The Prime Minister is in Brussels this evening for her first European Council as Prime Minister.  It will be interesting to see how the “getting to know you” process develops.

Early reports by the BBC give the atmosphere:  “Theresa May: We’ll still work closely with EU after Brexit” – “May’s slightly awkward EU debut” – “Europe’s phoney war“.

It is hard to exaggerate the scale of the disaster the British people have inflicted upon themselves with their decision to leave the European Union, taken in the referendum last June.

He then goes on to set out in some considerable detail that decades of mismanagement of the economy and industrial strategy over many years (including the Thatcher years) have now made the UK economy overwhelmingly dependent on foreign enterprise and foreign capital.

As Head points out: “Unless May soon changes course, Britain and its economy could face a decade or more of debilitating uncertainty.

Teresa May is to be congratulated on her wish to have a “one nation” government  but her obsession with Brexit and bringing an end to EU immigration is exceedingly dangerous.






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