Brexit Update.

On June 23rd (23/6/16) British voters decided to exit the European Union (EU). The so-called "Brexit."

This was possibly the most significant event to affect the continent since the fall of the Berlin wall in 1989. Or possibly the construction of the Berlin wall in 1961. Or possibly even the creation of the European Coal and Steel Community in 1945.

However since then almost absolutely nothing has happened.

The only significant development was a ruling on November 3rd (3/11/16) by the British High Court that the British Government cannot use what is known as "Royal Prerogative" to start Brexit negotiations by invoking what is known as "Article 50."

Royal Prerogative is one of those things that really highlights just how far away Britain actually is from being the type of modern democracy that it likes to pretend that it is.

Britain's core constitutional principle is that the Monarch - currently Queen Elizabeth II - is some sort of supernatural being anointed by God to rule over us all. As such we couldn't possibly place any restriction on the Monarch's power - their prerogative. After all it is God's will.

The problem is that over the centuries numerous people have claimed to be this supernatural being anointed by God - often at the same time. With God's support normally being demonstrated through victory in battle these disputes over who God loves the most have frequently turned bloody.

Sadly I am not joking when I say that the TV show "Game of Thrones" is loosely based on British political history. Specifically a period between 1135 and 1154 known as; "The Anarchy." If you believe the legend of St George of Lydda there were even dragons.

As a result over the years numerous restrictions have been placed on the Monarch's power as a compromise to avoid yet another war. Probably the most famous example of this is the Magna Carta of 1215.

The Magna Carta was actually a ruse introduced by King John to prevent the Catholic Pope from publicly denouncing King John's claim to be anointed by God and therefore his legitimacy to call himself King. For some reason at the time the Catholic Pope was considered another supernatural being anointed by God but one that outranked the English/British Monarch.

Pretty much as soon as the Pope had visited England to reaffirm his anointment by God King John simply tore up the Magna Carta.

The current situation is that the Monarch defers the day-to-day running of the country to the democratically elected government which sits in the House of Commons - the lower House of Parliament. This allows the Prime Minister - or Queen's First Minister - to exert Royal Prerogative on the Monarch's behalf. 

As such Royal Prerogative currently functions as something similar to an Executive Order in the US. However there are a number of crucial differences. For example an Executive Order cannot be used to sign the US up to or withdraw from an international treaty. These days Royal Prerogative is pretty much only used to sign the UK up to or withdraw from international treaties.

However this primacy of the government over the Monarch is actually relatively new only coming into being following the First World War in the 1920's as a way to avoid a Russian-style revolution.

Also it is an accepted norm of behaviour rather than a written rule. Therefore the Queen could simply wake up one morning and decide that she is going to take over the day-to-day running of the country. Some would argue that is exactly what she did both in 1974 and again in 2010.

Britain's big constitutional shift of course came in the 1530's when King Henry VIII decided he wanted to divorce his wife Catherine of Aragon. The Catholic Pope denied King Henry VIII this divorce.

So King Henry VIII responded by declaring that the Pope was not a supernatural being anointed by God and certainly not one that outranked King Henry VIII. Instead King Henry VIII declared himself to be the head of the Protestant Church of England and that Church to be the only true Christian Church. He then promptly granted himself a divorce.

This split between the Catholic Church and the newly invented Protestant Church of England plunged Britain into a period of political turmoil that arguably lasted until the signing of the Good Friday Agreement in Northern Ireland in 1998.

For example just two days after the High Court ruling the UK on November 5th (5/11/16) celebrated the 411th anniversary of the Gunpowder Plot. This was a failed attempt by Catholics - most notably Guy Fawkes - to blow up both houses of Parliament in order to kill the Protestant King James VI of Scotland and I of England.

More specifically Bonfire Night as it's known celebrates the burning alive of Catholics as punishment for the failed assassination attempt. I may though be going off on a bit of a tangent there.

Most notably though the Catholic, Protestant split triggered not one but three Civil Wars.

The first of these - 1642 to 1646 - saw the Protestant King Charles I overthrown by a Protestant almost Emperor when he planned to marry a Catholic. The second - 1648 to 1649 - was an unsuccessful attempt by supporters of King Charles I to overthrow the Emperor - Oliver Cromwell - and restore him as King. The third - 1649 to 1651 - saw King Charles I son King Charles II successfully overthrow Cromwell eventually restoring Britain as a Catholic nation.

However the Protestants religious fervour was not spent so in 1688 they staged what went on to become known as "The Glorious Revolution." This really began with the reading of the "Declaration of Rights." With the Protestants eventually winning what I would term a fourth Civil War along with the Act of Settlement of 1701 the Declaration of Rights became the Bill of Rights of 1689.

Apart from granting Protestants the right to bear arms the Bill of Rights amongst other things declares that;

"That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall."

Putting aside the old English spelling from the context of a document that bills itself as a declaration of Rights & Liberties this can be taken to mean that Royal Prerogative cannot - without the consent of Parliament - be used to take away the rights of citizens that have been granted by Parliament.

One of the main things that has driven British voters to call for a Brexit is the role that the EU plays in writing laws that apply to British citizens.

As a result of this the British Parliament hasn't actually passed any laws of its own on a vast array of tedious but important subjects such as the definition of a foodstuff for the purpose of international trade in the best part of 45 years. Instead they've simply adopted the EU law as UK law.

This is the reason why the so-called "Progressive" parties such as Labour, the Liberal Democrats and in particular the Scottish National Party (SNP) are so opposed to Brexit. It means that they'll have to start earning their money by representing their constituents rather than relying on, say, the Germans, the French or the Dutch to do their work for them.

Under British law the what is termed "Statutory Instrument" that makes EU law into UK law is the European Communities Act of 1972. This is where things really start getting complicated.

The Article 50 that everybody keeps referring to is Article 50 of the Lisbon Treaty of 2007. This is the most recent in a series of roughly a dozen treaties dating back to 1945 through which the EU exists. However demonstrating that it has always had something of a troubled relationship with the EU the UK does not formally recognise a single one of these treaties. Instead it only recognises the 1972 European Communities Act.

Therefore I - like I think most reasonable people - would argue that the triggering of Article 50 in no way impacts the 1972 Act. However due to the apparent need to believe in dragons and fairies the British Establishment has a long history of refusing to employ reasonable people. So no matter how wrong it is an established point of law that triggering Article 50 would also repeal the 1972 Act.

That would remove a number of rights granted to citizens by Parliament and therefore would require the consent of Parliament under the 1689 Bill of Rights. Hence the November 3rd (3/11/16) ruling.

However it is worth pointing out that the 1972 Act does allow for Royal Prerogative to be used to make any law or right to be converted into a UK law that would function independently of the EU. Therefore at the same time that it triggers Article 50 the government could also transfer all the EU legislation into UK independent legislation. The UK Parliament could then work through each law one-by-one on its own time.

The November 3rd (3/11/16) ruling in no way blocks Brexit. It merely states - wrongly in my opinion - that the government must seek the consent of Parliament before triggering Article 50. The government can go about this in two ways;

The first is to introduce a simple resolution stating that Parliaments consents to the triggering of Article 50. This resolution will be subject to a simple up or down vote.

Under the Parliamentary system the reason the government gets to call itself the government is because it has enough supporters within the House of Commons - the lower house - to win any vote. This is known as a working majority. Therefore all the other political parties could vote against the resolution and it would still pass.

Things get a little more complicated in the House of Lords - the upper house - where the current government does not have a working majority.

However the unelected Lords have long since lost their right to veto the will of the Commons. Instead they can only refer matters back to the Commons for further consideration. However if the Lords reject a Commons proposal for - I think - a third time following the fourth Commons vote it bypasses the Lords and goes straight to the Monarch for signing into law.

The second thing the government could do is introduce a traditional Bill/Act.

However this would be a much more time consuming process because it would have to go through committees and numerous readings and votes. Those MP's who are ideologically opposed to Brexit could delay it almost indefinitely by demanding that completely irrelevant amendments are considered sending the whole thing back to the start of the process.

I think this type of Parliamentary vandalism would be very destructive and significantly increase the chances of the UK being unable to negotiate a successful Brexit deal.

Even before questions over its authority to do so were raised the British government had planned to defer the triggering of Article 50 until the spring of 2017.

That's because regardless of when the negotiation period ends it won't be until January 1st of the following year that any changes come into effect. So based on a two year negotiation period starting in March 2017 it will be January 1st 2020 (1/1/20) before Brexit actually happens.

Ideally you want to leave the longest period possible between any changes being agreed and those changes coming into effect to allow people to adjust to the changes. For example the Lisbon Treaty itself was signed in 2007 but didn't come into effect until 2010. Likewise the so-called Paris Agreement on Climate Change was agreed in 2015 but won't come into effect until 2020.

Even a delay until the summer of 2017 would significantly reduce the period available for adjustment to the point Britain may have to consider deferring the trigger of Article 50 until the spring of 2018 and by extension Brexit until at least 2021.

This is going to create a long period of uncertainty and if there is one that business and financial markets hate it is uncertainty.

In the months since the Brexit vote the value of the UK Pound has plunged to almost parity with the US Dollar. This is not a result of Brexit because Brexit has not happened. Instead it is the result of the uncertainty about when Brexit is going to happen.

If Parliament forces the government to wait until the spring of 2018 to trigger Article 50 the value of the UK Pound is going to take an absolute battering.

Also if Parliament forces the government into a full Commons debate over the Brexit strategy that is going to put Britain's entire negotiation strategy in full public view. Particularly in the view of the very people Britain will be trying to negotiate with. That is basically page 1 of how to lose a negotiation.

In fact with the November 3rd (3/11/16) case being brought by Gina Miller - founder of the investment firm SCM Private - I suspect that along with the Pound's plunge the markets are trying to pressure the government to blow open the Brexit negotiations. So Ms Miller's investors can ensure the outcome that is best for them rather than for the UK or even the EU.

The UK government has of course announced its intention to appeal the High Court's ruling at the Law Lords. As part of an attempt to convince outsiders that the UK is a modern democracy rather than a bit of a nut house the Law Lords re-branded themselves "The Supreme Court" in 2009. However unlike an actual Supreme Court it remains part of the legislative & executive branches of government rather than separate from them.

However if I was framing the government's appeal I would focus heavily on the fact that Parliament has already given its consent for Article 50 to be triggered. Specifically they consented for the issue to be decided by the British electorate by passing the European Union Referendum Act of 2015. There is certainly nothing in the wording of that act to support the claim that the referendum is merely advisory.

In fact the High Court's November 3rd (3/11/16) ruling seems so detached from reality I would even go so far as to suggest that it owed more to the theatrics of the US Presidential election and the November 7th to November 18th (7-18/11/16) COP22 Summit then anything to do with Brexit.

The High Court ruling of course set in motion a chorus of disapproval amongst the British press. With the help of Prince Henry/Harry's starpower this allowed US voters to discuss what a clear and present danger to democracy and the rule of law Hillary Clinton represented. After all if someone who believes themselves to be a supernatural being anointed by God to rule thinks you're being a bit arrogant chances are you're being a bit arrogant.

With Donald Trump defeating Hillary Clinton in the November 8th (8/11/16) election talk at COP22 turned to whether the US would withdraw from the so-called Paris Agreement.

Some are of the opinion that in order to do this the US would have to trigger Article 28 which rather like the triggering of Article 50 of the Lisbon Treaty would start of a multi-year withdrawal process.

However the more literate would point out that like all the other articles Article 28 has no legal force. Specifically because President Obama demanded they have no legal force so he could use an Executive Order to sign the US up to the agreement. 

In order to achieve that Obama turned up to negotiations in October 2015 like some sort of drunk toddler smashing everything to bits. However in the five to six years prior to that everybody else was working towards a Statutory Instrument similar to a Treaty or a Protocol to replace the outgoing Kyoto Protocol.

By "Everybody Else" I of course mean 192 nations representing some 7 billion people. So not only did they each have their own objectives from the negotiations they also have slightly different understandings of what a Statutory Instrument actually is. Therefore discussions about legal systems and constitutional precedents are constant at Climate Change negotiations.

Also the 1688 Bill of Rights and the 1701 Act of Settlement are the only two pieces of legislation that are common throughout all members of the UK Commonwealth.

As such the whole thing does seem to have provided a convenient codebase for discussions between big hitters such as Canada, India and Australia that other nations such as the US and China would struggle to understand.

17:25 on 21/11/16 (UK date).