If The Lords Save Us From Article 50 Oblivion They Deserve A 100 Year Stay Of Execution!

16/08/2016 11:01 | Updated 16 August 2016

Forget the polarised Brexit arguments for a moment and consider the fact that Article 50 of the Lisbon Treaty was designed by an Italian, nicknamed 'Doctor Subtle', by his countrymen, and who is on record as saying that it was never supposed to used. The problem is Giuliano Amato never bargained on the most unsubtle of democratic instruments colliding with a 'perfect political storm' to bring the UK economy to the brink financial disaster.

David Cameron gambled that the 'inevitable' coalition would save him from having to deliver on his promise of a referendum; Boris decided to campaign to Leave the EU, perhaps reasoning that as an heroic loser of the right he could only enhance his chances of becoming PM, and the Ed-Jez batten pass, outdid even the UK men's 4x100m relay squad of recent years for incompetence! Should any one of these events not have come to pass we almost certainly would not be in such an unconscionable mess.

It is my belief that common sense will eventually carry the day and that the great British public will, when faced with the stark reality of what they have voted for, disown Michael Gove's disingenuous views on expert opinion, and change its mind.

I do however think that getting out of this mess will be no easy task, and that the House of Lords may turn out to be the unexpected champion for democracy, in this uncertain constitutional battle.

The problem is that any difficult and sensitive escape manoeuvre has to happen before the UK triggers Article 50, because, as I've already said, Doc Subtle cunningly fashioned an economic suicide pact to look like an escape capsule. To placate the right of the UK political landscape he put in an (Article 50) exit clause to the Lisbon Treaty, but then designed the leaving process to resemble the final scene of Thelma and Louise. Once article 50 is triggered, in all its unknowable, complexity there is no turning back - you must keep driving in that direction!

So any return to sanity has to happen before Article 50 is triggered, irrespective of the outcome of the constitutional challenge to the government's assertion that the PM can set the UK's departure from the EU in motion, whenever she wishes. I am backing this challenge by my lawyers, Mishcon de Reya, because I think that such a momentous decision should be endorsed by the UK parliament, as the highest power in the land.

The challenge will also buy some crucial time - and by Theresa May's own estimation - there will be no triggering of Article 50 in 2016.

Writing in The Guardian, Patience Wheatcroft (Baroness Wheatcroft of Blackheath), says that the implications of a Brexit go far beyond economics and will impact hugely on future generations, and for this reason the PM exercising the royal prerogative is too big a step for one individual to take.

Somewhat paradoxically using the royal prerogative also conflicts with one of the key arguments put forward by the Brexiteers, that of sovereignty. And as Baroness Wheatcroft says: "The sovereignty of parliament must prevail. And it is indeed 'central to our democracy' and needs to be nurtured.
Personally I believe that Theresa May has no intention of triggering Article 50 herself, and as a 'Remainer', albeit a low key one, every credible excuse to delay, to give sanity a chance to return, is probably welcome.

The PM has become very keen on the mantra 'Brexit means Brexit', which is about as enlightening as chanting 'bread means bread', which comes in a myriad of forms, and is shunned by many for health reasons, even though at first it looks and smells great! And so, it is my hope that as some of the much maligned expert opinion is proved credible and people start to feel pain in their pockets, the will of the people, as Tony Blair said the other day, may well change.

And if it is decided that invoking Article 50 must be done by statute, as I believe it inevitably will, the battle will next year move to parliament, where MPs must decide the country's fate. This will put a huge amount of pressure on the elected members to gauge the will on the people, and how it may have changed in light of actual facts, and the passing of some 10-12 months since the 'hot bread' smell of Boris and Gove's rhetoric wafted away.

And this is where we should be thankful for our inability to 'reform' the unelected reviewing chamber that is the House of Lords. I think that Patience Wheatcroft is 100% correct when she says that while it is not the Lords' place to 'thwart' the will of the people it is its job to ask the government to reconsider if it believes a grave mistake is about to be made.

And if as the Baroness suggests is possible, the Commons is 'cowed' by the referendum's narrow majority it would be a huge service to the nation if the Lords were to fight, tooth and nail, to stall the bill. To force the government to invoke the Parliament Act for a manifesto pledge is a huge break with parliamentary convention, but with the stakes so high, to not fight to the last would be a crime.

Many will look upon such behaviour by the Lords as a reason to hasten their abolition, and have them replaced by an elected second chamber, but I would argue the opposite, that if they save us from making this huge mistake we should grant them a stay of execution for at least 100 years.