Marina Wheeler QC (Photo by Dan Kitwood/Getty Images)
Artillery Row

The unsung hero of Brexit?

If Boris deserves the credit for getting Brexit done, then Marina Wheeler QC deserves some of the credit for getting Boris to back Brexit in the first place

Boris Johnson has rightly won the praise of commentators for getting Brexit done, as he promised he would.

Charles Moore wrote last weekend that Boris “has proved statecrafty” and has “got us out, enormously assisted by enemies in his own party and outside too angry to perceive his skills. We should acknowledge that, in our strange post-modern politics, no one else could have done it.”

In the abbreviated Commons debate on the European Union (Future Relationship) Act, Sir Bill Cash lauded the Prime Minister for having “saved our democracy” and compared him to luminaries of the past: “Like Alexander the Great, Boris has cut the Gordian Knot. Churchill and Margaret Thatcher would have been deeply proud of his achievements.”

But let’s remember how Boris got to where he had to be in order to fulfil his destiny.

Last Sunday, The Sunday Times political editor Tim Shipman, in his review of the concluding Brexit negotiations, looked back to a moment in 2015 when Boris gave Shipman an interview in which he said he wanted a “sovereignty clause” to be enshrined in British law.

Now, the concept of a Sovereignty Bill had been knocking around for several years. Indeed, it had been a cherished policy of Sir Bill Cash and the Eurosceptics, who had intended to push for it if the Tories had won a majority in 2010.

As Shipman wrote, “Cameron could not make the concept [of a Sovereignty Bill] work and Johnson’s then wife, the QC Marina Wheeler, convinced him leaving was the only way to make laws British.”

For Marina, it was clear what needed to be done

Throughout the Brexit interregnum – the period between the 2016 referendum and the election of Johnson as Leader of the Conservative Party – we Brexiteers were constantly challenged by Remoaners about how our man Johnson was unprincipled and only interested in being prime minister. They invariably pointed to his admission that he had written two articles for The Daily Telegraph on the eve of declaring his position about Brexit, one in favour and one against. For all that he claimed to have done this as an exercise in working through the pros and cons in his mind, the Remoaners refused to believe that Boris was anything other than an unashamed promoter of his self-interest with no real convictions. Boris only believes in Boris was their mantra.

Of course Boris coming out for Brexit was a gamble, as are most key decisions a politician takes. Of course it was a power grab, for it is only by gaining power that a politician can implement his or her aims. Nonetheless, I believed then – and continue to believe – that Boris was completely sincere in wanting to break free of the European Union yoke. I also believe that his then wife Marina Wheeler played a crucial role in bringing him to this point.

In an article for The Spectator called “A court of injustice” (13 February 2016), Marina laid out her case against the European Court of Justice and its insidious, creeping expansion of its jurisdiction.

At the root of the problem was the Charter of Fundamental Rights, proclaimed in 2000, which created an additional 50 rights on top of those already contained in the European Convention of Human Rights. When the 2007 Lisbon Treaty enshrined the Charter in law, Tony Blair’s government obtained a UK exemption called Protocol 30. But despite Blair’s assurances, and those of Justice Minister Ken Clarke in the Conservative-led Coalition, cases being brought in the UK courts were referred to the ECJ, which ruled that the Charter of Fundamental Rights applied in the UK regardless of Protocol 30.

“Aside from eroding national sovereignty (which it does),” Marina wrote, “the current situation also undermines legal certainty — which, in turn, undermines good governance. Proper reform needs to address the EU legal order, in particular the jurisdictional muscle-flexing of the Court of Justice in Luxembourg.”

Marina is a human rights lawyer and she wrote this article one month after taking silk. Since almost the entire sector of the profession dealing with human rights was genuflecting towards the ECJ, this was a brave thing to do. “My current view,” she concluded, “is that a court which has been known in cases of vital importance to ignore its own rulings (viz, the infamous Digital Rights Ireland case), and give no reasoned explanation for doing so, is acting capriciously rather than judiciously. It does not inspire much faith.”

Marina persuaded Boris that the European Court of Justice had to be stopped in its tracks

A year later, Marina wrote another article for The Spectator, which was an update on her first article. She began “A court’s contempt” (23 September 2017) with the observation that “the issue of sovereignty has mysteriously disappeared from the debate over Brexit”. But although issues of national security were supposed to be outside the ECJ’s remit, it was flexing its muscles in favour of privacy campaigners objecting to the bulk collection of communications data for national security purposes by Her Majesty’s Government. Not only this, but the ECJ was an embarrassment in jurisprudential terms since, “in a series of recent, poorly reasoned decisions … it has also failed to refer to its own previous judgments which recognised public security as being outside its remit”.

For Marina, it was clear what needed to be done. If reclaiming sovereignty was to mean anything, it meant the extirpation of the ECJ from all workings of the British state. “Reclaiming sovereignty allows the nation to decide for itself how to balance the needs of security with the requirements of privacy and keep its citizens (and visitors) safe. Co-operating with others to improve security plainly makes sense. Giving up the right to decide does not.”

If you believe that there would have been no Brexit without Boris, then you might also suppose that there would have been no Brexit without Marina persuading Boris that the European Court of Justice had to be stopped in its tracks. From the outset of the recent negotiations conducted by Lord Frost, one matter was non-negotiable, namely that the ECJ should continue to have any role in UK affairs post-Brexit.

Another unsung hero of Brexit is Michael White, The Guardian’s veteran political reporter. He won’t thank me for drawing attention to this, since he proved to be such an assiduous Remoaner in the pages of The New Europeannewspaper, but he was the first person to introduce the dreaded word Brexit – dread as far as the liberal-left are concerned – into British public discourse.

In yet another article from The Spectator in September 2016, former editor of The Guardian Ian Katz mistakenly attributed the first usage of the word Brexit to a blog by pro-EU campaigner Peter Wilding in May 2012. However, the first usage in print that I have been able to discover preceded that by five months. It was in a news report in The Guardian by Michael White, dated 1 January 2012, in which he stated that “Brussels has a new word: ‘Brexit’…”

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