A point often overlooked over the course of Brexit since the Referendum of June 2016, is that in the UK Constitutional system, it is still the Crown that upon the advice of ministers and by merits of its prerogative powers, is the exclusive power that enters into treaties, with limited involvement of Parliament in negotiating and concluding such, although Parliament does have near-absolute control in the implementation of such treaties, with perhaps the exception of directly applicable European legal provisions that previously became enforceable by private individuals in UK courts. Non-directly applicable European legal provisions were to be given effect by way of the Orders in Council of the Crown, as under s.2 of the European Communities Act 1972.
Sir William Blackstone, one of England’s most eminent jurists, in his 1765 Commentaries on the Laws states:
“With regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves.
What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king’s concurrence is the act only of private men. It is also the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes.”
Blackstone is in effect describing the currently near-ubiquitous global norm of the negotiation and conclusion of treaties and indeed the withdrawal from such treaties to be the exclusive competence of the State, which in the UK is the Crown, as opposed to the Electorate, the Legislature or Judiciary.
In this regard Brexit, in as much as purportedly being some expression of the “will of the people” is fundamentally at odds with the UK Constitutional system; a conflict which necessitated that the outcome of the Referendum of June 2016, was in no way legally binding upon the Government, and Brexit therefore was only substantiated by way of the actions of Parliament, in the aftermath of Miller 1 (Rev 3)  UKSC 5.
In practice although it is cabinet ministers or departments of government acting on behalf of the Crown in “advising” the Crown vis-à-vis its treaty relationships with the World, and although the “critical importance” of the rather unsafe statutory procedure of parliamentary approval for the ratification of treaties as under Part II of the Constitutional Reform and Governance Act 2010 as highlighted in Miller 1 is not disputed, it is still fundamentally the Crown that exclusively maintains the prerogative power to treat internationally, in English Law.
Blackstone in his 1765 Commentaries on the Laws goes on to state that:
“Whatever contracts therefore he (the King) engages in, no other power in the kingdom can legally delay, resist or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution … has here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as advise or conclude any treaty, which will afterwards be judged to derogate from the honour and interest of the nation”.
Elsewhere in the Commentaries Blackstone reiterates this point:
“For, as the king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments and parliamentary impeachments, that no man shall dare to assist the Crown in contradiction to the laws of the land”.
Here, Blackstone is dealing with situations such as in R v Earl of Danby, 2 Show 335 (1685), where the accused “traitorously encroached to himself regal power by treating in matters of peace and war with foreign ministers and ambassadors, and giving instructions to His Majesty’s ambassadors abroad without communicating the same to the Secretaries of State and the rest of His Majesty’s counsel”. Similar later examples can be found in the cases of Rex v. Vaughn (1769) 4 Burr.2495 (K.B.) and Dickson v. Viscount Combermere (1863), 3 F. & F. 527, 548, which upheld the unlawfulness of a Minister corruptly or maliciously advising the Crown to act. The unlawfulness and criminal illegality in these cases, is to cause the Crown, which cannot act in error, to by way of ministerial misadvisement or malicious or corrupt misguidance act illegally or erroneously.
Part II of the Constitutional Reform and Governance Act 2010; an evolution of the “Ponsonby Rule” exists with a view to allow the intentions of the Crown to treat internationally to merely “be known” to Parliament rather than to allow Parliament to prevent the Crown from doing so (although Parliament can now technically do so). The purpose in Part II of the 2010 Act is that the Crown’s government, before internationally obligating the Crown, is apprised of the wider societal consequences of doing so and can prior to ratification negotiate improvements to the obligations it is entering into, as well as take the welfare of all affected stakeholders into account. Presumably Part II of the 2010 Act now applies to all subsequent UK treaties following the repeal of the European Parliamentary Elections Act 2002 and the European Union (Amendment) Act 2008. Part II of the 2010 Act although unsafe in as much as giving Parliament the (albeit remote) ability to prevent the Crown from treating internationally, nevertheless much like the Ponsonby Rule, is fully congruous with the principle that the Crown in internationally obligating itself, should not act illegally or erroneously.
Although overlooked in the Prorogation affair, where in Miller II  UKSC 41, advice given by the Prime Minister Boris Johnson, to the Crown that Parliament should be prorogued in the prelude to the United Kingdom’s departure from the European Union was merely “unlawful” as opposed to any examination for criminal illegality, the question arises as to how such “evil counsellors” and “wicked ministers”, should be dealt with today, where the Crown were to be so misled or where the Crown were compelled by way of such advice to act illegally, as the Internal Markets Bill would do so, had it been forced into law by the Conservative government.
Blackstone variously refers to “parliamentary impeachment” in order to punish “evil counsellors” and “wicked ministers”, for “the mal-administration of … high officers as are in public trust and employment” which he describes as “misprisions… contempts or high misdemeanours”.
Such Positive Misprision is considered obsolete and offences in this context are in all likelihood subsumed into the various s.3 offences of the Treason Felony Act 1848, whereby such would likely be considered “compassing, imagining, inventing or devising (to) in order by force or constraint to compel (the Crown) to change (its) measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom…”. Similarly, although not formally abolished, yet also considered obsolete, Parliamentary Impeachment was a means to prosecute holders of public office, for high treason or other serious crimes where the holder of such office was beyond the reach of the law or which no other authority other than Parliament was able or willing to prosecute. The obsolescence of Parliamentary Impeachment is thought to be the result of Collective Cabinet Responsibility and the availability of Judicial Review to check irrational, unreasonable or illegal Ministerial decision making.
It is notable that the Conservative government have perviously, openly sought to disregard international treaty obligations, as set out in the Withdrawal Agreement and in their ongoing post-Brexit agenda, now seek reform of the UK Treason laws, seek limitations upon the scope of Judicial Review and show very little in the way of concern, for Collective Cabinet Responsibility
In their 2013 work, Mudde and Rovira Kaltwasser define Populism as an expression of the volonté générale; the antagonism between the “pure people” and an overarching corrupt elite, and they extend to such populism, the benefit of what the authors describe as “a thin-centred ideology”.
Post-neoliberal populisms however, have evolved into something quite different. Above all, neoliberalism is firstly fully internalised by these populisms as a sacrosanct and inviolable condition-precedent to all things thereafter. The need for any substance or probativeness to the populisms’ purported ideology, is dispensed with altogether and any kind of nonsense will suffice as long as enough believers can be mobilised, thus allowing the scope of this ideology to grow and morph organically, and in accordance with the extent of its mob. The “corrupt elite” rather than being any distinct group, are individuated and singularised to include absolutely any kind of opposition or the authors of any kind of critique.
A further and systemising feature of these post-neoliberal populisms, is their characteristic of being directly or indirectly in opposition to some Executive function of the State.
So, for instance, as opposed to the arbitrary fiat of the elected and their constituency (the “will of the people”), it is regular law and evidence-based regulation that determines who has the suitable and necessary expertise to call themselves a doctor, who in turn can identify a diabetic and then further determine whether that diabetic should receive insulin or any other treatment that the said doctor, may consider more appropriate. Opposition to such regular law and evidence-based regulation in this regard can be seen prominently in the post-neoliberal populist aspirations and theories of anti-abortionists, anti-vaxxers and more recently Covid-19 deniers and anti-maskers, all of whom imagine that the “will of the people” can overwhelm the Executive function of the State, in the regulation and provision of medicine. This becomes particularly problematic as these populists believe and quite openly represent; that it is “they” that should be the final-arbiters in determining the regulation and provision of medicine for all of society, rather than for solely themselves. Setting science and evidence aside, all they need, is simply enough believers in their absurdities, to realise their demands.
The post-neoliberal populist Brexit, very similarly is the purported claim that a small section of the electorate can somehow usurp the normally solely Executive competence of the Crown, to enter into and exit treaties. This Brexit also purportedly redefines democracy (at least in the minds of its proponents) to mean that now that same small section of the electorate, can author permanent political settlements, for all of society. This of course is all nonsense, as Brexit, was actually solely and exclusively authored by the Conservative Party, in as much as its control of the Executive through the life of the various Parliaments from 2016 onwards and has nothing to do with the electorate. Sustaining this fiction is currently highly politically expedient and thus persists and thrives.
Brexit for having been realised to whatever extent possible, with the EU–UK Trade and Cooperation Agreement as of writing, has set a dangerous precedent and has opened the door to the possibility of the substantiation of further attempts to dilute the scope of State competence and has for its demonstrable achievability, galvanised and emboldened further (equally unhinged) significant and viable threats to the orderly operation of society.
A new and emergent post-neoliberal populism gaining very significant (and particularly social-media) traction in the UK in the wake of Brexit, is the “Common Law Movement”, which is loosely based on the US Sovereign Citizen Movement and the earlier Anglo-spheric “Freeman of the Land” movements, the latter of which seem to be becoming subsumed into the internet-based Common Law Movement.
The central premise of this movement is the belief that Clause 61 of the 1215 version of Magna Carta (Suffix A), somehow renders its followers, beyond the scope of the regular English law.
This Clause 61 itself was drafted in the run-up to the First Barons’ War (1215–1217) as an attempt by various rebellious landowners (the Barons) to create a means to compel King John of England to uphold the Magna Carta. This was to be achieved through the formation of an oversight committee of twenty-five barons, which whereupon the failure of the King to comply with the Charter, would gain licence to seize King John’s castles and lands in distraint until satisfaction or resolution was achieved. To realise this enforcement mechanism and particularly the seizure of castles and lands, Clause 61 set out that “any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us (King John) to the utmost of his power.”
Clause 61 didn’t last very long and almost immediately resulted in a two-year war between the King and the Barons, who were supported by the French. The 1215 version of Magna Carta was nullified by Pope Innocent III and all subsequent versions deliberately excluded any terms (including Clause 61) relating to destraint of the King
Although Clause 61 applied exclusively to the 25 Barons and specifically existed for the purposes of exercising destraint against particularly King John alongside being subsequently nullified, the Common Law Movement take this Clause 61 to mean that they, by way of an oath to the twenty-five barons, are no longer subject to the regular laws of England and Wales and in particular (of-late) laws relating to Covid-19, for having some general right to assail the Crown.
The Movement assert that all laws affecting or irking them individually are “high treason” for the Crown having been usurped and having no legal authority and that its government is therefore equally invalid. They seek to rely on a methodology of legal cargo-cultism such as wearing self-published “notices” on lanyards to show to parking wardens warning them that issuing a parking penalty, will result in trial by a “jury of the people” and “life imprisonment” and that the parking warden claiming they were just doing their duty, won’t be a satisfactory defence as was the case in the Nuremberg trials. Clause 61, in this imagined parallel jurisdiction is the “only true law” and everything thereafter is merely contractual. Any unwanted interaction between the State and the members of the Movement can supposedly be nullified by writing the words “no contract” on documentation or stating such to the likes of police and bailiffs.
This may seem like laughable nonsense and upon cursory examination looks mostly like a playbook of pseudo-law for “karens” who don’t want to wear masks or use hand-sanitiser but the Common Law Movement boasts some 60 to 100k followers and supporters across multiple social media forums, have various well-organised websites, crowdfunding initiatives and campaign pages as well as a developed outreach, recruitment and propaganda apparatus.
Being a purported competing legal jurisdiction, aside from harassing public sector employees on YouTube, the Common Law Movement have on occasion sought to give substance to their claims in the ordinary courts. In the recent case of Re T (A Child)  EWHC 1572 (Fam) the birth of a child was not registered owing to the father being fundamentally opposed to the registration, which in his view was equivalent to an ‘entry into a ship’s manifest’, in which the child becomes ‘an asset to the country, which has boarded a vessel to sail on the high seas’. The father cited the Cestui Que Vie Act 1666, whereby creditors and lessors etc. can recover their assets from a person presumed to be lost at sea, if not accounted for over a seven-year period, which in this case would presumably allow the government to ‘help themselves to (the child’s) money and property.’ The father also suggested to the court that, naming the child, would render it a ‘dead entity in the eyes of the law’ and that such dead entities ‘come to life and are temporarily risen from the dead when summonsed to court’ symbolised by the requirement to ‘all rise’ upon the entry of the judge into the courtroom.
It is tempting to imagine that the “freeman of the land” aspects of the Common Law Movement were dreamt up by a deranged Admiralty & Maritime Lawyer, for their avid interest in the misuse of various nautical terms such as referring to a court as a “ship”, its occupants as “passengers” and anyone leaving as “men overboard”. They additionally assert that their legal person operates as “a vessel or ship in the legal realm, floating on the sea of commerce”, which is intrinsically different to their physical self. In Foster v McPeake & Ors  N.I.Master 14 (4 December 2015) the plaintiff identified himself before the court as “Greg of the family Foster” in the belief that doing so, would somehow distinguish between the legal person described on his birth certificate that was subject to statutory law, unlike his physical self which was not, unless he consented to it. The Court here described this kind of “freeman approach” as a “delusional approach to legal issues” which arises from a “murky pseudo-legal world” and “a kaleidoscope of pseudo legalistic jargon, alien to law, practice and the administration of justice in any modern common law jurisdiction and in short… largely nonsense.”
The Common Law Movement overlaps with earlier iterations of the UK Eurosceptic movement and particularly with (the now probably defunct) SANITY, (Subjects Against the Nice Treaty), which in 2001 drew up a people’s petition under the imagined auspices of Clause 61, seeking that the Crown withhold Royal Assent for the Nice Treaty. This petition was supported by a miscellany of Conservative aligned hereditary peers, mostly of the variety opposed to the House of Lords Act 1999, which sought to expunge the upper Chamber of the aristocracy. This petition was mostly disregarded as embarrassing foolishness but is maintained as a cardinal, historical and seminal point of foundation, upon which the modern social-media Common Law Movement is substantiated, particularly in relation to their ongoing and passionate support for Brexit.
The Common Law Movement also includes a rather entrepreneurial “Common Law Court” which alongside marketing expensive tat to its followers, maintains a database of cargo-cultic “case law” of the likes of “The People (Represented by Willie Mercer) v’s Theresa May & Nicky Morgan” where Theresa May has been fined £5,555,555.55 in-absentia for rolling out 5G without the authority to do so, for evidently not having “obtained authority over living men and living women”. In the equally unhinged “The People v’s Nicola Ferguson Sturgeon” farcical interpretations of Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) amongst various other nonsense are employed to suggest that Nicola Sturgeon is guilty of slavery, for the Edinburgh Sheriff Courts making a series of Child Protection Orders, against presumably one John Smith, who evidently maintained “ownership of the children’s Fictitious Names”, thus rendering the Child Protection Orders as “kidnapping” in Common Law cloud-cuckoo land.
The Common Law Movement was very much a constituent element in Brexit support, in the run-up to and following the Referendum though to the EU–UK Trade and Cooperation Agreement and substantively overlaps with the pseudo-legal narratives of Euroscepticism and Brexit in general. This is particularly observable from the tendency towards pseudo-legal arguments that motivated and substantiated Brexit support and gained currency amongst both the online Common Law Movement and the Leave Campaign, the most notorious of which include the viral list about the Lisbon Treaty and highly erroneous readings of Article 24 GATT, which worryingly managed to make it as far as Parliament.
As a post-neoliberal populism, the Common Law Movement is essentially premised on the attempted usurpation of the Executive function of the State in the administration of justice and the creation of law, by the mobilisation of populists in overwhelming numbers, based on the promulgation of falsehoods, valorised obscurantisms, self-aggrandisement and fake history. Although for its utter foolishness, the risk of a Common Law legal jurisdiction materialising in the UK may seem like a very remote unlikelihood, it should be noted that Euroscepticism itself was also meaningless guff limited to the political fringes less than a decade ago and today the UK finds itself leaving the EU, on absolutely no rational economic, legal or political forum at all, other than satisfying the populists, political expediency and the survival of the Conservative Party.
Much like Brexit support points towards tragic disaffectedness, illiteracy, impotence and disenfranchisement, to the point of fantasy and self-harm, the Common Law Movement is an expression of wishful delusion and of a deep mistrust of and frustration with the perceived incongruence between the British Legal system and the welfare and interests of the citizenry. This is particularly ironic given that Clause 40 where “we will not sell, or deny, or delay right or justice to anyone”, is one of the few parts of Magna Carta that is still good law in the UK today and a far worthier forum to campaign on.
Nevertheless, in the post-Brexit environment this Common Law Movement is seeing increased interest and subscription, particularly online. Given the populist realisation of Brexit and the Conservatives’ ideological commitment to the erosion of the writ and mandate of the State in favour of corporates, such trends very certainly give cause for concern. This is particular, given that corporate platform capital and social-media intellectual monopolies, who admittedly or not have a vested interest in the failure of States seeking to regulate them, are by far the most prolific disseminators of the misinformation and obscurantisms that substantiate post-neoliberal populisms.