Why we respect the law in a democracy

A foundation of a stable democratic society is the willingness of all apart from a criminal minority to accept the rule of law and to seek to uphold it. All MPs and Ministers are beneath the law, as are all other citizens. If allegations are made and taken to the courts any accused citizen has to attend and defend themselves. The courts have the power to enforce the law and impose punishments on those who have offended. MPs have no special rights under the law. We collectively have one special power, which is to change the law for the future if the old law has ceased to please or is producing unreasonable results. Parliament also holds the power to change the powers of the courts and to amend the way judges are appointed or removed. In that sense the UK’s Supreme court is Parliament.

Respecting the law does not mean, however, that we have to respect all lawyers and judges all the time, or refrain from commenting on what they do. Just as in a free society a constant stream of criticism, comment and advice to government is an important part of democracy, so there have to be occasions when individual judges and judgements can be criticised or debated for what has been said and done. There have been worrying miscarriages of justice in the past. Those who support the wrongfully convicted have every right to try to revive their case, to petition for a retrial, to go through appeal processes, to seek a reversal of a bad judgement. There can be the occasional incompetent or corrupt judge who needs to be dealt with, starting with public exposure of what they have done wrong.

When judges decide to step into highly political territory as they have done with the recent judgement of the High Court on how to proceed over our relationship with the EU, they must expect to become involved in a heated public debate. A free press is also an important part of democracy. I do not need to agree with the tenor of much press comment on this issue – on either side of the debate – to say I think each newspaper has every right to say what it wishes on the results of the judges deliberations. It is also reasonable in a free society to explore the backgrounds and motivations of judges making highly political decisions, as we regularly explore the motives and backgrounds of Ministers who make similar decisions on our behalf.

I tend to the view that moderate language is better for a sensible public debate, but I don’t want to live in a society where censors decide what is moderate enough. There will always be differences of opinion on what is an appropriate way of stating a case. Sometimes colourful or powerful language is essential to get across the breadth and depth of feeling in the community about an issue.

I will consider tomorrow the powers and opinions of the High Court on the issue of an Article 50 letter, where I think they have made bad mistakes in law, in defining their powers, and in politics.

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194 Comments

  1. Iain Gill
    Posted November 7, 2016 at 5:16 am | Permalink

    I was brought up to believe in British justice.

    Sadly having been in court and witnessed what goes on I no longer have any faith in it at all.

    Judges are overwhelmingly ex public school and the way (some unnamed ed) talk down to ex state pupils is outrageous. Normally the side with the more expensive legal team wins regardless of the facts.

    It’s a sham.

    • Gareth Jones
      Posted November 7, 2016 at 11:52 am | Permalink

      Lost a case, did you?

    • rose
      Posted November 7, 2016 at 11:56 am | Permalink

      This doesn’t apply to Lord Denning. He believed in justice, not in playing games with too clever by half technicalities.

      • Hope
        Posted November 8, 2016 at 11:10 am | Permalink

        He had the intelligence others did not possess (double first), but do not be under any illusion he did not let his opinions affect his decisions, ontrary to the nonsense being spouted at the moment. He would brilliantly make up his mind and find the law to argue his point. He also used plain language to attract a wider audience rather than the grand fanciful language some like to use to make them look clever. He also wanted to have a greater impact on law so he demoted himself to hear more cases and have greater influence over British law. Oh for a person like him to represent the leave campaign. Sadly we have an attorney general who does not appear up to the job.

    • Adam
      Posted November 7, 2016 at 8:51 pm | Permalink

      How dare judges talk down to people? Some might say get over yourself.

      • Iain Gill
        Posted November 8, 2016 at 4:17 pm | Permalink

        nonsense

        like police officers who do not know the basics of the law (youtube is full of cringe worthy examples) talking down to non-criminals, judges using the worst class based prejudices, often against people who are better educated than they are… is hilarious but sad to watch, and frankly will be looked back on in years to come like we look back on casual racism in the 1950’s now with horror that it was allowed to continue for so long

        I have been on both win and lose sides, was not impressed with anything I saw in any court room

        Certainly my freedoms depend more on the ordinary citizens of this country than any public servant

  2. The Active Citizen
    Posted November 7, 2016 at 5:30 am | Permalink

    This well-considered and interesting piece is a good example of why I’ve read your column for years.

    • Hope
      Posted November 7, 2016 at 11:23 am | Permalink

      Totally agree, unfortunately the first paragraph about MPs appears theoretical and aspirational. We know this is not true and the scandals continue by the day. The promises made by all parties to clean up the corrupt rotten Westminster a distant memory in their minds. Radical change will be required if JRs views are to have any meaning.

      • hefner
        Posted November 7, 2016 at 1:13 pm | Permalink

        I would be rather curious about what radical changes are you are after, and to know about what means you intend to use to get them. Thanks in advance for your additional explanations.

        • Hope
          Posted November 8, 2016 at 11:14 am | Permalink

          MP’s not allowed to police themselves would be a good start. Elizabeth Filkin appeared to be doing sterling job until the MPs got rid of her for doing her job. IPSA does. Or appear to be adequate in any way and the select committee on standards a sham, even if it were not it would never be seen to be fair. Right to recall promised and heralded by the politicos fudged to give MPs the final say. You might recall Cameron claiming the public were his boss! A bit like his submission of Rticle 50 the day after our decision!

          • Hope
            Posted November 8, 2016 at 11:18 am | Permalink

            Sorry for the predictive text. There should be a strong independent element that includes the public, we have them in magistrates courts across the land why not included in MPs misdemeanors?

            Overwhelmingly criminal conduct considered by the police before any internal discipline or perverse reference to the police after they decide. Home Secretary no longer required to be involved in the selection of the Met chief so the police are truly independent from politicos. Absolutely daft to have an HMIC who has never had anything to do with policing and our railways hardly an example for a CV.

  3. alan jutson
    Posted November 7, 2016 at 5:59 am | Permalink

    The problem with the present legal system is that very often it is justice if you can afford it.

    Many people simply cannot afford to fund cases against bad judgements, even if you can, then the legal system is so expensive even if you win or prove your innocence, you can financially lose in a very, very big way.

  4. Mark B
    Posted November 7, 2016 at 6:22 am | Permalink

    Good morning.

    I don’t want to live in a society where censors decide what is moderate enough.

    I’ll remember that.

    I listened to the woman, Gina Miller who brought the case against the government on the, Andrew Marr show (via YouTube). She said something that was very powerful. She said; “The Politicians lied” with regard to the referendum and that it was only ‘advisory’. In short, the whole political class, and I include our kind host in this, deceived us into believing that we, the people, were going to decide on our future membership of the EU, when in truth this was not the case.

    This was not a political matter, but one of Constitutional matters and the Judges were asked to look at it in that context.

    Article 50 is very clear. A member country can only leave the EU inline with its own constitutional arrangements. The PM, as we have been wrongly led to believe cannot use the Royal Prerogative on this, Parliament must be consulted. And this is where we come to the other thing that she mentioned.

    Something else that she said that I have always strongly agreed to and think should be part of our Constitution (Body of Law) is that ALL referendums should be legally binding. I have long argued that a referendum is a complete waste of time because there is nothing in English Law that can compel our government and parliament to a course of action via that route. In short, it is nothing, as has been proven, to be a sham.

    So were now ? If parliament does not give the go-ahead for Art.50 we do not leave the EU. If that happens you can bet you bottom dollar that the likes of UKIP, despite their current woes will do a little better next time round there are elections.

    • Iain Moore
      Posted November 7, 2016 at 12:07 pm | Permalink

      If the Executive can use the Royal Prerogative to sign EU treaties, how come it is unlawful to use the Royal Prerogative to un-sign EU treaties?

      I would suggest to you that it isn’t a matter of law, but comes down to the political preference of the establishment.

    • Anonymous
      Posted November 7, 2016 at 12:47 pm | Permalink

      The politicians thought the referendum was real (they didn’t lie and none will admit to it) the people thought the referendum was real, the BBC, the CBI the President of the USA and the EU thought the referendum was real …

      So the referendum was real.

      There is a disparity between what the public and the judiciary thinks and the judges could have found in accordance with the public’s understanding but didn’t.

      • Qubus
        Posted November 8, 2016 at 11:37 am | Permalink

        I voted to leave. However, I distinctly remember hearing on the BBC and reading that the referendum was advisory.
        So in that case, surely, the judgement must be correct.

        Reply Not so

    • Denis Cooper
      Posted November 7, 2016 at 2:16 pm | Permalink

      I don’t agree that all referendums should be legally binding, and nor in principle would it be possible to ensure that any referendum would be legally binding without resorting to some form of entrenchment of the Act which ordered the referendum and said the result would be binding on both the government and Parliament, and that would not be open to challenge in the courts except on the grounds of fraud or miscounts or some other procedural defect.

      And it’s quite obvious that Gina Miller doesn’t really want all referendums to be legally binding either, only those when she is on the winning side and so she does not feel “physically sick” when she learns the result. Obviously I don’t agree with directing vile personal abuse and threats against her, and she has a right to go to the courts, but really she is being totally hypocritical about her true objective as are some MPs and peers.

      I do think that when people go to vote in a referendum they should know whether the result will be treated as binding or as merely advisory, just as they should know the same thing when they go to vote in a parliamentary election, and they should not be cheated by being given the very clear and strong impression that it would be binding before they voted, but then afterwards being told that as it was the wrong result it was really only advisory.

      Imagine if a general election was followed by a court case in which it was argued that whatever voters may have been told and accepted the relevant legislation did not expressly say on its face that the preferred candidates would be given seats in the Commons, and the judges agreed that the elections were only advisory.

    • MikeP
      Posted November 7, 2016 at 2:47 pm | Permalink

      I do wonder though, having listened to Gina Miller on Andrew Marr, and again today on Talk Radio, if the Government had attempted to use the Royal Prerogative to push through a ban on owning more than one allotment, she would have spent her 5-figure sum on fighting it in the High Court?
      This vexatious case was nothing whatever to do with Constitutional process, it was everything to do with delaying and hoping to thwart Brexit, and well she knows it.

    • libertarian
      Posted November 7, 2016 at 3:28 pm | Permalink

      Mark B

      Dont be fooled by this nonsense. Ask yourself this An advisory referendum was seeking whose advice on behalf of whom?

      Answer – the public were asked to advise on what they wanted to happen

      the government who asked for the advice ( and HM Opposition) accepted that advice

      Not being a lawyer or familiar with constitutional law I read a number of people who do know about such things. 3 eminent law professors and the Constitutional Law Associate all believe the court was wrong and that Royal Prerogative was perfectly correct

      Like everything else the law isn’t hard and fast in most cases, lots of it is open to interpretation which is why so many decisions get overturned on appeal. I have no idea whether this will be overturned. What I do know is that its a totally political based attack on the will of the people. Because of course if the courts are right then the SNP government in Scotland can ignore the result there and just declare independence for Scotland.

    • Dennis
      Posted November 7, 2016 at 3:51 pm | Permalink

      Mark B – you are correct.

    • Dave Andrews
      Posted November 7, 2016 at 7:06 pm | Permalink

      When I heard the referendum result, I did think then that it would require a vote in Parliament to give it effect. I was a little surprised to hear TM say that she would initiate Article 50 in her own time, but supposed that was within her power.
      I’m surprised the opposition didn’t demand a vote and it took someone outside of Westminster to bring the matter to court.
      I hope the appeal to the Supreme Court is withdrawn and a vote taken as JR suggested a few days ago. That will crystalize authority as I believe the overwhelming majority of MPs will vote in obedience to the referendum (maybe not all the Scots and NI).
      The vote must not be conflated with terms of leaving, as that was not a contingent of the referendum.

    • Alex
      Posted November 7, 2016 at 7:17 pm | Permalink

      So Mrs Miller has given us at least a helpful political precedent: the next referendum will have to be binding on Parliament or nobody will take it seriously. This is a major win for Direct Democracy : we won’t be fooled again.

    • getahead
      Posted November 7, 2016 at 7:53 pm | Permalink

      The referendum was the result of a parliamentary bill in 2015 in which MPs voted by a majority of six to one that “the decision on our membership [of the EU] should be taken by the British people, not by parliamentarians in this chamber”.

      Parliament has had its vote.

    • Adam
      Posted November 7, 2016 at 9:08 pm | Permalink

      Referendums are indeed advisory, they are consultations. The EU was intending to replace our democratic process with a form of consultation, which includes assemblies and public referndums. Hopefully now this can be stopped. It is easy to forget now that the entire political class was lined up with the EUs agenda and have had to reverse themselves.

  5. Roy Grainger
    Posted November 7, 2016 at 6:56 am | Permalink

    The newspaper comments on the judgement are counter-productive, the establishment stick together, the Supreme Court will be more likely to agree with the High Court judges now. I see Farage is organising a march in London around the time of the Supreme Court judgement which is also a very stupid thing to do as the left wing press and some of the left-wing Supreme Court judges will now say they are standing up to mob rule in finding against the government.

  6. Malcolm Lidierth
    Posted November 7, 2016 at 7:07 am | Permalink

    “When judges decide to step into” this mess misrepresents the position. Nobody has claimed the issues the High Court addressed were not justiciable so they could hardly not consider the case.
    The mess was created by the gaps in the Referendum Act 2015: the Cameron government and Parliament, not the judges, created that mess.

    Reply They could have judged this was a matter for Parliament.

    • rose
      Posted November 7, 2016 at 12:21 pm | Permalink

      “Reply They could have judged this was a matter for Parliament.”

      And they should have judged this was a matter for Parliament if they didn’t throw the case out of court right at the beginning. Properly trained minds would have thought like that.

      Now they have set two extremely dangerous precedents:
      1 HMG cannot now defend us under attack
      2 Any rich foreigner can now manipulate government and parliament through our courts

    • Denis Cooper
      Posted November 7, 2016 at 12:50 pm | Permalink

      Reply to reply: They have judged that this is a matter for Parliament, as opposed to being a matter for the government, while completely disregarding the important fact that 46.5 million people were explicitly told by the government that it would be a matter for them to decide directly and that the government would accept whatever instruction they gave. And as the 1400 parliamentarians are overwhelmingly in favour of staying in the EU, in both Houses, and as the judges have affirmed their constitutional right to set at nought the 33.6 million votes cast in the referendum, there is a very good chance that is what the parliamentarians will do.

    • Leslie Singleton
      Posted November 7, 2016 at 12:55 pm | Permalink

      Reply only more so–Better yet and, as obviously should have happened, someone in and with authority (not what we have today) should just have dismissed the nonsense before it got going by saying that this was not a matter for the High Court. Unbelievable that if we had triggered immediately that would have been OK but instead we are now where we are. And the idea that we should not be able to comment is even more unbelievable.

    • hefner
      Posted November 7, 2016 at 1:18 pm | Permalink

      Comment to reply: So what is Parliament doing right now? writing blogs?

      • fedupsoutherner
        Posted November 7, 2016 at 11:43 pm | Permalink

        Hefner

        Even parliamentarians have free time!

    • Denis Cooper
      Posted November 7, 2016 at 1:37 pm | Permalink

      The mess actually dates back to May 2013:

      http://www.bbc.co.uk/news/uk-politics-22518403

      when the Tory party leaders decided it would be a good gimmick to publish a Tory party draft Bill for an “in-out” EU referendum to be held before the end of 2017, in the same way as they had previously decided it would be a good gimmick to publish a Tory party draft Bill for a referendum on the Lisbon Treaty.

      When observers read that draft Bill:

      http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/14_05_13_draft_referendum.pdf

      they immediately pointed out, here and elsewhere, that it said nothing at all about what would ensue from a vote to leave the EU.

      However when the Tory MP James Wharton came top in the ballot for Private Members’ Bills and agreed to introduce that Bill he changed some other details but he didn’t say “That’s a major flaw, I need to change that”, and nor did Robert Neill when he took it over, and nor did ministers after the 2015 general election when it could be reintroduced as a government Bill.

      But it’s not just the government which to blame for the present mess; we pay 1400 parliamentarians quite handsomely to scrutinise legislation, among other tasks, and as far as I’m aware not a single one of them ever raised this serious defect and said that it needed to be rectified during the partial passages of the two Private Members’ Bills or the complete passage of the government Bill.

    • Denis Cooper
      Posted November 7, 2016 at 5:23 pm | Permalink

      I have been wasting my time watching David Davis answering “questions” – mostly in fact repetitious “statements” – in the House of Commons, and one of the minor architects of the present mess stood up and blustered on about the importance of the independence of judges blah blah blah; and my immediate thought was that if only that Tory MP had bothered to do a proper job with his 2014 Private Members’ Bill:

      http://services.parliament.uk/bills/2014-15/europeanunionreferendum.html

      and made sure that it expressly stated what would ensue from a referendum vote to leave the EU, and that feature had been carried forwards to the government Bill the following year, then there would have been no arguable grounds for the kind of legal challenges we have seen.

      My constant references to “lazy and inattentive parliamentarians” may seem a bit harsh, and perhaps they are a bit harsh for those whose role in this debacle was rather peripheral, just lobby fodder; but that cannot be the case for a Tory MP who agreed to reintroduce this Bill to oblige his party leaders:

      http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0015/cbill_2014-20150015_en_1.htm

      but apparently without bothering to check its contents.

      • margaret
        Posted November 8, 2016 at 5:24 am | Permalink

        The MP’s are not usually voted in for their intellectual ability , therefore I would not expect anything else than just trying to get on the soap box whether it has been said before or not. Dependent upon demographics, the persons who usually become a political representative for their area are those who are confident , like to show off, have some clout in that they have money or other persuasive powers . Some of the members during David Davis questions and answers simply stood up incoherently to insult .This is the ‘House of Commons ‘ and they do not truly represent the commoners of today who are often more intelligent or educated than they themselves .

      • Hope
        Posted November 8, 2016 at 11:25 am | Permalink

        Dennis,
        They are advised and can be advised by the best brains our taxes allow them to use. The consultation bill is huge. They could have got advice from any barrister at any time. They know this. Sadly your view about those ministers in charge may be harsh but your criticisms for MPs for not bothering and being inattentive etc quite correct.

    • Malcolm Lidierth
      Posted November 7, 2016 at 5:50 pm | Permalink

      “They could have judged this was a matter for Parliament.”
      Did HMG’s lawyers ask them to? It was ‘common ground’ that the issue was justiciable.

      HMG could still take this quickly to Parliament, though I see the reason to suspect that it might not get the easy ride promised. I see also the reason for testing a general principle in relation to the prerogative in the Supreme Court as David Davis explained today in the HoC, but that seems risky too. Arguments that might have produced a different outcome in the High Court were avoided by HMG, presumably for fear of winning a ruling on grounds that are appealable to the ECJ. Can they win while avoiding those arguments in the Supreme Court ?

    • Hope
      Posted November 7, 2016 at 7:05 pm | Permalink

      No mess deliberate deceit by Cameron.

    • DaveM
      Posted November 7, 2016 at 7:44 pm | Permalink

      The mess was created by the fact that politicians fannied around and didn’t invoke A50 the following day because they were stupid and didn’t have a plan. Simple. Farage had it exactly right – “what part of [we voted to] leave don’t you understand?”. Leave means leave. Out. Gone. Goodbye and good luck. Independence. Total control over immigration, laws, the economy, everything. Except that Cameron didn’t get the result he wanted and May dithered.

      • NA
        Posted November 8, 2016 at 4:16 am | Permalink

        The mess was created by the fact that politicians fannied around and didn’t invoke A50 the following day because they were stupid and didn’t have a plan.

        >
        That’s what they want you to think?

  7. Mike Stallard
    Posted November 7, 2016 at 7:22 am | Permalink

    It is now becoming apparent that we are going to stay in the EEA and possibly join EFTA. This is very good news.
    Once we have fixed that, we can go forward and work towards a common market of equal nations which is what most of us voted for way back in the 1970s.

    • ian wragg
      Posted November 7, 2016 at 11:07 am | Permalink

      Mike you really must stop acting as spokesman for RN. If we join EFTA or the EEA we3 will still be paying a yearly tribute to Brussels, immigration will not be controlled and we will still be under the direction of the ECJ.
      We voted to leave, there was no associate membership mentioned.
      Even Norway is now talking of leaving as the people are very anti the EU.

      • Hope
        Posted November 7, 2016 at 11:25 am | Permalink

        Well said. We voted leave in its entirety. Remainers are trying to make a distinction and create a new narrative about hard and soft Brexit. Nothing by both sides in the campaign were put on the table. The Remain side made it more clear what leaving would mean when trying to scare people!

        • fedupsoutherner
          Posted November 7, 2016 at 11:57 am | Permalink

          Ian Wragg/Hope

          Agree. It was made perfectly clear to us all time and time again that if we voted LEAVE that is what we would do. Not join part time and still be under the thumb. Can you imagine the numbers of immigrants we will have to take if we stay in? I think it is being reported that Mrs Merkel is advising that boats with illegal immigrants now be turned back. About time too.

          • Hope
            Posted November 8, 2016 at 11:28 am | Permalink

            The fear the Remain camp used was based on leaving and the apocalyptic end of our society as we know it. Isolated in every respect and destitute from the rest of the world. They could not have made their case for remaining any clearer.

        • Chris
          Posted November 7, 2016 at 10:15 pm | Permalink

          ..and well said, Hope, also.

      • Anonymous
        Posted November 7, 2016 at 12:54 pm | Permalink

        Mike Stallard: Justification for remaininig in the single market is now based on “many leavers didn’t really mean Leave.”

        Yes they did. Fully.

        The option was in the referendum for those who put such importance on the single market. ‘Remain’.

        Anyone who feared leaving the single market voted Remain, reluctantly – the vast majority of people I know who voted Remain did so disliking the EU and the conditions attached to the single market.

        Britain voted for equality with nations of similar economic weighting as our own – not the hotch-potch of failed states which have joined the EU since.

        Equality therefore means the EU plan is that the British get poorer – something Remain always accuse Leave of causing.

      • Original Richard
        Posted November 7, 2016 at 4:17 pm | Permalink

        Thank you, Ian.

        RN is a clandestine and clever Remainer who continues to dupe Brexiteers.

        If there was no Brexit plan it was because anything is better than remaining in the EU, especially an EU that is not a fixed entity but intends to expand to include even more countries to the east of Europe, some of whom are not even considered to be European, further diluting our voting power and sovereignty.

        One vote amongst 28 states or 8.4% for the QMV legislative areas is very little different to the so called “fax democracy” derided by the Remainers.

      • Mark B
        Posted November 7, 2016 at 5:33 pm | Permalink

        Joining EFTA does not come with yearly tribute. Joining the EEA means we choose which projects to fund with our monies.

        https://en.wikipedia.org/wiki/EEA_and_Norway_Grants

        http://www.eu-norway.org/eu/Financial-contribution/#.WCC5g4OLRhE

        http://www.efta.int/eea/eu-programmes

        http://eeagrants.org/

        EEA Grants from the UK would be a fraction of what we now pay and, we would decide where the money was spent and how much. Currently, the Commission tells us how much we are going to pay, and we pay it.

        immigration into the UK will not slow irrespective of whether we are in the EU or not. The government have no desire to address it. Witness the so called, ‘Child Migrants’.

        • Denis Cooper
          Posted November 8, 2016 at 11:28 am | Permalink

          “… immigration into the UK will not slow irrespective of whether we are in the EU or not.”

          So we shouldn’t be bothered that staying in the EEA would mean that we would at best only have “some limited” control over immigration, that is if the other EEA member states even agree to us staying in it now they have been publicly warned that we might want to abuse Article 112 in the EEA Agreement to restrict immigration of their citizens.

      • Chris
        Posted November 7, 2016 at 10:18 pm | Permalink

        Yes, Ian, agree. RN has now actually admitted on his website today that there is a real danger that the EEA will be seen as the end of the process and not just the staging post which he advocated in Flexcit. That is something I have commented on months ago to him on his website. Seems he is finally appreciating people’s genuine fears about adopting the EEA option.

    • Denis Cooper
      Posted November 7, 2016 at 1:00 pm | Permalink

      I wonder if you read my comment on a previous thread, that the words “common market” do not appear anywhere in the EU treaties. And nor in fact do the words “single market” actually appear in the EU treaties, although they do appear on EU websites and quite likely appear in some secondary legislation. So all this public discussion about staying in/leaving/still having access to the “single market” is debate about something which does not exist according to the EU treaties, which consistently refer to the “internal market”. I mention this because I think it would be helpful to understanding if the correct term, “internal market”, was used.

  8. eeyore
    Posted November 7, 2016 at 7:30 am | Permalink

    I agree. The judges have exposed themselves and must expect a bit of stick from the public. They should take comfort from the robust words of a former brother in the law: “Clamours never prevail upon me at all; I thank God, I am Clamour Proof, and will never fear to do my Duty.” (Jeffreys LC)

    • Hope
      Posted November 7, 2016 at 11:28 am | Permalink

      Jusges views, like everyone else, is just an opinion. If there were not different views there would be no court cases! To say they are not influenced only acting in law is naive, it s their clever ingenuity that makes them to argue based on their morals and views otherwise why do we have judges giving decisions based on policy or different rules of interpretation?

      • Leslie Singleton
        Posted November 7, 2016 at 12:59 pm | Permalink

        Dear Hope–Quite so–It is opinions that make a Horse Race

  9. SM
    Posted November 7, 2016 at 7:35 am | Permalink

    I found the hysterical reaction of the Bar Association sourly amusing. I think we should remember that barristers liken themselves to taxicabs, saying that they are obliged to defend clients without personal views intruding.

    We should note that one of the defence barristers in this case, Lord Pannick, the current defender of a sovereign parliament, was quite happy to bash that same parliament when serving his previous client Sir Philip Green.

    • A different Simon
      Posted November 7, 2016 at 6:01 pm | Permalink

      One of the most predictable aspects of this travesty of justice is that it seems to have given the whole legal industry an even more exalted sense of it’s own self-importance .

      Shaw and Wilde’s words about the professions and their relationship with the laity have never been truer .

    • Hope
      Posted November 7, 2016 at 7:11 pm | Permalink

      The slow hand clap to Gove before his address to them after the referendum shows bias by the judiciary in the extreme.

      Clarke, Grieve, Starmer all from the legal profession. After hearing them express their views is anyone convinced of their impartiality on such matters or would be able to separate their view from any such issue? Naive in the extreme.

      The Tories need to change selection procedures to such positions of high office to give balance to the Blaire years in power.

      • rose
        Posted November 8, 2016 at 12:07 am | Permalink

        So emotional is Grieve that he uses words like “fascistic” to describe national newspapers reflecting mainstream opinion. Like Mrs Clinton, he is in effect slandering half the nation.

        • Hope
          Posted November 8, 2016 at 7:09 pm | Permalink

          Very clever man who nevertheless is an EU fantatic using his ingenuity and excessive language to try to convince the pres are bad because they do. To share his view or that of the High Court. The press are perfectly legitimate, Levison a travesty to curtail free speech. The EU wants more control over the press perhaps this is the real motive of Grieve?

          Why did Grieve not bring this matter out when in office and rectify it? Why speak now? Did he and other Attorney Generals fulfill their role to the public when in office? When all these powers were wrongly flowing to the EU why did Grieve not speak up and do something about it, as a matter of law of course, setting aside his personal views?

  10. Lifelogic
    Posted November 7, 2016 at 7:43 am | Permalink

    Exactly we and the papers have a perfect right to criticise their judgements if we think they are wrong or damaging or not in the interested of the public. The stance of the bar association and the comments from the Mellor, Patton & Grieve types were idiotic. Though they of course have every right to say these idiotic things if they want to.
    Judgements so often seem to be honed more in the interest of lawyers than the public. Lawyers benefit from multi level courts, conflicting laws & judgements, arbitrary (almost random decisions), poor random laws like Osborne’s GAAR tax, a slow, hugely expensive and highly complex system. And one with lots of levels of appeal.

    The public would benefit from a quick, clear, simple, decisive and inexpensive one.

    I do not think many people think we have the latter.

    • Lifelogic
      Posted November 7, 2016 at 8:30 am | Permalink

      Respect for the law surely has to be earned by making clear sensible judgements in the the public interests and not just demanded by the Bar Council as of right.

      The Bar Council apparently demanded action after claims the judiciary had been attacked by certain Conservative MPs and sections of the media over the controversial ruling on the process for leaving the European Union. What action did they want? A total suppression of free speech by anyone not wearing a wig and gown?

      I assume they will expect Liz Truss to cheer any converse ruling in the higher courts too, should this arise. Or even to cheer the European court of justice if it gets that far?

    • Iain Gill
      Posted November 7, 2016 at 9:42 am | Permalink

      Oh how I enjoy reading Lifelogicsdiary.com every morning.

      Anyone who believes in British justice only has to spend a little time in the courts watching some cases to quickly realise how poor our system is.

      I think we should randomly televise courts and chambers discussions. Let the public see what goes on. Don’t expect the reaction to be positive though.

      • Hope
        Posted November 7, 2016 at 7:16 pm | Permalink

        Particularly Patten who has been given job after job by the boys club to peddle their liberal EU views to the detriment of our country and TV viewing. The public booted him out as an MP. Is he in receipt of his EU pension? Is he required by the terms of the pension, we pay, for to peddle his EU rot about Major’s govt? Has he forgot Major put the Tories in opposition for 18 years and then only a coalition for five years!

        • Hope
          Posted November 7, 2016 at 7:17 pm | Permalink

          Oh, when the public understood what. Cameron stood for voted against his views on the EU!

    • Bob
      Posted November 7, 2016 at 6:52 pm | Permalink

      @lifelogic

      “GAAR tax, a slow, hugely expensive and highly complex system”

      The auto enrolement is a object lesson in unnecessary complication and wrong headedness. I hope the new Chancellor will take the opportunity to simplify it somewhat in his autumn statement.

      The idea that the employer should be responsible for choosing the scheme is just plain wrong. Do I need to tell my staff which bank to use or where to buy their groceries? No, of course not, so why can’t they be compelled to open their own pension accounts with providers that they choose and I’ll just pay the contributions into their chosen pension fund without further ado.

  11. Lifelogic
    Posted November 7, 2016 at 7:44 am | Permalink

    Why did the courts do nothing when the governments from Ted Heath onward, were giving away our democracy without the consent of the people?

    • A David H
      Posted November 7, 2016 at 9:30 am | Permalink

      My initial thought was that maybe no one had paid them to do so.

      That, however, would be too cynical and second thoughts reminded me that a Mr Stuart Wheeler took Gordon Brown to court over the proposed signing of the Lisbon Treaty. Amongst other things, we learnt that a political party manifesto is not worth the paper it is written upon.

      • Denis Cooper
        Posted November 7, 2016 at 2:23 pm | Permalink

        And now we have learnt that an official government leaflet delivered to every household is also not worth the paper it is written upon.

      • Lifelogic
        Posted November 7, 2016 at 2:33 pm | Permalink

        Not most politicians “cast iron” or otherwise words worth the air they are carried on.

      • Bob
        Posted November 7, 2016 at 7:02 pm | Permalink

        @A David H

        “My initial thought was that maybe no one had paid them to do so.”

        Also, the process was undertaken in small steps, so it gradually crept up on us. Most people weren’t really aware of what was happening until the recent spurt of unmanaged migration. Even those with the dullest intellect can now see that we have imported lower living standards from the Eastern EU.

      • Hope
        Posted November 7, 2016 at 7:19 pm | Permalink

        LL, a point made by Jacob Ress-Mogg. When rights and powers of people in this country were traveling toward the EU not a Murmur.

    • Iain Moore
      Posted November 7, 2016 at 9:58 am | Permalink

      The Royal Prerogative was deemed a suitable instrument for the Executive to use to achieve more EU, but it is deemed unacceptable to use to achieve less EU.

      The Judgement on Article 50 clearly shows what camp the Judiciary sit in.

      • Andy
        Posted November 7, 2016 at 5:25 pm | Permalink

        Basically that’s the nub of it. I am quite certain that the Supreme Court will uphold the Judgement even though it is wrong and deeply flawed. The argument was that the Crown cannot remove rights acquired by Statute because the Crown cannot by its Prerogative alter Common and Statute law. Well if we have a Double Taxation Treaty the Crown makes the Treaty and can also denounce it even though we might enjoy rights under it. An EU treaty is no different because the ‘rights’ are acquired via the treaty, not by Statute. If the Court had followed its own logic then all Treaties that the Crown had made since 1972 were illegal. The Court seems to be in favour of ‘more Europe’ and powers etc flowing to Europe, but not keen on the process in reverse. How odd. . . . .

      • Amanda
        Posted November 7, 2016 at 10:09 pm | Permalink

        Absolutly.

    • Qubus
      Posted November 7, 2016 at 11:29 am | Permalink

      Presumably they weren’t asked to ????????

      • Hope
        Posted November 7, 2016 at 7:21 pm | Permalink

        Didn’t Grieve and other Attorney Generals have a duty to act for us? Why did he and others remain silent in office and now speak out?

        • Qubus
          Posted November 8, 2016 at 11:47 am | Permalink

          Quite

    • Gareth Jones
      Posted November 7, 2016 at 11:51 am | Permalink

      For all it’s faults, the law on the whole works reasonably well. It’s why English law and courts are often used in by foreigners.

      Yes, it can be complex; but don’t forget, recourse to the courts is usually done when two parties have no done enough groundwork to set the terms of their relationship properly, and there’s an arguable point at issue. I know the public is suspicious of complexity and experts these days, but the alternative is ducking by stools.

    • fedupsoutherner
      Posted November 7, 2016 at 12:00 pm | Permalink

      Lifelogic Agree. Why didn’t they also step in when Cameron promised the referendum was instruction and not advisory and told us all the decision was ours to take???? No wonder the people are angry. Everything suits the upper classes and everything goes the way they want it to. They cannot bear the everyday man in the street to mould anything if they don’t agree.

      • fedupsoutherner
        Posted November 7, 2016 at 12:01 pm | Permalink

        If Brexit doesn’t happen in its entirety then we have been well and truly shafted by the legal system and by our own governments and politicians alike.

  12. Anonymous
    Posted November 7, 2016 at 7:56 am | Permalink

    Unfortunately we see people who disrespect the law getting favour all the time.

    They push us around because they know we play by the rules.

  13. Edward.
    Posted November 7, 2016 at 7:57 am | Permalink

    “The European Communities Amendment Bill successfully passed through its Parliamentary stages and received Royal Assent on 20 July 1993, with new clause 74 having become section 7 of the Act.[2] The Government then scheduled a debate in the House of Commons on 22 July on a motion under section 7; at Prime Minister’s Question Time on 20 July Major gave the impression that he would ratify the treaty even if the Government lost the vote, because Parliament had approved the treaty he signed.”

    wiki

    And this:

    He said MPs would have the final say over whether Britain opts out of justice and home affairs legislation, when it is taken over by the EU.

    But MPs would not be able to vote on which parts of the treaty Britain wanted to opt in to as decisions on that had to be made within a “three-month window”, he added.

    “It will have to be a matter for the government to make that decision on the basis of what we know to be the best interest of the country but the general debate we will have in the House of Commons,” Mr Brown said.

    He said he was sure some “ingenuous” MPs would find ways to introduce amendments to the bill ratifying it, but he declined to go into detail about the wording of the bill, saying it would be published “very soon”.

    The treaty will greatly alter the way members govern themselves. It creates an EU president and a vastly more powerful foreign policy chief for the union’s 27 nations.

    Prime ministers on the fly, glibly signed away British sovereign rights during two sordid episodes, devilment shifty dealing with both of these baleful accords; Maastricht and that constitution which was rehashed as some ‘treaty’ amendment in Lisbon – that’s OK when it is in the interests of the elite and Brussels. And no judges involved………………

    So if, presently triggering Art 50 is “unconstitutional” why was it that the political manoeuvring and childish feints and shenanigans over Maastricht and Lisbon were regarded by the ‘powers that be’ to in thorough going accord with the UK ‘constitution’?

    Aren’t we being sold a pup – here – again?

  14. Sean
    Posted November 7, 2016 at 8:07 am | Permalink

    This all smells very fishy to me, maybe there needs to be an investigation I to why the judges over turn the public who support to be sovereign.

    If Brexit us stopped, I will lise all faith in the law and politics. I will not defend my country in any wars if this goes ahead, I feel that strong about that stupid judgement.

    • paul cohen
      Posted November 7, 2016 at 10:18 am | Permalink

      This all looked like a put up job to me, whereby someone has arranged this little scenario in order to draw it into the courts where it was expected, and a pre-arranged verdict delivered.

      • hefner
        Posted November 7, 2016 at 1:08 pm | Permalink

        Yeah, right, a big conspiracy.
        I doubt it very much, given that a simple and proper road-map to calling Art.50 does not seem to have been written before the referendum. Such a conspiracy (referring to the courts) would require brains and given the events since the referendum, I despair there are many around.

        • Le Pencil
          Posted November 8, 2016 at 4:01 am | Permalink

          Most things in politics do not happen by accident. Politics is Conspiracy writ Big ( with the devil in the extremely tiny detail that does not come to light for years after )

      • alan jutson
        Posted November 7, 2016 at 2:23 pm | Permalink

        Paul

        Surely not, how could you think such a thing !

        Amusing how both sides have so called experts, but when the other side win it proves they are not, but they still get paid for duff advice.

        Time in court and in preparation is a very big earner.

        Win, lose or draw, it does not matter financially and if it goes to appeal its a financial bonus.

        Anyone who has used the courts knows its the absolute last resort.

  15. Ed Mahony
    Posted November 7, 2016 at 8:09 am | Permalink

    ‘but I don’t want to live in a society where censors decide what is moderate enough’

    – No-one is saying the newspapers should be censored. But that they should be openly condemned by public opinion, in particular those of influence in public life, in the way say such shameful things about members of the judiciary. It’s vulgar, undemocratic in spirit, and just wrong.
    Regards

    • LordBlagger
      Posted November 7, 2016 at 9:38 am | Permalink

      Nope. It’s right. Particularly where there are issues of impartiality involved.

      • Ed Mahony
        Posted November 7, 2016 at 11:34 am | Permalink

        ‘Nope. It’s right. Particularly where there are issues of impartiality involved’

        – You’re missing the point.
        Challenge them. And challenge them hard. But not in the vulgar, vitriolic, and puerile way we saw the Mail and Express do it.
        Seems to me as if there are lot of middle-aged people in this country having mid life crisis, losing all sense of dignity about themselves and their country.
        And we are now becoming the laughing stock of the world – and I don’t mean in Europe, but around the world in general.
        This generation is like a different people to the people of these islands who fought the Nazis under Churchill. They’d turn in their graves if they saw the behaviour and attitude of people today (not that it’s wrong to support Brexit but the WAY in which it’s being done since the referendum). Shameful.

    • Iain Gill
      Posted November 7, 2016 at 9:47 am | Permalink

      We already do live in such a society. As the super injunctions make clear there is no freedom of speech in this country equivalent to that in the US.

      • NA
        Posted November 7, 2016 at 12:42 pm | Permalink

        We already do live in such a society.

        >
        We live under the illusion of a free society, just as the Soviets did. The truth is we are being deceived on a mind blowing scale and everyone with an IQ over a certain level (who takes an interest in politics and the media), knows it.

        • fedupsoutherner
          Posted November 7, 2016 at 11:51 pm | Permalink

          Reply to NA

          Agree. It is amazing what is going on in Europe and indeed the rest of the world today that is purposely not reported on for the interest of the general public. So much is either politically incorrect as far as the establishment is concerned or just covered up as it doesn’t look good for whoever is supposed to be in control. I think people would be more concerned for their futures if they took more notice of things around them and did a bit more delving themselves.

        • Iain Gill
          Posted November 8, 2016 at 4:19 pm | Permalink

          indeed

    • Anonymous
      Posted November 7, 2016 at 11:08 am | Permalink

      And nor should a politician (particularly one rejected by the voters) tell the PM what she must say to that press.

    • rose
      Posted November 7, 2016 at 1:24 pm | Permalink

      The press – in this case one tiny part of it, just 3 powerless papers – must be allowed to reflect public opinion, as the broadcasters don’t.

  16. David Murfin
    Posted November 7, 2016 at 8:18 am | Permalink

    It would be extremely ironic if a court judgement that Parliament is sovereign over the executive is used so that parliament votes in such a way as to prevent our leaving an organisation which takes away the sovereignty of our parliament.
    It is also ironic if parliament, as the guardian of citizens’ rights against an almighty executive, voted to restrict the executive power so that it could not implement the will of the people expressed in a referendum, even more so if then parliament did not implement that result.
    Given concerns over the powers of the House of Lords to delay matters, could not a Commons Bill (if needed) be expressed as a money bill? eg
    “The First Lord of the Treasury shall take such measures as are necessary to end all payments to the European Union arising from UK membership of the EU, entering into negotiations to determine the extent of these liabilities, giving due notice to the European Council under Article 50 of the Lisbon Treaty.”
    Given that our entry and first referendum to stay in the European Economic Community was on the basis that we were joining a Common Market, not a political union, that would seem an appropriate way to leave.

    • Denis Cooper
      Posted November 7, 2016 at 2:28 pm | Permalink

      I’m not sure that would induce the Speaker to certify that it was a Money Bill.

  17. Anonymous
    Posted November 7, 2016 at 8:19 am | Permalink

    If Mrs Clinton wins we can forget Brexit. We’ll be used to confront Putin by our proximity with the EU.

    • Mitchel
      Posted November 7, 2016 at 10:10 am | Permalink

      I agree.I’m sure additional pressure from that source will be brought to bear on our gutless establishment if that (woman ed) wins the election.

  18. Ian Wragg
    Posted November 7, 2016 at 8:31 am | Permalink

    John. We generally obey the rule of law but this last few years it has become apparent that we British are at the back of the queue for justice.
    A politically motivated judiciary has trampled on our ancient rights.
    Yesterday I read Lord Falconers piece about politicians calling for Mrs Mays head. I think the public are more likely to demand the scalps of the unelected HoL especially the likes of Cameron’s wifes hairdresser.
    etc ed

  19. Ed Mahony
    Posted November 7, 2016 at 8:43 am | Permalink

    Working class people voted Brexit because of immigration. With less immigrants, and so less competition to jobs, they expect their standard of living to rise.
    Without these voters, Brexit wouldn’t have come a mile in winning.
    But if these voters find their standard of living doesn’t rise, but actually declines, then they will feel they had been cheated. Therefore, these people will demand a second referendum – to return to the EU when things were better.
    Therefore, the Brexiteers have to deliver economic success to these people in order to prevent a second referendum at some point in the future.
    Can they deliver?

    (And can they deliver on not upsetting the geopolitics of Europe which is about increasing the prosperity, peace and security of Europe overall to prevent all kinds of threats to this continent that can arise from economic and political instability – which in turn can come back to affect us as we experienced in WW1, WW2, Communism in Eastern Europe and the Cold War – meanwhile, Europe, as a whole, has to face the pressure of mass migration from the Middle East and Africa, the threat of terrorism, and Russia on our border – most recently prowling the English Channel with an aircraft carrier).

  20. Yudansha
    Posted November 7, 2016 at 8:44 am | Permalink

    There are several commenters here who appoint themselves as arbiters of what is ‘moderate’ enough.

    It seems the majority of voters are now criminalised or considered in need of sectioning under the Mental Health Act for their views, according to Remainers.

    Keep it up, chaps.

    Nothing inflames a Brexiter’s passion more – as proven by the referendum result in the face of dire threat and insult.

  21. Gareth Jones
    Posted November 7, 2016 at 8:47 am | Permalink

    I totally agree, John. The newspaper headline calling judges “enemies of the people” was, in my humble view, immoderate, unhelpful, wrong, savage and basically propaganda. But like you I take the view that it is better to live in a society where we are all free – including newspapers – to express our views.

    As it happens, my freely-expressed view is that the writers and editors responsible for that headline are undemocratic, treasonous etcs ed.

  22. MPC
    Posted November 7, 2016 at 8:53 am | Permalink

    Whatever our respect for the law, you have to admit the Remainers have played a blinder with the High Court case. It increasingly looks as though we Leavers won the referendum battle but look set to lose the war for democracy given most commentators think the Supreme Court’s judgement will support the High Court.

    I hope it is still possible to revive your sensible proposal to draft a short Act of Parliament removing the supremacy of EU Law but retaining existing EU laws/regulations which would dare the Remain MPs to vote it down. But it doesn’t seem that Ministers are willing to commit to this.

    There’s a certain irony in the current circumstances. The legal judgement means that the government’s ‘Great Reform Bill’/Act looks set to be no more than a ‘tidy up’ of our relationship with the EU bringing us, at best, EEA membership, and all that goes with that.

    • ian wragg
      Posted November 7, 2016 at 11:39 am | Permalink

      You mean staying in the EU on worse terms than now. No doubt many remainers and the establishment would like that.
      Christopher Booker and Richard North are always advocating EFTA/EEA which of course would be game, set and match to the remainers.
      Yearly tribute to Brussels, unlimited immigration and overseen by the ECJ. pretty much what we have now without MEP’s or Commissioners. Drunker would love that.

    • Denis Cooper
      Posted November 7, 2016 at 2:31 pm | Permalink

      The short Bill should be to confirm that the government has the legal authority to serve the Article 50 notice that we intend to leave the EU.

  23. JoolsB
    Posted November 7, 2016 at 9:02 am | Permalink

    ‘MPs have no special rights under the law. ‘

    You’re joking aren’t you John? If a member of the general public had committed the offences that a large number of MPs committed in the expenses scandal, they would have been looking at a prison sentence for fraud!!

    Reply The ones who committed fraud and theft were prosecuted and put in prison.

    • Roy Grainger
      Posted November 7, 2016 at 12:30 pm | Permalink

      MPs plainly do have special rights under the law. For example they can stand up in the Commons and claim someone is a paedophile with no threat of prosecution for slander when that turns out to be untrue.

    • NA
      Posted November 7, 2016 at 12:37 pm | Permalink

      Reply The ones who committed fraud and theft were prosecuted and put in prison.

      >
      20 minutes in the stocks would have done while we all threw eggs at them and they could still have gone home that evening. I felt a bit sorry for MPs who got jailed (seemed a bit extreme). Jail is such an awful place.

    • Deborah
      Posted November 7, 2016 at 4:45 pm | Permalink

      Sorry, John, but the law that applies to the rest of us is
      “Expenses paid by the employee are allowable only if they are incurred wholly, exclusively and necessarily in the performance of the duties of the office or employment.”
      All those MPs who overclaimed and didn’t pay the relevant tax committed an offence.

    • JoolsB
      Posted November 7, 2016 at 10:40 pm | Permalink

      A token handful went to prison. There were many more who ‘were just acting under the rules’ – fiddling thousands from the taxpayer. Rules that do not apply elsewhere and had Joe Public fiddled his expenses to the same degree would not have been let off so leniently.

      • NA
        Posted November 8, 2016 at 4:38 am | Permalink

        Elliot Morley MP was genuinely remorseful and stressed to me before he was sent down that there are many honest and good MPs unlike him. And that I should not use him as an example.
        If MPs are (genuinely) remorseful then they should not have been sent to jail.

  24. mike fowle
    Posted November 7, 2016 at 9:19 am | Permalink

    Just a thought. Presumably this was an application for judicial review? How can you review something that has not happened yet?

  25. Bert Young
    Posted November 7, 2016 at 9:32 am | Permalink

    Judges are fallible – just like any ordinary person . When they are appointed to High Office , it does not mean that they can be trusted to know everything about the law ; their appointment simply recognises that they are an intelligent operator who has gained more identity in their practice than others .

    Interpreting the law is – and can be , ambiguous . One lawyer’s view may not be the same as another – hence there are normally 2 sides of an argument and they are presented to the bench this way . In the recent much publicised High Court action , it is reasonable to believe that the considerations and decision made came from interpretations that were biased in the first place . Subsequent reviews of cases have often led to them being overturned – often due to the attention of the media and public feeling .

    As it stands the referendum result has been tarnished by the High Court and the very basis of our democracy torpedoed . Voters expect their representation to be effective and decisions subsequently made from sensible debate . When a vote is taken in the House and a majority decision reached it normally means that everything has been reviewed and a conclusion arrived at – all under the public eye ; this was certainly not the case in the High Court hearing and judgement .

    I cannot believe that the majority will of the people can be overlooked ; if the Supreme Court do not give a thumbs up to TM ; it means the rug will be pulled from underneath her feet and her ability to manage the affairs of the country will be put in ruins .

  26. Antisthenes
    Posted November 7, 2016 at 9:33 am | Permalink

    The British have been bashing the judiciary since at least the time of Shakespeare did he not say something in one of his plays like “kill all lawyers”. A tradition that we should cherish metaphorically at least. We know a lot about lawyers and judges so we know that the outcome of very few court cases can be predicted in advance which tells us that it is as much about personalities as the letter of the law that wins or loses a case. Many a judgement is handed down to be ridiculed by the general public because they see them as being perverse, puzzling and not in the law abiding’s best interests which tells us that judges favour their own sanctity and ideology than that of the citizens they are their to serve.

    The recent judgement on triggering article 50 could have gone the other way as the law is what the judges say it is and who can prove that it is not correct. We can doubt and question it appeal and win and yet the new judgement could if there was an even high court be appealed again. Lose win ad infinitum. If it had gone the other way then those now castigating vehemently the judgement would be remainers. As is their right. Sometimes judges overstep their authority when their personal convictions clash with the will of the people and the former supersedes the latter in forming their judgement and their recent judgement fall into that category. I say that because the highest court in the land as you say is parliament who are by proxy the people and the people have given their opinion and it should be respected.

  27. LordBlagger
    Posted November 7, 2016 at 9:37 am | Permalink

    So how come we can join the EU on a Royal Prerogative, but not leave?

    • Bob
      Posted November 7, 2016 at 7:14 pm | Permalink

      If the 1972 European Communities Act was implemented under Royal Prerogative then that should be taken into consideration in this case. If the Royal Prerogative is deemed to be unconstitutional, then the ECA72 should be immediately repealed without further ado.

  28. Dee
    Posted November 7, 2016 at 9:39 am | Permalink

    ‘When judges decide to step into highly political territory as they have done…”

    Judges do not ‘decide’ to intervene. A case is brought by a claimant and judges then have to deliver judgement based on the law. The summary of the judgement is written in plain English so that anyone can understand the reasoning, whether or not they have legal knowledge. It is available online. The summary makes clear that all parties including the Government agree that it is the High Court’s place to make a judgement. The summary emphasises that the the judgement is about the narrow point of law, and the rights and wrongs from a political point of view are irrelevant to the court.

    Ian Duncan Smith said in a TV interview that the behaviour of the judges was ‘unprecedented’. The Government’s actions are challenged on a daily basis by members of the public. Often, if the Court finds the Government has acted beyond its legal rights, the Government will get its way by amending the law, via Parliament. The Court does not care one way or the other about the ‘content’ of the law, just if it is legally enforceable in the case it has been asked to judge.

    Brexit is one thing. The erosion of the British constitution with this ignorant disrespect for its institutions is far more serious.

  29. The Prangwizard
    Posted November 7, 2016 at 9:41 am | Permalink

    The lawyers demand that we respect an independent judiciary.
    I will if I am sure they give independent and unbiased judgements.

    In the Brexit case I do not believe they have. We do not want politicised judges and the people have a right to be respected in their views. The complaints by the bar association give an indication to me that they have dangerously arrogant and elitist frame of mind. They need to be brought down a peg or two and not appeased.

    And newspapers are indeed entitled to speak out.

  30. CHRISTOPHER HOUSTON
    Posted November 7, 2016 at 9:41 am | Permalink

    “Why we respect the law in a democracy”

    My preference could be, instead : Why we should respect the law were there a democracy.

    • hefner
      Posted November 7, 2016 at 1:00 pm | Permalink

      Are you really saying that there is no such thing as democracy in the UK?

      • CHRISTOPHER HOUSTON
        Posted November 8, 2016 at 12:45 am | Permalink

        If there is, then why in God’s name have Brexiteers being making such a fuss?In fact, continue to do so?

  31. Iain Moore
    Posted November 7, 2016 at 9:50 am | Permalink

    It was fine for people to declare Dame Butler Sloss unsuitable to head the child abuse inquiry because it was felt her late brother hadn’t given child abuse sufficient attention 30 years ago. Yet Chief justice Thomas , on an issue that wasn’t a third party conflict of interests, but something he was directly involved in, the set up of a body that was seeking to enhance legal integration across the EU, ELI, was deemed outrageous for people to point to as a conflict of interest when he sat on the Judgement of the application of Article 50. It looks like double standards to me.

    It should also be pointed out that a video of Dianna Wallis , the President of Chief Justice Thomas’s European Law Institute , has surfaced showing her campaigning to obstruct Brexit.

    http://www.europeanlawinstitute.eu/about-eli/

  32. Denis Cooper
    Posted November 7, 2016 at 10:28 am | Permalink

    As an aside, JR, you have overlooked crucial special rights enjoyed by parliamentarians, the right to control their own proceedings and a right of free speech going beyond that enjoyed by the rest of us, as enshrined in Article 9 of the Bill of Rights 1688:

    http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction

    “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

    And that is not a dead letter, any more than the first two articles which were by cited by counsel for the claimants in this case, in modern English, page 150:

    https://www.judiciary.gov.uk/wp-content/uploads/2016/10/20161013-all-day.pdf

    “The pretended power of suspending of laws, or the execution of laws by a legal authority without consent of Parliament, is illegal.”

    “Late dispensing power. That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of
    late, is illegal.”

    In fact there’s a 2013 discussion of that parliamentary privilege here:

    http://www.publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/4306.htm

    Interestingly at one time the first action of a new Parliament was always to petition the sovereign for freedom of speech during its debates.

  33. Peter Davies
    Posted November 7, 2016 at 10:42 am | Permalink

    Having not had much time to look into this issue, is there anything in the fact that there is qmv coming into force next April and the fact that the leading judge has a vested interest in eu law (which a,normal juror or magistrate would be taken off the case) makes this seem like a stitch up?

    • Denis Cooper
      Posted November 7, 2016 at 2:32 pm | Permalink

      Not again!

  34. acorn
    Posted November 7, 2016 at 10:53 am | Permalink

    There are two good articles on Wikipedia that give you a clue to the current UK malaise. “Constitutional convention (political custom)” and “Constitution of the United Kingdom”. The UK has no single written Constitution, that is found in modern Sovereign States. The UK is overly dependant on “Constitutional Conventions”, that are not, and cannot be, enforced by courts of law.

    The Canadians realised the above problem back in 1981. The Supreme Court of Canada came to the conclusion “They [Constitutional Conventions] are generally in conflict with the legal rules which they postulate and the courts may be bound to enforce the legal rules.” More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice.

    Not that any of the above concerns UK citizens. The law is whatever the Daily Mail says it is. The enemies of the people are whomever the Daily Mail says they are. etc ed

  35. They Work for Us?
    Posted November 7, 2016 at 10:53 am | Permalink

    The legal profession overall are seen by many to be too numerous and an expensive parasite on productive society. Some are good and the traditional family solicitor springs to mind. Many of the higher echelons see themselves as above the proles and part of the governing establishment. The law to them is an expensive (for someone else) intellectual game and a venue enabling delight in the academic debate of the finer points of the law as long as someone else is paying for their time.
    The ultimate law is the will of the people as expressed in the referendum result.

  36. Yudansha
    Posted November 7, 2016 at 11:06 am | Permalink

    It seems odd that Remainers object to the use in defence of Brexit of a Government leaflet (sent to every address) telling us that the referendum was our decision and would carried out.

    Yet the same Remainers seem happy for an obscure Commons Library Briefing paper being used in support of their side.

    • Denis Cooper
      Posted November 7, 2016 at 2:39 pm | Permalink

      Yes, and they are happy for the judges to rely upon something written by Dicey in 1915, before the idea of referendums had gained any currency in this country.

      Paragraph 22:

      https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

      “The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament … ”

      So that’s it then, if you like you can invite 46.5 million citizens to express their will and 33.6 million of them may bother to do so, but the judges are still living in 1915 and know nothing about the will of the people as expressed in a referendum.

  37. Kenneth
    Posted November 7, 2016 at 11:06 am | Permalink

    It’s obvious that the BBC is not happy with the Daily Mail’s reaction to the court judgement.

    I am not happy with the BBC’s coverage of the whole Brexit issue.

    If someone doesn’t like the Daily Mail’s coverage they have a simple remedy: stop paying for it.

    However, since I am forced to pay the BBC to watch other channels (most of which pay their own way), I do not have the option to stop paying.

  38. Peter VAN LEEUWEN
    Posted November 7, 2016 at 11:06 am | Permalink

    As a foreigner I find it a little surprising that a government (the May government), which didn’t even exist before the end of June, claims to have a mandate to bypass parliament, which in turn claims to be supreme!
    Not a bad thing to have independent courts yo check all this with the rule of law. Never a dull moment for foreign spectators 🙂

    • Ed Mahony
      Posted November 7, 2016 at 11:27 am | Permalink

      Prof Hawking was absolutely right. Brexit is extremely complicated, and not even he – former Lucasian Professor of Mathematics Cambridge – can work it all out (even though he was, of course, being slightly tongue-in-truth, nevertheless, the extreme complexity of Brexit remains).

      And involved in this extreme complexity are the unintended consequences of Brexit that keep popping up all over the place.

      If Brexiteers hadn’t worked it all out before the referendum, and are depending on wishful-thinking, then they’ve taken us down a blind alley, and that can only end in tears (no-one running a successful business would do this, how on earth do politicians think it will work out for them?) I think that’s why people now are so desperate to hear about the government’s plan to see how much thought has gone into Brexit and what contingency plans they’ve made in case things don’t work out – not forgetting of course, that David Cameron had zero plan if things went wrong).

      • ian wragg
        Posted November 7, 2016 at 11:44 am | Permalink

        Brexit is only going to be complicated because the estrablishment want us too lose interest.
        It is never too complicated when they are signing EU directives, bills and protocols which have a devastating effect upon the general public.
        PvL’s government lost their referendum earlier this year and they are looking of ways to ignore the result.
        Page one of the EU play book, ignore the little people.

        • Ed Mahony
          Posted November 7, 2016 at 11:54 am | Permalink

          ‘Brexit is only going to be complicated because the estrablishment want us too …… this year and they are looking of ways to ignore the result. Page one of the EU play book, ignore the little people.’

          – This isn’t an objective, logical argument.
          It’s all subjective – subjective thoughts here and there – masking as an argument but it’s not argument at all unless each point connects logically and you make an effort to back up and support what you say.
          If we carry on with this approach in general, then there’s no way Brexit can succeed (I mean businesses would flounder under this approach – unless we are precise in thinking through every argument of Brexit objectively and logically, then we’re merely being indulgent, and we’ll pay dearly for it).

        • Peter VAN LEEUWEN
          Posted November 7, 2016 at 1:00 pm | Permalink

          @ian wragg: You’re not very well informded I have to say. This was not a government’s referendum (in the Netherlands) but forced by action groups and the result of this CONSULTATIVE (as such not binding) referendum are not ignored by the government and, lastly, it has nothing to do with “the little people”. Take a course in Dutch and then you’re welcome to get involved.

        • Graham
          Posted November 7, 2016 at 7:40 pm | Permalink

          Good comment and I agree wholeheartedly.

          PvL EU stooge is at it again – lacky poodle that he/she is!!

      • Anonymous
        Posted November 7, 2016 at 1:04 pm | Permalink

        Ed – On that basis then Theresa May can lecture Cambridge on Quantum Theory.

        Citing Mr Hawking’s position in the field of science is a bit odd. It is quite irrelevant to politics.

      • rose
        Posted November 7, 2016 at 1:35 pm | Permalink

        I was well aware before we voted that if we won the Remainiacs would try every trick in the book to overturn the result. I was also well aware that they had layer upon layer of power and influence with which to do it.

      • Deborah
        Posted November 7, 2016 at 4:55 pm | Permalink

        “that’s why people now are so desperate to hear about the government’s plan” Which people? I don’t know anyone who is desperate to hear the government’s plan. In the real world people (both Remain and Leave voters) just want the govt to get on with it.

    • Andy
      Posted November 7, 2016 at 5:15 pm | Permalink

      The Government (which did exist before June – It is teh Queen’s Government which carries on) is not seeking to do anything BUT to apply the Constitution. In the UK making and denoucing Treaties is a matter for the Crown, NOT Parliament. The Judiciary are seeking to subvert the rights and prerogatives of the Crown within our Constitution. It is outrageous, but I predict that the Supreme Court will uphold the flawed judgment made last week.

  39. DickCliff
    Posted November 7, 2016 at 11:11 am | Permalink

    In the last few decades it does not appear the law has respected a word of sub judice nor the spirit of it in a wider more human sense.

    We regularly see what we used to call Trial by the Media”. It did not used to be so.

    It is wonderfully pompous and smacks of those definitive Edgar Lustgarten introductions how even Tory politicians speak of the Independence of the Judiciary.Well Lustgarten’s late night monochrome and monotone wise counsel provided certainty to all of us after the lawless barbarism of the War. But it was a lie nevertheless.

    Interpretation of the law of course is based on personalities, politics, social environment and what one may call “the general state of acceptance “.
    The Referendum result fundamentally changed the basis of the interpretation of law. The interpretation of law by the High Court is now unacceptable and quite frankly was unacceptable way before the referendum result. Who do you think you are kidding Mssrs Lawmen?(!)

  40. Ed Mahony
    Posted November 7, 2016 at 11:16 am | Permalink

    Challenge to Brexiteers regarding trade deals:

    – India is now demanding that the UK increase immigration from India into the UK in return for a trade deal. Had Brexiteers considered such a scenario before the referendum? (If so, how are they going to deal with this?)

    And to what degree will other countries make demands like this (or other kinds of demands) during trade deal negotiations with the UK?

    Also, have Brexiteers considered that countries in distant parts of the world have far less geopolitical interests with the UK than the rest of Europe does with the rest of the EU. Therefore, these countries outside the EU are going to be much more demanding in their negotiations.

    Also, have Brexiteers considered that we’re going to be facing an even bigger challenge with India, China, Japan and the USA, as all these countries have invested billions in the UK within the investment strategy of using the UK as a bridge into the EU. Japan has already been vocal and public in its concern about Brexit. Now India are having their say. And it’s only going to lead to these countries to be even more demanding in any trade deals with the UK.

    Lastly, how are the Brexiteers doing in terms of training up our negotiators to negotiate with the rest of the world (it’s a tricky business, can take years, and we don’t have very many people trained to negotiate outside the EU).

    Brexiteers need to be really challenged here because we have a huge national debt to pay off and so we don’t have that much time to negotiate our withdrawal from the EU and then negotiate trade deals with the rest of the world that can take years.

    The national debt clock is ticking and so we need to ensure the leading Brexiteers are up to scratch on this. We can’t afford delay, mistakes or bad deals either with Europe, but especially with countries outside the EU.

    • Ed Mahony
      Posted November 7, 2016 at 11:19 am | Permalink

      ‘Also, have Brexiteers considered that we’re going to be facing an even bigger challenge with India, China, Japan and the USA, as all these countries have invested billions in the UK within the investment strategy of using the UK as a bridge into the EU’

      – not forgetting of course that much of this investment will be lost, so another reason why we really need to work even faster and get an even better trade deal with these countries to get back what we lost through investment lost as a result of leaving the EU.

      Reply Why will it be lost? We remain a crucial market in our own right, and a good centre for making things to sell all round the world. Many cars from Jaguar/Land Rover are exported to non EU countries.

      • Ed Mahony
        Posted November 7, 2016 at 12:02 pm | Permalink

        ‘Why will it be lost?’

        – Just listen to what the Japanese government and others are saying.

        ‘and a good centre for making things to sell all round the world’

        – With respect, sir, you’re responding to a point i never made! I never said we weren’t good at making things and selling around the world. I was talking about investors investing in the UK where they are using the UK as a bridge into the EU. And I’m only following up on what the Japanese said and what any foreign investor would be concerned about in this kind of investment.
        So inevitably, we’re going to lose this kind of investment – from one degree to another – and that will affect jobs and economy.

        ‘Many cars from Jaguar/Land Rover are exported to non EU countries’- I never said they weren’t. That’s a different argument (and no-one, certainly not me, is saying foreign investors are going to pull out altogether … but that there will be a decline for the reasons stated above).

  41. oldtimer
    Posted November 7, 2016 at 11:17 am | Permalink

    Reflecting on the evolution of our law I am reminded that significant aspects of it, such as the end of the doctrine of the divine right of kings, came about through extreme acts of violence. More, thankfully, evolved through argument and debate. But it certainly was not divorced from the political process. Indeed experience suggests that our common law heritage has been overwhelmed by the influence of politics and the use of statutes. The judgement in this case has aroused outrage precisely because it has ignored the politics of the case, the referendum result. The public smells a rat.

  42. Denis Cooper
    Posted November 7, 2016 at 12:11 pm | Permalink

    I think that this case has done huge damage to the reputation of the judiciary, and even if the verdict is reversed by the Supreme Court that will not undo the damage.

    Over the years I’ve had quite a few arguments with people about judges, and defended them by pointing out that basically they are just attempting to do what politicians in Parliament have said they should do, but I don’t think I can say anything like that about this judgment as both politicians and judges are complicit in the fiasco.

    The judges could have resolved this matter sensibly, essentially by siding with the people against the politicians, but instead they seem to have seen it as their role to rescue lazy and inattentive parliamentarians from the consequence of their own incompetence to the detriment of the people. And for the first time it is not just a minority of political activists who have been denied justice, as in previous cases brought to resist the encroachments of the EU, because the entire electorate was engaged by the referendum, but the judges have decided that their views and interests count for nothing. Discontent will extend beyond those who voted to leave the EU, to many of those who voted to stay in the EU.

    Moreover justice must not only be done, but must be seen to be done; and even if he was in fact capable of rising above his personal prejudices to deliver a fair judgment there is a strong argument that at least one of the judges should have recused himself from this case. As should perhaps four out of the eleven Supreme Court judges who will hear the appeal, according to this report in the Sunday Times:

    http://www.thetimes.co.uk/article/the-bench-connection-four-appeal-justices-have-links-to-europe-2v9kq3krz

    “Four of the Supreme Court judges who will decide whether Theresa May needs parliament’s permission to trigger Brexit have had links to the EU.”

  43. margaret
    Posted November 7, 2016 at 12:25 pm | Permalink

    Very clear ordered points scripted John. We require clarity. The law is often open to interpretation and taken down a line following a mistaken interpretation. When I say mistaken, I mean that the intention, when writing down that particular law, is not consistent with how it is being used.

    I particularly like the first paragraph which sets out powers and the default button.

    The languages are many in the EU and this is where nuances can not co exist in law.

  44. NA
    Posted November 7, 2016 at 12:26 pm | Permalink

    A free press is also an important part of democracy.

    >
    The only way we can possibly know the future is to consult those who control Military Intelligence? as they control the media and this country is media led.
    MPs are just blown hither and tither by the wider media narrative (they create).

  45. NA
    Posted November 7, 2016 at 12:30 pm | Permalink

    It’s obvious that the BBC is not happy with the Daily Mail’s reaction to the court judgement.

    >
    This is all a false dichotomy and a hegel dialectic, which is why I am not biting.

  46. hefner
    Posted November 7, 2016 at 12:55 pm | Permalink

    “It is also reasonable in a free society to explore the backgrounds and motivations of” the press barons ” making highly political” comments, without anybody, it seems, willing to take them to task when they make inflammatory comments aimed at people among which some already are in pre-insurrectional mood.

    What are they looking for?
    If at the end, as I think, it is just to make more money, it is simply despicable

  47. ian
    Posted November 7, 2016 at 1:19 pm | Permalink

    Mr Edward the only pups you are being sold are the ones your party pick out for you to vote for.
    When this started way back when, there has only ever been 30 hard core con party MPs for out of the EU as was the case in 2014 which grow to 50 after con party won election in 2015 and went on to grow to 152 at the PM election as more con party MPs saw that there area had vote for out but still over a 100 voting against there area and even now you have hold outs against the people will, can you not fine any better people to vote for.

  48. Norman
    Posted November 7, 2016 at 1:30 pm | Permalink

    Our system of law goes back a long way, at least to Christian King, Alfred the Great. They were based on the Bible. That is what the Queen was, by Act of Parliament, to uphold. In recent decades, we have slidden into moral relativism – we think we know better. That’s why now, I can be criminalized for refusing to do something as simple as not decorating a cake with a slogan which is against my conscience. So is it any wonder that the once great institutions that graced our wonderful country are now in such steep decline? The fact that the Bar Council bleated their disapproval of the Press comment on the case in question, was itself a salutary spectacle. The Government were right not to rise too much to the complaint. It is to be hoped – and perhaps it is a very faint hope – that, in due course, the Brexit process will lead to a climate which will see ‘times of refreshing’.

  49. PaulDirac
    Posted November 7, 2016 at 2:39 pm | Permalink

    Several articles about the judges allege that four of the eleven have extensive links to the EU establishment, three of those were those who passed the judgement we are discussing here.

    One would expect that any judge who find himself / herself as judge in a case in which has a visible conflict of interest should recuse himself from the case.
    This is especially relevant in this case where the issue is very contentious and politically sensitive.

  50. Stephen Berry
    Posted November 7, 2016 at 2:51 pm | Permalink

    This is all very well said by our host. Most of us support the rule of law, not the rule of lawyers. Indeed, it’s difficult not to be positively suspicious of a group of workers practising a closed shop and deriving a large part of their income from the taxpayer. That some of them also think they should be above criticism smacks of some kind of mediaeval priesthood.

    Like most priesthoods, they want to increase their power. One of their favourite ploys is to maintain that certain types of trial are too complex for the ordinary man to comprehend and we can therefore dispense with a jury for these. (This rather reminds me of one of the arguments of Remainers that ordinary people were too dim to understand the referendum issues) When I hear this sort of thing I always think of the time, some 30 years ago, when I did jury duty. The judge at one of the trials seemed to have been old enough to have known Queen Victoria. He was an amiable old buffer, but his age meant that it was the judge, not the jury, which had extraordinary difficulty in following what was going on in the case.

    The jury system is an important defence against the political trial and we should never allow it to be watered down.

  51. Denis Cooper
    Posted November 7, 2016 at 2:54 pm | Permalink

    I hope I’ll be allowed to rescue this from moderation limbo on an earlier thread:

    The point at issue now turns not upon any statements made or literature distributed by either of the official campaigns, or any other non-governmental participants in the campaign, but upon the official government leaflet bearing the Royal Crest and the words “HM Government” which was addressed to the electors and delivered to every household:

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515068/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk.pdf

    It is one thing for judges to say we should place no reliance upon the election manifestos published by political parties, which cannot create any “legitimate expectation”:

    http://news.bbc.co.uk/1/hi/uk_politics/7233175.stm

    And arguably it is a very similar thing to say that we should place no reliance on what any of the campaigners on either side said before the referendum.

    But when it is an official government communication, and it makes a crystal clear promise such as:

    “This is your decision. The government will implement what you decide.”

    then that is a very different matter.

    Effectively the so-called High Court of Justice has just told the population that they should not expect any “justice” if the government makes an official promise to them in writing – arguably without sufficient legal authority, but with the tacit consent of Parliament – and then breaks that promise.

    On which basis, if we get anything from the government in the future giving any kind of promise we might as well rip it up and throw it in the bin as worthless trash.

    Is that the kind of society, and system of government, the Remainiacs want? You know, the ones who say that this is an excellent court judgment because it means that we are not living in a banana republic?

    I suppose the thing to do is raise funds and sue, but then the question is “Who do we sue?” The name at the top of my list would be David William Donald Cameron, late Prime Minister and de facto leader of the Remain campaign, but more importantly the head of the government which issued that leaflet including that promise.

  52. Mick
    Posted November 7, 2016 at 3:25 pm | Permalink

    Off topic a little, but is it right that your government are going to make people on ESA in the support group to work like the wrag group

  53. Dennis
    Posted November 7, 2016 at 4:23 pm | Permalink

    It has been stated elsewhere that ‘…. both in the Parliamentary Debates about the legislation & the legislation itself did NOT mandate that a vote would result in an action. It is important to understand that there have been two recent other referendums (one on proportional representation and the other on Scottish Independence where the legislation DID mandate actions in the event of a vote for proportional representation or for Scottish Independence.

    That was omitted, and not by accident, in this referendum. SO we have to distinguish between what people believed and why and what is factually the case.

  54. Dennis
    Posted November 7, 2016 at 4:25 pm | Permalink

    Another quote –

    “It certainly is plain in the European Referendum Act 2015 that it was not binding – so you have been misled – it concerns me that some many people think it was. Just another example of the appalling levels of disinformation around this.

    And if those same sources were wrong about basic things like whether the referendum is binding or not and how to operate Article 50 what else have they been wrong about?

    This whole shebang has uncovered levels of incompetence in the British Government, the UK media and the British political class I never dreamed of.”

    • Denis Cooper
      Posted November 8, 2016 at 12:04 pm | Permalink

      The greatest incompetence has been on the part of parliamentarians, not excluding those who are also in government.

  55. stred
    Posted November 7, 2016 at 4:26 pm | Permalink

    Last week you allowed a link to a speech given by Lord Kerr in which he advised on how judges should use their own ‘conscience’ when deciding matters, as I understand, rather than simply following previous law. In other words the should make law, especially when rights are involved. I wrongly assumed this Lord Kerr was the one who runs Bilderburger meetings, the Lords committee on brexit, ex civil servant and author of Article 50. Unfortunately, this Lord Kerr is on the Supreme Court and not the committee. Sorry for the confusion your Lordships. There are just too many making law or finding previous reasons to make a judgement to keep up.

    Let’s hope conscience is the deciding matter when they meet on A50 and not finding stuff previously put out by the Commons library, which the MPs which need tovote about A50 did not manage to read or understand. Perhaps the views of those little people, who read the government leaflet and listened carefully to the arguments, could be considered, if you conciences permit.

    https://www.supremecourt.uk/docs/speech-121008.pdf

    • stred
      Posted November 7, 2016 at 4:29 pm | Permalink

      They should make law. -not the.
      Refer to page 21 of speech.

  56. Dennis
    Posted November 7, 2016 at 4:34 pm | Permalink

    Check that link out – it has some very interesting comments – read to the end.

  57. NA
    Posted November 7, 2016 at 5:26 pm | Permalink

    I read in the Times today that Russia (with a backward economy smaller than Italy).
    had developed a new state of the art tank a lot better than ours and the Americans. Its not good is it. Too many chiefs and not enough indians?

  58. Kevin
    Posted November 7, 2016 at 5:40 pm | Permalink

    On this subject, it may be worth comparing the following two extracts from The Guardian Web site (emphases added):

    1) “The Guardian view on Brexit ruling” (4th November 2016):
    “The rule of law is the bedrock of a democratic society. It can check corruption and abuses of power. It permits individuals to order their lives…. If the rule of law is to be upheld, it is vital that there should be an independent judiciary. This fact appears lost on Brexiter rabble-rousers.

    2) Guardian Leader (11th December 2000):
    The supreme court makes an ass of itself
    “The decision of the US supreme court to halt the Florida recounts is wrong in law, wrong in respect of the constitution, and wrong in terms of plain common sense….
    Reckless of the constitutional and practical implications, it also ignored the certainty that its ruling will be widely seen as reactionary and partisan, as have so many of its actions during the tenure of Chief Justice William Rehnquist. Worst of all, it turned a blind eye to the obvious. In elections, all votes must count and be counted. The court meets today. It still has time to reverse itself and let the Florida counting resume. It should do so without delay.”

    No comment is necessary.

    • Denis Cooper
      Posted November 8, 2016 at 11:46 am | Permalink

      Excellent comment, well researched and well worth saving.

    • acorn
      Posted November 8, 2016 at 4:22 pm | Permalink

      The US Supreme Court is made up of political appointees. Congress is trying to stop Obama from appointing his choice to that Court. The Republicans want the choice made by the Next President, in the hope that he will be a Republican President.

      You obviously do not understand that the US Supreme Court, is actually separate from the UK Supreme Court, otherwise you would not have made such an idiotic comparison between the two.

      • Kevin
        Posted November 8, 2016 at 7:13 pm | Permalink

        Nice try.

        It was the content of the judgment that The Guardian was objecting to, not the system of judicial appointment.

  59. Prigger
    Posted November 7, 2016 at 6:09 pm | Permalink

    David Davis the Brexit Minister was very patient today in Parliament. Your question was very good and to the point JR
    http://www.bbc.co.uk/iplayer/live/bbcparliament

    Facial expressions of mischievousness from Mr Miliband ( Ex-Labour Party Leader )and Mr Clegg (Ex-LibDem Leader ) seemed to express a flashback to their schooldays.Perhaps happy sunny days being swung on swing really really high by nanny.
    If these discussions were done in a proper business manner, the Chair of the assemblage would caution them not to waste the time of all concerned and inform them directly that future misbehaviour would lead to their temporary suspension. Though the same could be said of the other contributors.Nothing new emerged. Mr Davis nor Parliament is responsible for racial attacks, verbal) on anyone outside Parliament nor what is or is not said in any given newspaper. Mr Davis was very charitable indeed in even accepting their questions. There are departments of the police force and dedicated solicitors who can take up such alleged racist attacks and Press Complaints. A proper Chair of a Parliament Meeting would have cut the questioner’s microphones off and told them to keep to the point in future questions or lose the right to question for a period not exceeding 6 months.
    Why does the government wish the negotiations to be kept away from Parliament? Because none of us has 1000 years of life to wait to see Brexit. In fact we would probably die of Remainder-boredom-syndrome well before then

    • stred
      Posted November 8, 2016 at 8:58 am | Permalink

      The link shows some Lords going on about Wales. And another good reason for cutting their allowances and numbers. Or preferably replacing it with a Senate of non political experts elected for 5 years half way through a GE.

  60. darren welch
    Posted November 7, 2016 at 6:14 pm | Permalink

    most people respect the law and the independence of judiciary,,however i think the selection process of judges in decision making on certain issues must not show a conflict of intrest,,which seems to have occured here ….. if what i have read is accurate,,,to inspire confidence there must be neutrality

  61. Ramona
    Posted November 7, 2016 at 7:01 pm | Permalink

    Threats to a slowing of Brexit or even a blockage or a change to it in substance is a wonderfully glittering early Christmas present for the more unseemly elements of the political spectrum.

    In my opinion, what WAS considered and LATER considered a very nasty regime, is given birth by caesarean section by the likes of the Remoaners. If you carefully look past all the rhetoric of “extremism”; “radicalism”; “fundamentalism “; “marxist-Leninism” and even “nazism” you will find moaning and and yelling like an unmilked cow a Remoaner stereotype. They are the blockage in the U-bend of politics causing such intense pain. Their only redeeming factor is that their disappearance creates such a relief and brings a smile to ones countenance better than that by a Corbynista regularly reading poetry to a Pine tree

  62. acorn
    Posted November 7, 2016 at 7:25 pm | Permalink

    For those that listened to the HoC debate this pm on Brexit, you will have witnessed the massive imbalance that is endemic in our two centuries out of date democracy. The Minister for Brexit, has the whole Civil Service writing his script. Every other MP has no more idea of what is going on than you, me, or next door’s dog. You can understand why Lord Hailsham coined the term “elective dictatorship” back in 1976.

    I have come to the conclusion, having data mined and number crunched gigabytes of data for others; that UK citizens, will not regain their current standard of living, once outside of the EU, for at least two parliaments, possibly three.

    Understand that the mission of my tribe, is to abolish the deadly virus of laissez faire neo-liberal conservative governments for the 1%, that have infected the world, since the late nineteen seventies.

    • Denis Cooper
      Posted November 8, 2016 at 11:43 am | Permalink

      Your conclusion defies all common sense.

      • acorn
        Posted November 8, 2016 at 3:41 pm | Permalink

        Sorry Denis, I managed to post three random paragraphs, that I had extracted from posts to other sites. I didn’t check after I hit “post comment”; busy day.

        BTW. Household debt went through the £1,500.000,000,000 barrier this week, lots of number crunching going on. I surmise that the EU will be trying to find a rule somewhere, that the UK has broken. All the best.

  63. Margaret
    Posted November 7, 2016 at 7:38 pm | Permalink

    As usual the right honourable gentleman for Wokingham delivered his argument on Exiting the EU and Workers rights with civility and good sense. Many others in the house did not. I was amazed that your friend and lady conservative member on the back bench saw fit to attack you personally during this speech . Surely it does not matter whose territory voted for what as the house was dealing with the majority not one upmanship.

    I found Mr Clive Lewis aggressive ( and as I am not in the house , I can refer to him by name) and misinformed . In the 1990’s the NHS and its workers began a downhill slide . Under labour workers rights were demolished and British peoples rights were ignored.

  64. S. Ian
    Posted November 7, 2016 at 8:30 pm | Permalink

    The judiciary were subjected to a vicious, personal attack in the right-wing press using the same language employed by the authoritarian thugs the world over, and this is the best you can come up with?

    God help the United Kingdom if this is the direction Brexit is taking it in.

  65. Adam
    Posted November 7, 2016 at 9:16 pm | Permalink

    Quoting:
    Ms Miller added that the challenge was about more than Brexit.
    “This case is far more fundamental than that. It is about any government, any prime minister, in the future being able to take away people’s rights without consulting Parliament.
    “We cannot have a democracy like that. That isn’t a democracy, that is verging on dictatorship

    Please anybody angry at the decision, how is the woman wrong in any way?

    • Iain Moore
      Posted November 7, 2016 at 10:45 pm | Permalink

      Because our whole EU entanglement has been achieved by the Executive using the Royal Prerogative, for the establishment to change the rules when we want less EU is pretty outrageous.

      And as for these ‘rights’ we lose, well these were like not being able to elected MEPs. or not being able to use the European Court. You know what I think these were covered by the referendum vote.

    • AmajorityofOne
      Posted November 8, 2016 at 3:51 am | Permalink

      Because, amongst other things,most people do not know how to and cannot afford to use their “legal-ballot” as it were by way of Court action and so inflicting their own personal opinion on the will of 65 million people living in the UK.

    • stred
      Posted November 8, 2016 at 9:10 am | Permalink

      Because in the referendum, the majority voted to dispense with EU rights and put them into British law, then amend them as our own elected parliament sees fit. Something which Mrs Miller and the legal establishment seem to ignore.

    • Denis Cooper
      Posted November 8, 2016 at 11:40 am | Permalink

      Parliament was consulted, and if parliamentarians had ever felt that the consultation was inadequate or it was taking the wrong form then they could have objected and demanded that the government changed course, BEFORE we the people were all asked to vote on the clear understanding that the result of the referendum would be binding and our decision would be implemented by the government.

      Parliamentarians had multiple opportunities to assert a claim to control the service of an Article 50 notice, arguably over a period of 13 years since that provision first appeared in the EU Constitution, but never bothered to do so.

  66. anon
    Posted November 7, 2016 at 9:42 pm | Permalink

    To gain respect you must earn it , respect democracy and the sovereignty of the people, even if this creates tension with parliament.

    I think the judiciary generally have been very supportive of the EU drive to one superstate. They do not appear to have not considered wider issues of sovereignty in the past accepting that parliament was the only and final arbiter versus the potentially unknown view of the people.

    Now that they are aware they seem to ignore it, for the purpose of the judgement.

    No doubt the ignored bits will be considered outside of the court, and also outside of parliament.

    We have a deficit in our parliament and upper house in that it does not faithfully represent the views of the public, it at best is remote & manages them in conjunction with other (EU) interests.

    We need more binding direct democracy, legally imposed on parliament where this is stated. We need recall powers that should be triggered automatically in circumstance such as we forsee in the future.

    We need the Supreme Court to articulate and take into account the expressed will of the people. It should rule the referendum is legally binding or get out of the way.

    Why is it all referendums regarding the EU have yet failed to deliver an exit ?

    Maybe because they and we are not democratic?

  67. Amanda
    Posted November 7, 2016 at 10:20 pm | Permalink

    When I consider that a judgement has been given in good faith, then I will accept it. It is up to the judges to prove that is the case – and they are NOT above criticism. Too many times in my lifetime have I seen major judgements overturned; and there is many a case won on apeal. Their ‘Judgeships’ have not studied Solomon too carefully, and are now rightly [in my opinion] held in contempt by the majority of the population. It seems to me that no one has been served well; not the country, not the majority who voted to leave the EU, and not the Remainers who are trying to circumvent democracy and will find that hope was the last evil out of Pandora’s box- for, we will leave the EU.

  68. Posted November 8, 2016 at 12:31 am | Permalink

    I see that BBC website is reporting that the aptly named Lord Judge, the former Lord Chief Justice, has said on Newsnight that, should the Government win its appeal in the Supreme Court, justice would be undermined because the decision would be seen as a victory for protesters.

    Judges cannot have it both ways. I believe that the three Judges in the case were perfectly entitled to come to the decision they did and that they did so impartially.
    The Government and others are equally entitled to suggest that their interpretation of the law was wrong, to wish to see a different outcome and then to refer the matter to the Supreme Court.

    However, if the Judiciary is genuinely independent and above the influence of public opinion, Lord Judge cannot come out and say that a considered and properly arrived at Supreme Court ruling can in any way undermine the Law.

    Either the three justices were right in law or they were wrong.

    As the highest independent court in the land, only the eleven judges of the Supreme Court can make the final decision on this matter and the outcome of the appeal must then be respected by everyone without argument or challenge.

    If the Appeal is lost, it is then up to the Government to decide whether to place a bill before Parliament to make any change in the law that it sees as necessary and try to navigate the passage of their bill successfully through both Houses.

    That is how our democracy works, or it will be after we free ourselves from the overarching jurisdiction of the European Court.

  69. IntheBeginningwasthe
    Posted November 8, 2016 at 1:11 am | Permalink

    The first building block of UK democracy was placed on 23rd June 2016. On 24th June 2016 it was dislodged from its position and a note was scrawled in its place : “IOU Democracy”

  70. Stuart Beaker
    Posted November 8, 2016 at 1:43 am | Permalink

    I have yet to hear any comments on what, to me, is a very interesting feature of this court action: that it appears to model quite closely the kind of action that would have been (and may yet become) open to foreign companies, if TTIP or a similar agreement comes into force. Namely, that they will be eligible to take to court the government of any party to that agreement, if they feel that government has given preferential treatment to its own businesses as against those foreign corporations. I gather that the ‘level playing field’ enforced on members of the EU, within the EU, will be extended to every participant in that trade agreement. In that case, two questions arise for the UK following Brexit: will it be bound by TTIP, or any other such deals entered into by the EU, after it leaves the EU? and, if it contemplates entering into such deals independently, after it leaves the EU, which seem as restrictive of its sovereignty as membership of the EU itself, will there be a direct (and binding, this time) plebiscite on the deal, as affecting issues of sovereignty and our dispensation of national governance?

  71. So nice
    Posted November 8, 2016 at 1:45 am | Permalink

    It would be so nice , and bring tears to the hardest heart,if the Supreme Court Judges were to uphold the Royal Prerogative and HM The Queen were to specially appear on Television on every network and say ” I hereby trigger Article 50 “

  72. HandofGod
    Posted November 8, 2016 at 4:08 am | Permalink

    If Brexit is thwarted then it’s pretty pointless holding any other referendum or election. No one is going to waste their time voting, except the immediate friends and families of existing politicians. Turnouts will be 0.1% with the one with the largest number of children over 18 years of age becoming Lord Protector. Politicians will have an interesting and productive time trying to out do him.

  73. TrueBrit
    Posted November 8, 2016 at 4:27 am | Permalink

    Just realised just one vote by an illegal Mexican immigrant in the swing-state of Florida could determine the next President of the USA and the Free World. I bet Nick Clegg is winging his way there as I write. As for me, I’m on the next flight. Adiós a todos (Latinos por Trump )

  74. Posted November 8, 2016 at 1:40 pm | Permalink

    I was heartened by the debate yesterday – Even Soubry made several positive contributions for once and she confirmed that she would vote for Article 50 as this was the wish of 70% of her constituents. Other Labour members, including H. Benn, also confirmed they would support the declaration without any qualification.

    If Benn really does speak for the Labour Party on this subject ( and that is by no means certain in the Corbyn era !) he clearly stated that a vote to declare Article 50 and their desire to know the terms of the negotiating strategy were separate issues and would not be linked in any way.

    It therefore seems there is now a clear majority for a simple vote on Article 50.

    I can see nothing to stop the Government seizing the moment now to bring forward a simple vote on A50. It would not have to be implemented immediately but our leaving would then be a certainty from whatever date Mrs May decides to inform Brussels.

    We would still face opposition from the LibDems in the Lords but, given the outcome of the referendum and an overwhelming vote in the Commons from both sides of the House, I doubt whether they will be brave enough to try and interfere.

    The merest hint of an extra 150 Brexit supporters being placed in the Lords should be enough to see it through.

    I can think of no reason why this should not be announced and voted on this week before the house rises.

  • About John Redwood


    John Redwood won a free place at Kent College, Canterbury, He graduated from Magdalen College Oxford, has a DPhil and is a fellow of All Souls College. A businessman by background, he has been a director of NM Rothschild merchant bank and chairman of a quoted industrial PLC.

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