This was a most unfortunate case. It is curious that it was considered at all in the High Court of Justice in England. The matter before the Court was clearly a UK wide matter, yet it was considered by an English Court. If ever an issue was designed to be handled by the High Court of Parliament rather than by some lesser court, this was that issue.
In the past Courts have been rightly wary of presuming to tell Parliament what it should and should not do. Of course courts need to be vigilant and active over possible abuses of power by government. It is not, however, their job to tell Parliament what it should debate and what it should vote on . It would not be practical each week to agree our agenda with what the Judges wanted us to do.
As the judges wished to trespass into this territory they should have acquainted themselves better with Parliamentary procedure and the recent Parliamentary timetable. They would have discovered that Parliament has had plenty of allotted time for debate and questions on Article 50 and general Brexit in both government and Opposition time. They would have realised that if the Commons wanted a vote on Article 50 the Opposition could at any time table a motion to require one in Opposition time. It could formally ask the government to table one, though the government might reply they should table one themselves. The fact it has not done so implies that the Commons accepts an Article 50 letter will be sent. Indeed, many Labour MPs have confirmed they agree with sending a letter, as does the government side.
It would also have been wise if the judges had read the leaflet sent to every household by government at taxpayers expense with Parliament’s approval stating clearly the people were making the decision to leave or remain. They could also have read the many Hansard references stating the people will make the decision in the referendum. This was not an advisory referendum in any normal sense of that word. They could also have consulted the official literature of the two referendum campaigns and seen that one of the few things they agreed on was the people were to make the decision. The reason Remain rhetoric was so hyped about the dangers of leaving was their recognition that the people might make the wrong choice in their view. The vote of the people should be more powerful than the views of three judges.
The other main argument the judges used was the bizarre idea that prerogative powers of Ministers can never be used to change UK law. What do they think has been happening for the 44 years of our membership of the EU? Time after time Ministers have consented to an EU law under prerogative powers which directly changes UK law. Why did they approve and encourage this process, and then turn round when we wish to use the same method to restore UK Parliamentary control and say it cannot be done? Given that this is to implement a decision by the people, surely that puts in much better order than all those times neither people nor Parliament were asked to decide on changes of their laws thanks to Brussels.
In sum, the Commons agrees to an Article 50 letter, so let’s get on with it. I just hope the Supreme Court has wiser views than the High Court of England.
November 8, 2016
Past article 50 and assuming that it has been invoked , is it not difficult to take in all EU workers rights laws , gel them with UK laws and have the power to change one set of laws and not another , or is it rather the principles which will be taken on and not the law.
November 9, 2016
The laws, wherever practicable.
November 8, 2016
Another very good piece Mr Redwood. We agree with your refrain ‘let’s just get on with it’, whether that’s by the motion you proposed a few days ago or the draft Bill we published here: http://facts4eu.org/news_nov_2016.shtml#proposed_bill_art_5
On a lighter note, one of our pieces this morning may your readers’ minds off legal matters:
http://facts4eu.org/news_nov_2016.shtml#remaineritis_a_doctor_writes
November 8, 2016
Yes, it only needs a very short Bill like that, contrary to what is being stated or implied in some parts of the mass media it does not need the projected “Great Repeal Bill” to simply affirm that the government has parliamentary authority to formally tell the EU that we intend to leave so that the exit negotiations can commence.
November 8, 2016
That’s very amusing …
“These symptoms are the most common side effects of prolonged EU membership. In many people this was further exacerbated by exposure to the Osbo-Camorageddon virus, of which there was a serious outbreak during the Referendum campaign.”
November 8, 2016
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
This is the pamphlet that the government spent 9 million on and was delivered to every address, so I think these remoaners and the courts should check out page 8 it’s there in bold print about the single market and most of the pamphlet goes on about the single market, so I don’t think the remoaners can say that the public didn’t have the FACTS
November 8, 2016
Sorry I no longer have my copy having sent it back to central office with the word very similar to BULLSHOT ( a nice beverage by the way) written across it in thick black marker pen.
November 9, 2016
It’s on the internet, and MPs were told that it was on the internet before the hardcopy distribution started, and they still had the opportunity to say:
“Whoa, what’s this, you can’t say:
“This is your decision. The Government will implement what you decide.”
Because we all know this is only an advisory referendum – that’s what the House of Commons Library said – so we in Parliament will make the final decision on whether to implement the result , not you in government.”
But they didn’t object, and they didn’t threaten to vote against the resolution to set the date of the referendum unless the leaflet was changed to make it clear to the voters that this was only an advisory referendum, and nor did the Lords afterwards when it was their turn to pass the resolution.
November 8, 2016
I didn’t even bother to read the government propaganda leaflet. Just put it back in the post as “Return to Sender.” A total waste of my taxes. If anything turned me against Cameron it was this, and then it got steadily worse. I thought that, for a politician, he was an “honest and decent man.” How wrong I was. Just a coward with his own agenda.
Had Cameron been honest and given a balanced view, instead of Project Feat he may have won. The Scots were stupid enough to fall for it in their referendum; happily we English aren’t so gullible.
November 8, 2016
[The judges] should have acquainted themselves better with … It would also have been wise if the judges had read …
Was it not the role of the government’s barristers to present these facts to the court as part of their argument?
November 8, 2016
Exactly right.
We shall see if the Supreme Court has more wisdom on this issue.
But if they do reverse the decision what then, the absurdity of an appeal to the ECJ?
What a mess governments from Heath’s through to Cameron’s have left behind them.
November 8, 2016
Good morning.
I do sincerly hope that ‘this time’ the government has leart its lesson and has a Plan B in case it loses – Again !
The matter debated in court was not to tell what could or could not be said of done. What was judged on was whether or not it was constitutional for the PM to invoke Art.50 before debating it will parliament. It is part of Art.50 that a member country can leave the EU inacccordance with its own constitutional requirements.
Not long ago our kind host thought that meant we could simply repeal the 1975 ECA.
When it comes to changes, and especially constitutional changes, one of the biggest was the Maastrict Treaty that created the EU and, for me sorst of all, the EU Citizen. Now I was never told or asked if I or my Queen would like to be known as that.
Reply I also said send a letter and provided a suitable draft!
November 8, 2016
Yes Mark B is right and JR won’t admit he is wrong.
November 9, 2016
He was allowed to change his mind, and he did.
November 8, 2016
I read the appeal to the Supreme Court will not be heard until January. Is this really the case?
November 8, 2016
No, I think it is scheduled for 5/6/7 December. However the judgment may not be handed down until the New Year rather than before Christmas.
November 8, 2016
M’learned friend is most obliging and handsome.
I see that, in direct response to Mr Redwood’s first paragraph, the wild Scots have now woken up and are harrying the border with their legal mosstroopers. Mrs May’s problems multiply on every front. As Enoch Powell said of another female Prime Minister when her problems grew particularly acute, “They call her the Iron Lady. We are about to see what metal she is really made of.”
November 8, 2016
http://www.telegraph.co.uk/news/2016/11/08/government-given-go-ahead-to-challenge-brexit-ruling/
5/6/7/8 December
November 8, 2016
“In sum, the Commons agrees to an Article 50 letter”
Then why not have a vote on it in the Commons today?
November 8, 2016
PvL – I take it you did read today’s post.
The HC judges have basically annulled the referendum. If it wasn’t binding then why didn’t we just do it by petition instead of a vastly expensive process ?
The danger is that the vote would be an acceptance that the referendum is void and there is a risk that the Commons could stop Brexit. The Lords certainly.
The EU has won 6 out of 8 of the referenda it has lost (if you know what I mean) the other two were draws.
November 8, 2016
That’s what I thought, but it seems that for some reason PM May wants to dither and delay for another 2 months before anything is considered and she is still sticking to end of March as though that is some kind of speedy action. No real explanation has been offered. If she was to say she could not get her case organised for 9 months then at least we would know. All the time we are chucking 220 million a week down the EU tubes. There is no reason to wait for the Supreme Court or spend more money on it. This thing is getting more suspicious by the day. Soft Brexit is becoming more and more likely.
November 9, 2016
May the Cunctator will be her name….
zorro
November 8, 2016
Why are you so interested in UK affairs. I think Holland has enough of its own problems to worry about.
Brexit will happen because we voted fairly for it with a plethora of facts
November 8, 2016
Much if not most of my family are British, living in the UK.
November 8, 2016
Indeed, it would be better than all this nonsense about judges being ‘enemies of the people’
November 8, 2016
Peter
“Why not vote on it today”
Far too simple solution for our Politicians, and I guess those in the EU and elsewhere as well.
November 8, 2016
I take on board all of you comments John, but what were the governments lawyers arguing for, what was their case, why did they not present all of the arguments you suggest.
Sorry, either your governments legal representatives were useless and did not pick up on the points you make, or other factors came into play which you have not mentioned.
The worrying alternative is of course that the Judges did not understand the arguments, or chose to come to a different conclusion to which the evidence should have led them.
What a bloody shambles.
November 8, 2016
A shambles because there are great forces ranged against Brexit. One way is to throw up technical problems. The other is to nullify the
Chief among their complaints is that the Leave campaign lied and a file has been lodged with the CPS in which allegations of criminality, including the campaign bus, have been outlined.
In fact the biggest lie was so big that no-one could see it. It is this:
Remaining in the EU is not the status quo. It is the abolition of Britain by freedom of movement and loss of sovereignty to Brussels.
Also thatthe EU is determined to have equality for its peoples and intends to do so through fiscal union – which means British people will have to get used to getting poorer owing to the low general standard of living across many EU states.
November 8, 2016
Should read “The other is to nullify the Leave arguments”
November 8, 2016
Indeed a shambolic mess left by “I will serve the section 50 notice the next day and stay on as PM even if the country votes Brexit” Cameron.
Shambolic messes too at the treasury, with the psbr, and the absurd tax system too. Yet Osborne has not even had the decency to resign.
November 8, 2016
Probably their lawyers are not up to it. The CPS is made up of second raters.
November 8, 2016
John thanks for this. Notwithstanding your analysis, I think I and many others would like to know why the Referendum Bill was passed without a clause saying the result would be binding on the Government. I believe the AV Referendum was binding (wasn’t it?), do you remember any Commons debate on the EU Referendum bill that led to its default status of being advisory as it looks suspiciously as though the glut of Remain-minded MPs were happy to let this point go without debate, knowing they’d have a chance to derail Brexit if we voted to leave.
November 8, 2016
When the relevant state papers are made public in thirty plus years those of us who are still around may find out whether that serious omission from the Act was part of a contingency plan to keep us in the EU even if we voted to leave.
November 8, 2016
The briefing paper to MPs on the Referendum Bill/Act making absolutely clear that the Referendum was of the “consultative” variety – ie advisory – is available in the House of Commons Library and on the internet. No need to wait 30 years.
November 9, 2016
Unlike most parliamentarians, I suspect, I actually read that report at the time and I did not agree with that part of it, given what the government and also leading opposition politicians were saying without any noticeable demur from parliamentarians. It was the view of a young research clerk in the House of Commons Library, you can see her name on the report and if you wish you can look her up as I did. As I repeatedly pointed out over a three year period, like its three predecessors the Bill did not say on its face what would ensue from a vote to leave the EU, and that was a serious flaw in its drafting, but every parliamentarian had multiple opportunities to challenge the government over that and demand clarification and a suitable amendment of the Bill but none did so.
The state papers to which I refer are those of the cabinet and other government bodies which might reveal whether that flaw in the drafting of the Bills was deliberate and if so why it was done.
November 8, 2016
Indeed and the remainers who wanted to kill UK democracy still think they know best and are still trying to do so.
November 8, 2016
JR has no reply to this.
November 8, 2016
A number of inaccuracies:
1) The Government accepted that the High Court of England and Wales had jurisdiction to hear the case. It did not appear to argue that only Parliament (or the Supreme Court, which does consider case from the whole of the United Kingdom and indeed some commonwealth countries) could consider the matter. If there is objection that the Government submitted to the jurisdiction of the court, this should be raised with Ministers in the House.
2) Legitimate expectation was raised in the skeleton argument submitted on behalf of the Government. However, that argument appears to have fallen by the wayside when it was conceded on behalf of the Government that as a matter of law the referendum vote was advisory only. Again, if there is a problem with this, it would appear to be a matter to be raised in the House. Why was that concussion made? One would have thought that given the manifesto commitment to hold and in/our referendum, authority having been given by Parliament for that referendum to be held on the clear understanding during the course of the debates that the vote would be given effect to and the campaigns having been clearly conducted on that basis, no more authority was required for the Prime Minister to give notice under Article 50. The problem the Government is going to have on appeal is that, unless the Supreme Court allows the matter to be re-opened, the appeal will proceed on the basis that the result is in law advisory only.
Meanwhile, Mr Starmer – provided with numerous platforms by the ever willing BBC to expound at length – is artfully conflating the outcome of the negotiations, which no one can know in advance, with democratic control of the type of Brexit we apparently want.
Notwithstanding the blandishments of the Leave campaigners prior to the vote, I suspect that that matter is beyond our control. Unless the EU and we both recognise that for us the “Project” was only ever about trade, whereas for them it was always and remains about the political union of the states of Europe to form the United States of Europe, and therefore that allowing us to continue to trade and have access on the single market on the present terms is acceptable because of that fundamental difference of view, which, after all, lay behind our various opt outs, the only deal that they will agree to will be one designed to discourage any other state from leaving. They are clearly prepared to stick at the freedom of movement issue, which is the the single issue which most influenced the result of the vote. In other words, we both appear to have the same red line; therefore, no deal.
November 8, 2016
Fine.
But politicians still have a duty to condemn the way some of the press responded to the judiciary. A response that was vitriolic in its undermining of our judiciary and which undermines the whole notion of what it means to be British.
November 8, 2016
They’ve done that, now they can get back to more important matters.
November 8, 2016
‘Theyâve done that, now they can get back to more important matters’
– The judiciary is important. The office they represent deserves more respect (whether we agree with them or not). If politicians want people to respect them more, then they need to defend the judiciary on this (not through legislation but through publicly condemning such newspaper reports).
November 9, 2016
Democracy and proper rule of law are even more important.
A judiciary that fairly upholds the law and were seen to do so would maintain respect, but if they bring themselves in to disrepute they are as open to criticism as anyone.
November 9, 2016
They’ve done that.
November 8, 2016
The Judges thoroughly deserved it, Ed.
November 8, 2016
‘The Judges thoroughly deserved it, Ed’
– You don’t get it thought. It’s not about the individuals but the office of the judiciary.
Ditto the Queen as an individual versus the Queen representing the Crown.
Ditto a soldier as an individual versus the rank he holds in the British army.
Anyone who insults the British army, the crown or the judiciary insults their own country (and weakens it). A true patriotic Conservative would know that. But true patriotic Conservatism seems to be vanishing (and connected to this the sense of public duty), and instead a vulgar type of Conservatism is taking its place.
November 9, 2016
Yes. Sadly things have changed in this country. We tried to give warnings in measured ways over many years but they were ignored.
It seems things have changed in America too – Trump is winning at the moment. For similar reasons to Brexit.
November 9, 2016
We are perfectly entitled to question decisions of the courts and try to get them over turned.
We still support the rule of law.
Similarly I do not have to support every daft utterance people like Prince Charles makes.
You say “Anyone who insults the British army, the crown or the judiciary insults their own country (and weakens it)”. Not at all if the decision are daft, they point this out and try to overturn them they are strengthening it.
November 9, 2016
‘We are perfectly entitled to question decisions of the courts and try to get them over turned’
– You MUST question the decisions of the courts (if that’s what you think) …
I said you mustn’t insult them in the process. To insult them is to insult your country and to undermine the judiciary in general. The Mail and Express’ response to the judiciary was indefensible.
November 9, 2016
Your thinking is not so much conservative as ancien regime in nature.
November 8, 2016
The ground beneath my feet ever so slightly shifted t’other day, let us pray, hope that this is not a precursor for a greater magnitude upheaval to come.
I greatly fear that, reading the seismographics……………. does not fill me with any great optimism.
November 8, 2016
I know little of Parliamentary procedures but I would have thought that the government giving this subject 2 hours’ debate followed by a binding vote would make the problem go away or bring it to a head such that a general election is necessary.
The only reason for not doing so must be the fear that UKIP or other single issue parties will take advantage in Labour’s strongholds if Labour MPs vote against article 50.
Lance the boil and vote please.
November 8, 2016
You’re nullifying the referendum.
November 8, 2016
No I do not believe I am. Dennis Cooper stated several times on here before the vote that it was only advisory. I would like to see which MPs take our advice.
If sufficient MPs do vote to stay in to require a general election then I really believe we will see sufficient groundswell against the current system to force a change and still get out of the single / internal market.
The judges have pronounced, it is unlikely a higher court will reverse that decision on appeal so let’s take the next step quickly without giving prolonged debate. Vote and get it done with, no amendments offered. Should the UK serve article 50 notice on the EU in March? A simple question on which to vote.
We could leave the EU on our terms and get an English parliament in the next parliamentary term if we let the chips ride.
November 9, 2016
Ask the average person who Denis Cooper is.
November 9, 2016
You can not claim voters were fully informed with one hand and then claim they were hoodwinked on the other.
The voters are not, contrary to the new wisdom in UK and USA, stupid.
November 9, 2016
There is somebody much more famous with my name, albeit he spells it incorrectly.
November 8, 2016
I will revolt if Brexit is stopped and democracy dies.
Thoughts judges are remoaners and unjust in there judgement.
This is why I voted to leave the Eu undemocratic, moneypit, hell hole.
Now we have undemocratic Mps and judges.
November 8, 2016
I will revolt too. The London establishment may consider me stupid and racist because I live outside the M25, but I will happily take a train (without claiming the expenses they would) to show my anger.
November 9, 2016
Rioting doesn’t work unless the establishment wants it to. I cite the anti Iraq war march and the Countryside Alliance – both massive but ineffective.
Mass refusal to pay the BBC licence fee however…
November 8, 2016
Legal precedent makes it clear [says Banseka Kayembe Law graduate] that âit is for Parliament, not the executive to repeal legislation. The constitutional history of the country is…the powers of the crown being made subject to the overriding powers of the democratically elected legislature as the sovereign bodyâ.
It is also made clear that the mechanism that the government is trying to use to trigger Article 50 without Parliament only works âon an international planeâ that will have no effect on domestic law. The European Communities Act was brought into domestic law by Parliament and must be repealed by Parliament too.
There is nothing in the judgement about the judgesâ personal, political opinions. There is a clear legal logic that can be followed as to how they came to their decision. The accusations of bias are completely unfounded. The Brexit press want to have Parliamentary sovereignty, but only when it suits their agenda.
So there we have it. Donât be swayed by the toxic mind-set of the elitist British press. The irony in all of this is that the Express, the Daily Mail and The Sun wanted you to believe they are the champions of Parliamentary sovereignty. They wanted British laws, in British courts implemented by British judges. And thatâs exactly what theyâve got.
November 8, 2016
The central debate is about the interpretation of the 2015 referendum Act, and in my opinion as a layman the judges have erred in their interpretation. If it is deemed that MPs and peers must have been aware that the government intended to treat the result as binding, so in the event of a vote to leave the EU it would take the necessary action without coming back to Parliament for its further consent, and they accepted that and did not object to the government’s intention, then it may be deemed that Parliament gave its consent through that 2015 Act even if it was tacit consent. On the other hand if it is deemed that during the passage of that Act MPs and peers believed that they were only approving an advisory referendum then it may be deemed that they have not yet given their consent to government action which will inevitably lead to vitiation of the 1972 European Communities Act.
In my view it is beyond any reasonable belief that many parliamentarians in either House genuinely thought they were being asked to approve a referendum which would have no more than an advisory effect, and yet they did not object and make the government change its course even though they had the power to do that.
November 8, 2016
Acorn, in our democracy from where do you think Parliament derives its authority? As a matter of principle which takes precedence – the electorate’s vote or Parliament’s? If you are right then vote at a general election has no authority and we have lost our democracy.
What we have got is: the EU takes precedence over the UK Parliament, and Parliament takes precedence over the people. What we want is the exact reverse; and we voted for it.
November 8, 2016
Acorn is right.
November 9, 2016
Acorn is wrong here:
“The Brexit press want to have Parliamentary sovereignty, but only when it suits their agenda.”
We dislike Parliamentary sovereignty when it gives our sovereignty away. Gina Miller vomited when she heard the Brexit result. She knows how to get it stopped by giving the MPs a second vote on the issue and then debated in the Lords.
November 8, 2016
I was under the impression that Parliament, by a huge majority, agreed to allow the people to vote to remain or leave in the EU. The government then sent out a pamphlet stating that it would be the people’s decision and that the government would implement that decision. There was therefore no need to then ask Parliament if we could send the article 50 letter which is the next necessary step in the leaving process. There was also no mention of the vote only being advisory – and I doubt that many of the 33 million voters thought it was purely advisory.
The sending of the letter does not alter anyone’s legal rights. After negotiations have been completed, and to extricate us from the EU, Parliament will have to repeal the ECA so that the changes can be implemented. Therefore, no one’s rights will be affected without Parliamentary approval.
Finally, if the Royal Prerogative cannot be used in this case, after Parliament agreed the people should decide – which they duly did – how on earth have my rights been given away under various EU regulations and treaties without proper Parliamentary process?
November 8, 2016
Acorn
I’m afraid far greater legal minds disagree
https://inews.co.uk/opinion/government-won-case-article-50-heres-lost/
November 8, 2016
JR
I appreciate that you are not a lawyer, but I respectfully suggest you acquaint yourself with the law before writing ill-informed pieces. The following quotes are from wikipedia, but they represent the position quite well, in my opinion:
Pepper (Inspector of Taxes) v Hart [1992] UKHL 3, is a landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege.
The decision met with a mixed reception. While judges cautiously accepted the judgment, some legal academics argued that it violated rules of evidence, damaged the separation of powers between the executive and Parliament and caused additional expense in cases. The decision was subjected to an assault by Lord Steyn in his Hart Lecture, delivered on 16 May 2000 and titled “Pepper v Hart: A Re-examination”, in which he disputed exactly what the House of Lords had meant by their decision and also attacked the logic and legal theory behind it. Since Lord Steyn’s lecture, several judicial decisions have limited the use of Pepper by the courts; the result of these changes, according to Stefan Vogenauer, is that “the scope of Pepper v Hart has been reduced to such an extent that the ruling has almost become meaningless”.
That’s why the High Court judges didn’t refer to Hansard, or to the Government’s propaganda leaflets. It’s not that difficult to understand.
NB I voted for Brexit, and am as annoyed as anyone that the losers won’t accept the result. However, on our side we must remain accurate and rational.
Reply They instead referred to a Library note from House of Commons staff instead of on the words of the Foreign Secretary introducing the Bill!
November 8, 2016
To reply: Indeed no matter how independent you are trying to be you tend to be biases to how you would like things to be.
It can be similar with doctors, the fees and the relative number of cesarean birth felt needed, in the NHS or in the States private system. It depends on ones perspective.
November 8, 2016
JR -explain in detail this – it’s no good giving a reply which explains nothing to those uninformed of your point.
November 8, 2016
JR
Thank you for your reply. I assume you refer to these words at para 107 of the judgment:
“Furthermore, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only.”
I agree that the inclusion of those words – and that reasoning – in the judgment, was wrong. But the judgment still stands on its merits, without those words being critical to its logic. By the way, was such a briefing paper issued? Did MPs not seek to go further because of it? My prime annoyance remains with MPs who didn’t add a simple clause to say that the outcome of the referendum would be binding on the Government.
I stress again that I voted for – and remain committed to – Brexit.
November 9, 2016
Yes, it was issued in preparation for the Second Reading in the Commons:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212
On page 25 it said:
“This Bill requires a referendum to be held on the question of the UKâs
continued membership of the European Union (EU) before the end of
2017. It does not contain any requirement for the UK Government to
implement the results of the referendum, nor set a time limit by which a
vote to leave the EU should be implemented. Instead, this is a type of
referendum known as pre-legislative or consultative, which enables the
electorate to voice an opinion which then influences the Government in
its policy decisions, which enables the electorate to voice an opinion which then influences the Government in its policy decisions … ”
I read that at the time, June 2015, and thought that it did not match what the government was saying about the referendum. On the other hand unless they give sworn testimony there can be no certainty that even a single MP, or peer, ever read it, let alone believed it, and voted on the Bill on the understanding that the referendum would only be “pre-legislative or consultative”, merely advisory.
November 9, 2016
This was the time for a new legal precedent and interpretation then, Mark Hodgson.
November 10, 2016
Anonymous
You may be right. But the High Court did not have the legal right to overthrow precedent. Let’s hope the Supreme Court, with all 11 judges, feels able to be robust.
November 8, 2016
Very good summing up of the state of play John. I just hope the Supreme Court see things the same way.
November 8, 2016
I read your article with great interest and it has to be said a great amount of relief. I would ask you to send it to all the judges due to sit in the Supreme Court before they ruminate on this matter, as clearly the three judges at the High Court were in denial of these points. I would also ask you to post it to other daily newspapers to provide some succour to people who voted leave in the referendum and who have been might spooked of late with threats from the likes of Clegg, Farron, Milliband and Weatcroft
November 8, 2016
I reckon JR’s daily articles are very widely read in all circles, including perhaps by some of the senior judiciary, but probably few in exalted positions would admit to such!
November 8, 2016
The unjust basis of their ruling aside, where more EU was fine to achieve by Royal Prerogative, but not less, the details of the ruling were pretty odd as well, i.e the effects of enacting Article 50 , where even the EU Commission and none other than Lord Kerr ( who I believe designed Article 50) have said it does not put us onto a path to a guaranteed end, Lord Kerr saying : âYou can change your mind while the process is going on,â so enacting Article 50 doesn’t effect our rights, it just opens up the negotiations to leave.
As for the rights over which they are so concerned, well these they list as, not being able to elect MEPs, or not being able to refer matters to the European Court, I am sorry have they ascended so far up their ivory tower that they didn’t notice our referendum where the electorate happily decided to do away with those ‘rights’ . I am afraid the answer to that is yes, for they hardly made any reference to the Referendum in their judgement.
November 8, 2016
The problem with changing your mind after invoking Art.50, is that you automatically lose ALL your ‘Opt-outs’, including that from having to adopt the Euro.
Once Art.50 is invoked, whatever the cost or the hardship, we MUST see it through.
November 8, 2016
I have hard views on this issue and have spent time and thought in my previous reply . For some reason they have not been published . Am I missing some sort of trick ?
November 8, 2016
The judgement of the Courts is of importance because the House of Lords has the potential to frustrate a bill authorising the triggering of Article 50 . Reform of the H of L is the matter that needs addressing.
How about a Referendum on that?
November 8, 2016
Make sure it is not just advisory. I had a lot of time for the expertise of the “old” House of Lords before Blair went on his wrecking spree. Hereditary peers in the main had far more independence than the current cabal. How can it be right that there are only a handful of Lib Dem MPs but well over a hundred of them unelected in the Lords?
After a lifetime of rallying against it I am now of the opinion the the House of Lords needs replacing.
November 8, 2016
Indeed lets get on with it. Lets also get on with making use of all the many advantages of being out of the anti-business, anti-democratic, sclerotic, EU straight jacket. Things such as cheap reliable energy, freedom to trade round the world, lower simpler taxes, some real & nimble democracy, cutting the green crap subsidies, freedom in general, a huge bonfire of the damaging red tape and far smaller and more competent government.
Let us hope Hammond does not let us down in his autumn statement, and that May can be turned into real Tory. Despite all the evidence so far that she is just another lefty dope who even thinks there is a gender pay gap problem and we need government to fix wages and worker and customers on boards by law.
It even seems that some dopes in parliament think that merely pointing out that a judge is openly gay is “homophobic abuse”. No it is just a statement of known facts.
How did they work this out, what is remotely “abusive” about it? Who cares? It is the wisdom or otherwise of the judgement that is being questioned.
They accuse people of homophobia as they lack any valid arguments. Just as UKIP were endlessly accused of racism by remainers & the BBC. Such people probably helped them to the referendum victory.
November 8, 2016
The inconsistencies you demonstrate reveal that we do indeed live in the world imagined in Animal Farm. Some animals are more equal than others; the mass of the people do not count. I await the Supreme Court judgement with interest.
November 8, 2016
Whether the Supreme Court has other views remains to be seen ; I sincerely hope they do .The fact is a stall in the proceedings has now prevented what ought to have been a smooth process of presenting the letter . Article 50 ought to be ignored and we should simply “exit”. The subsequent negotiations of what sort of a deal we reach are going to be a drawn out affair ; time is of the essence .
November 8, 2016
Brilliant! Thank you
November 8, 2016
Am I the only one to find this years BBC Reith Lectures extremely tedious? Is this really the best the dumbed down BBC can come up with nowadays?
November 8, 2016
Some time ago, I was on holiday with a friend who was a barrister. There had been a series of bizarre judgements in the press at that time and I remarked that the law had been making a particularly impressive ass of itself lately. She explained that I was mistaking justice for law. The two are completely different.
Later we went to a restaurant where the owner had put an English translation on the menu. For ‘salade des avocats’ we could have ‘lawyer salad’. I thought how appropriate- (words left out ed).
November 8, 2016
But while the High Court judgment stands it will be necessary for both MPs and peers to pass an Act affirming that the government has parliamentary authority to serve the Article 50 notice. A resolution passed just by MPs would not be considered sufficient warrant by judges who have accepted the argument that an Act, ECA72, effectively bars the government from using Royal Prerogative to serve the notice, and nor would even a resolution passed by both Houses be enough.
It would need a new Act to overcome the bar created by the earlier Act, and moreover it would have to do that in express terms so that there could be no shadow of a doubt; otherwise, it would most likely be back to court with bad losers seeking an emergency injunction to stop the government serving the notice.
It need not be a long Act, because at this stage it not need do anything other than affirm that the government has parliamentary authority to serve the Article 50 notice so that negotiations can commence.
I recall that in July 2011 when she was Home Secretary Theresa May had a one page Bill rushed through both Houses and given Royal Assent within a week, page 5 here:
http://www.legislation.gov.uk/ukpga/2011/9/pdfs/ukpgaen_20110009_en.pdf
That was after a judge had given an unexpected interpretation of the law on bail:
https://www.theguardian.com/uk/2011/jul/07/critics-attack-theresa-may-plan-emergency-bail-bill
And note that she did not wait upon the Supreme Court hearing scheduled for two weeks later, and nor did she allow herself to be deterred by mutterings from the House of Lords constitutional committee.
So while it could fairly be said that the Prime Minister has had quite a lot of experience of losing court cases, she has also had some experience of using Parliament to rapidly sort out problems created by judges.
November 8, 2016
As an afterthought, for the avoidance of any doubt it would be wise for the Bill to also include those “magic words” advocated by Bill Cash: “Notwithstanding the European Communities Act 1972”.
November 8, 2016
Off topic: Now that Marks and Spencer will leave the Netherlands (once again) where will I get decent strong English and Earl Grey tea? Maybe this is already part of the great divorce? đ
November 8, 2016
Lidls sell them in France, as well as Australian and Chilean wines.
November 8, 2016
‘where will I get decent strong English and Earl Grey tea? Maybe this is already part of the great divorce?’
– Toblerone, UK, have announced there will be more gaps, and less chocolate, in their bars. Is this already part of Brexit ..
November 8, 2016
Ed – No. But it does sound already part EU – which, rather than being straight and putting the price up, opts for deception.
November 8, 2016
(i was joking,i don’t really blame Brexit for Toblerone – some good gags about it though on Twitter today – Regards)
November 8, 2016
Harrods. Just a short trip over the channel.
PS Please do not claim asylum (post BREXIT) đ
November 8, 2016
@Mark B: I promise you I won’t! đ
November 8, 2016
Migrate to the UK before you will not be allowed to!
November 8, 2016
@Duyfken: Knowing how they treat foreigners these days, is that good advice?
November 8, 2016
PVL
Do what we do. Pot, kettle tea, hot water. Not too difficult. Don’t like Earl Gray though, being a peasant Yorkshire does for me.
November 8, 2016
The serve it in the EU buildings in Brussels and Strasbourg so you should be ok whilst you are at work.
November 8, 2016
@ian wragg: No Brussels or Strasbourg in the Netherlands. Geography my friend, they do teach it over in Britain? đ
November 8, 2016
PvL
Oh dear no wonder you love the EU so much, stuck in a past life . The reason that M& S and others close stores is because you can buy online!!!
Technology is the reason we no longer need or want organisations like the EU
November 8, 2016
@libertarian: still having hundreds of M&S stores in Britain thus means that you’re a little behind? đ
November 8, 2016
JR: “It is curious that it was considered at all in the High Court of Justice in England.”
Indeed and why did Gina Millar bring forward this case? It is hard to believe, as she now proclaims, that it was to ensure that Article 50 was initiated in the proper way. Why would someone who stated their utter distress at the result of the referendum spend thousands of pounds to oil the wheels of the process to take us out? This is all intended to delay and ultimately reverse the will of the Bristish people. We cannot allow it to happen.
November 8, 2016
Dear John–Excellent–The only wonder is that the High Court doesn’t read it, realise the error of their ways, apologise and admit they got it very wrong–and you didn’t even touch on what Dicey said ages ago, which nowadays needs to be laughed literally out of Court: it could not have been clearer what was being decided; and the idea in this day and age that the Judges were not allowed to study leaflets and what was said, solely because extra parliamentary, is round the bend. One of the reasons for having a Supreme Court is or should be to keep the Constitution from rusting away.
November 8, 2016
Postscript–And why wasn’t all this nonsense gone over before the referendum? Everybody but everybody at the time expected an immediate trigger (had not our PM said so?) without demur of any kind, which I doubt a single soul can gainsay, so I rate it absurd that all of a sudden we now find ourselves where we are (wherever that is).
November 8, 2016
I think it’s becoming clearer that a Bill to affirm that the government has legal authority to serve the Article 50 notice would very likely pass the Commons, albeit with some whining from a minority of MPs, and the main obstacles to its speedy passage would come from the unelected legislators-for-life in the Lords.
As Baroness Wheatcroft helpfully explained back in August, MPs have to worry about the reaction of their constituents and their chances of re-election – possibly in the spring, if that was made necessary – while like the judges the Lords can dismiss the referendum as irrelevant and by forcing the Commons to invoke the Parliament Acts:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN00675
they can hold up service of the Article 50 notice for about a year, during which time a lot may change and maybe there would another referendum or maybe we would just stay in their beloved EU anyway.
I suppose there are two ways to find out how the Lords would react to a Bill, one being to start it in the Lords and see what happens and the other being to start it in the Commons, get it through and then pass it to the Lords.
I guess the second way would be best, and then the Article 50 notice Bill could be quickly followed by a second short Bill to amend the Parliament Acts to reduce the period of delay available to the Lords to one month for all Bills, not just Money Bills.
Cromwell had a more extreme way to deal with recalcitrant Lords, complete abolition of their House, an idea which the likes of Wheatcroft actually make quite appealing; but then he also set soldiers at the door of the Commons to exclude unwanted members, so maybe his is not an example to be followed.
November 8, 2016
Denis
Post referendum result, MP’s can now no longer claim, as they have done in the past:
a) People are not interested in the EU.
b) People support the EU.
c) We (parliament) have a mandate (the 1975 referendum) to sign away evermore powers to the EU.
All that changed on the morning of the 24th July 2016. đ Advisory or not, they, the MP’s, do not enjoy our support for this project and EVER CLOSER UNION.
It is over ! They cannot negotiate or sign away anymore powers. We have to leave.
And as soon as UKIP gets its act together, the better.
November 8, 2016
Mrs May should prepare their manifesto and item one should be ……..abolish the unelected House of Lords and replace it with fixed term elected members for scrutiny and revision only…………… then watch them squeal.
November 8, 2016
There would be no relevent change in the law until the Great Repeal Bill reaches the statue book; until then we are still under the jurisdiction of the Brussels regime.
I look forward to hearing what Lord Sumption has to say on the matter.
November 8, 2016
Dear John,
Your article betrays a number of errors. Let me point out some of them:
” It is curious that it was considered at all in the High Court of Justice in England. The matter before the Court was clearly a UK wide matter, yet it was considered by an English Court. If ever an issue was designed to be handled by the High Court of Parliament rather than by some lesser court, this was that issue”. The government’s own lawyers accepted that the question before the Court was justiciable, i.e. that it was an issue which was properly before the Court and which the Court should decide.
“In the past Courts have been rightly wary of presuming to tell Parliament what it should and should not do”. The Court has not told Parliament anything. It has ruled that the Executive has no legal power to give A50 notice without the consent of Parliament. The Court has said nothing at all as to whether Parliament should or should not give such consent.
“This was not an advisory referendum in any normal sense of that word”. Perhaps not, but it depends on what you mean by “advisory”. What it means in the legal context is that the referendum had no legal (as distinct from political) effect; it did not change the law In other words, if the government did not possess the legal power to issue an A50 notice before the referendum, it did not have such power after it either. The government’s own lawyers accepted that this was so. The referendum Act could have been drafted so as to have had such effect, but it wasn’t.
None of the points above are in actually in dispute in the legal case. You do your readers a disservice by seeking to attack the judgment on the basis of mistaken arguments which the government’s own lawyers considered untenable.
There are plenty of grounds for arguing that the judges got the law wrong and that the Supreme Court should reverse them. But those grounds are legal and not political. The political attacks on the Court are unwarranted and dangerous.
November 8, 2016
Indeed. The whole situation is dangerous.
The Judges have effectively nullified the referendum. Their’s is an interpretation of what ‘binding’ meant in this case. Very different to what the voting public (on both sides) thought it to be. David Dimbleby said “Britain has left the EU” on announcing the result. If one as erudite as he could have made that mistake then what of the public ?
It is clear that even Ms Miller at first thought the referendum binding otherwise she wouldn’t have vomitted on hearing the result.
It is clear that the situation was UNclear by the fact that it has taken an expensive legal case, a search of the Commons Library and a dusting of legal texts to tell virtually the whole of the British public (both sides) that they were under a misapprehension.
It is incumbant on Judges to interpret a contract in the spirit in which it was undertaken.
In this case they most definitely haven’t and I think they’ve acted politically.
November 8, 2016
A barrister. And so, government lawyers have decided that the English court should decide matters for the rest of the UK, despite the NI court ruling in favour of the executive. Also that the referendum was only ‘advisory’ in legal terms because it was only a political word. In that case, the civil service executive has overruled the government executive in order to prevent it making a start to a process, which will not withdraw any ‘rights’ until decided by parliament.
Who are these government lawyers and where do they work?
November 8, 2016
âThis was not an advisory referendum in any normal sense of that wordâ. Perhaps not, but it depends on what you mean by âadvisoryâ. What it means in the legal context is that the referendum had no legal (as distinct from political) effect; it did not change the law In other words, if the government did not possess the legal power to issue an A50 notice before the referendum, it did not have such power after it either.
So in other words, Cameron was acting illegally in stating that the government will enact what the people decided? The whole referendum campaign was based on a lie? Fine, if the law is correct, then you are correct, but you are basically stirring up a hornet’s nest. If 17.3 million people spent good time and money to consider the options, go out and vote, only to be told that actually, their actions were based on a lie, then there will indeed be unrest here never before seen. There will be every reason to totally ignore democracy and take matters into peoples’ own hands, because 3 chaps with wigs on can overturn anything won or lost democratically, anyway.
November 9, 2016
It’s not the Court’s job to consider whether their judgment makes people cross. It’s their job to get the law right. They swear an oath to decide without fear or favour. The meaning of that oath is precisely that judges should not allow their decision be affected by potential adverse consequences to themselves (e.g. being declared “Enemies of the People” on the front page of a newspaper).
No, Cameron was not acting illegally. He may or may not have had a mistaken view of the government’s legal power – I don’t know what he thought.
His statement would seem capable of being understood to mean that the government would regard itself as obliged to do whatever was necessary to implement the people’s decision.
It was always obvious that implementing Brexit would require getting legislation through Parliament at some stage. The only (rather narrow and arcane) point at issue in the Court case is whether Parliamentary authorisation is required at the outset of the process, in order for the government to have the legal power to issue an A50 notice.
November 11, 2016
“The only (rather narrow and arcane) point at issue in the Court case is whether Parliamentary authorisation is required at the outset of the process, in order for the government to have the legal power to issue an A50 notice.”
That is precisely what the court should not be deciding. It is a matter for Parliament and the judges should have said so. Just because a remainiac Attorney General of limited experience said otherwise is not a convincing argument.
November 8, 2016
Barrister , You have overlooked the most important aspect – the people decided in the referendum , not the legal process . Legal process has often been flawed and judgements made overturned ; the law is ultimately subservient to the will of the people in a democracy .
November 8, 2016
Parliament does not need a court order to stop government from triggering A50 it is quite capable of doing that itself by placing a motion before parliament and voting upon it. So the court simply should have rejected the case. Stating it was none of it’s business as parliament does need the protection of the court. Judges and lawyers should be careful as they have no protection against parliament. Once already lawyers have shown their contempt of parliament by fiercely opposing legal aid changes. That tells me that the judiciary are more interested in self serving than upholding the laws as laid down by the people of the UK through their parliament.
November 8, 2016
“parliament does need the protection”
Sorry should read “parliament does not need the protection”
November 8, 2016
An easy way of getting the judges of the supreme court to reverse their decision is to tell them that If we stay in the EU we will introduce a National Law Service.
November 8, 2016
Ten out of ten A barrister. Could you please draft a Bill titled “Statutory Right of Reply”. Such that the front page of the Daily Mail, declaring Judges as ” enemies of the people”, can have the same column area and page position, contain a reply, from a recognised authority, in very small print and/ or left blank.
“The Council of Europe Commissioner for Human Rights Nils Muiznieks expressed concern on Monday over several UK newspapers and politicians’ attempt to “to stir up hatred” in the Brexit debate. The human rights watchdog highlighted the press reaction to the court ruling that requires Parliament’s approval to trigger the exit talks. Muiznieks said it provoked “blatant attacks on the independence of the judiciary; designed to stir up popular hatred.”
November 8, 2016
A barrister:
You have missed the point. We the People are out of tolerating debate
November 8, 2016
“attacks” ( last line ) . ?
November 9, 2016
A barrister wrote: “The referendum Act could have been drafted so as to have had such effect [triggering Art 50], but it wasnât.”
Precisely. Contrast this with the AV Referendum where Parliament made provision for what would happen next: see s8 Parliamentary Voting System and Constituencies Act 2011.
November 8, 2016
By the way, JR, superb oratory in the Commons yesterday, from Column 1316 here:
https://hansard.parliament.uk/commons/2016-11-07/debates/605BEFA9-1A9E-443E-A746-BBCC40758D18/ExitingTheEUAndWorkers%E2%80%99Rights
I guess some would disagree with you about keeping all of the EU-derived legislation on workers’ rights in perpetuity, we know that some elements are not good.
November 8, 2016
Denis
No parliament can bind its successor. So I think we will, overtime, get rid of a lot of legislation that does not suit the UK.
November 9, 2016
That is what some opposition MPs fear, it is why they want us to stay in the EU so that a future Tory government cannot erode workers’ rights. You can see one of them, Geraint Davies, interrupting JR at the link given above to say it, and he made his own speech at Column 1343.
“It is all very well having undertakings from Government Front Benchers that they will be there for the next few years; subsequent Parliaments may choose to repeal laws and get rid of those rights. If we stayed in the EU, they would not have that power.”
In other words, this Labour/Co-op MP does not believe in the sovereignty of the Parliament of which he has been elected a member, our national Parliament, he wants it constrained by the EU.
November 8, 2016
You’re wasting your breath John. Now we have the remainiacs trying to nullify the referendum on the pretext that voters were misled.
No mention of project fear or from the Pope down everyone in the establishment telling us of armageddom if we voted to leave.
The fact that Mrs May continues to delay reinforces the belief that she is using the courts for protection.
We really are heading for an unprecedented backlash by the electorate the who rightly smell a rat.
November 8, 2016
If they are going to question a statement made in the Referendum, then they should be reminded of what Ted Heath promised us about joining the EEC….to quote him…âThere are some in this country who fear that in going into Europe we shall in some way sacrifice independence and sovereignty. These fears, I need hardly say, are completely unjustified.â and of course there is the promise that was made to give us Referendum on Lisbon, which never happened, and on which the Courts backed the Labour Government by saying that a manifesto promise wasn’t supportable in law.
Just as it seems the Royal Prerogative is a one way street to achieve more EU, the onus on telling the truth would appear to only apply to the EUsceptics.
November 8, 2016
More to the point Remain lied that the continuation of EU membership offered stability when in fact it means the abolition of Britain through freedom of movement and loss of sovereignty.
November 8, 2016
The UK joined the EEC under prerogative powers.
November 8, 2016
No ! There was a vote.
November 8, 2016
There was a referendum after we had joined. Happily for Remain that day they won – so no court case to challenge it.
November 8, 2016
Does this judgement mean that all those laws are invalid? If we were never legaly in the EU then how can the judges rule about the manner of our leaving it?
November 8, 2016
Hmmmm….
Much of this piece vaguely conflates the principles of democracy with the practicalities of administration, and in doing so manages to avoid identifying where the problem really lies.
The Courts have not intruded themselves into politics. They have been asked to rule of a specific point of law – whether a right instituted by Parliament can be removed by executive order. And have ruled that it can’t – which is indeed current law.
For my money, I believe that they have the underlying issue wrong – because the rights being discussed were not conferred by Parliament, but from the EU, and were instituted as a consequence of a treaty being agreed. If they were not instituted directly by Parliament, the Executive can initiate their removal on its own quite legally.
What this sorry episode shows up is the mess that is Article 50. Normally, a treaty between two countries is initiated and negotiated by the Executives of both countries. Once agreed and signed, it is offered to their respective Parliaments for ratification, and on that it becomes law. The removal of a treaty ought to happen the same way – initiation by the Executive, negotiation to arrive at a specific agreement, which is then voted on by the people’s representatives. This gives Parliament the final word on accepting or rejecting a treaty – a decision which is able to be informed by the final agreed text of the treaty in front of them.
But Article 50 does not specify this. Instead, the Leaving Party is required to make a firm commitment to leave, before any negotiation about terms is even begun. The negotiation then takes place, and is either concluded or cut off after two years, depending on the wishes of the EU. So the UK is required to leave BEFORE any detailed agreement CAN exist for Parliament to consider.
This being the case, it is hard to see WHAT Parliament could debate. The only thing they could agree is that we should apply to leave, and must accept whatever deal is offered – a deal which might be very advantageous, or which might be completely unacceptable. There is no way such a choice could be ‘informed’!
It seems to me that the courts were wrong in law to require Parliament to have a voice in the issuance of Article 50, but right as a matter of practical politics. Since the ONLY time a meaningful decision can be made on the Leave issue is when it is initiated. After this time the Leaving Party has no ability to call a halt or even ratify the agreement, and there would be no point in Parliament wasting its time debating a done deal….
November 8, 2016
More strength to your elbow, John. I’ve been trying to make your point to my Remain friends about it being open to the Opposition to call for this condition, but tend to be met with shoulder shrugs or squawking!
November 8, 2016
What a confused article. The Court did not – despite your implication to the contrary – “tell Parliament what it should and should not do”. It told the Government what it had to do so as to give effective notice under Article 50 of the EU Treaty in accordance with British constitutional requirements.
Your criticism is also curious given that the decision of the High Court of Justice is that, in effect, the High Court of Parliament has to take the decision to give notice under Article 50 of the EU Treaty, rather than the PM.
Finally, as the Government, which you support, was a party to the proceedings, presumably you will be taking up with them – in Parliament – why they didn’t bring the below matters to the attention of the Court?
“As the judges wished to trespass into this territory they should have acquainted themselves better with Parliamentary procedure and the recent Parliamentary timetable. They would have discovered that Parliament has had plenty of allotted time for debate and questions on Article 50 and general Brexit in both government and Opposition time. They would have realised that if the Commons wanted a vote on Article 50 the Opposition could at any time table a motion to require one in Opposition time. It could formally ask the government to table one, though the government might reply they should table one themselves. The fact it has not done so implies that the Commons accepts an Article 50 letter will be sent. Indeed, many Labour MPs have confirmed they agree with sending a letter, as does the government side.
It would also have been wise if the judges had read the leaflet sent to every household by government at taxpayers expense with Parliamentâs approval stating clearly the people were making the decision to leave or remain. They could also have read the many Hansard references stating the people will make the decision in the referendum. This was not an advisory referendum in any normal sense of that word. They could also have consulted the official literature of the two referendum campaigns and seen that one of the few things they agreed on was the people were to make the decision. The reason Remain rhetoric was so hyped about the dangers of leaving was their recognition that the people might make the wrong choice in their view. The vote of the people should be more powerful than the views of three judges.”
November 8, 2016
The decision of the High Court is ridiculous and a blatant attack on the powers, rights and privileges of the Crown. Unfortunately the bench of Judges is quite ‘political’ and I fully expect that the Law Lords, sorry ‘Supreme Court,’ will uphold this daft judgement. They shouldn’t because it is wrong in Law and custom. But it needs to be repeated that had Parliament not intended the Crown to be able to denounce the European Union treaties – that is to say exercise Article 50 – then you would have restricted the Crown’s Prerogative when you passed the EU Amendment Act 2008. You didn’t.
Here are deeper explanations as to why the court judgement was wrong. http://judicialpowerproject.org.uk/high-court-miller-judgment-expert-reactions/
November 8, 2016
The Court’s decision was blatantly a political one, it is hard to credibly expect the Supreme Court’s position to be any different. Had the referendum result been to Remain, neither Court could reasonably be expected to hear a plea from the Leave camp sympathetically.
We are becoming increasingly ruled by politically motivated lawyers, whether that be of the home grown variant or by the European Commission’s enforcers at the European Court of Justice.
This ruling admirably demonstrates that the largest vote in British history, to leave the EU, was a wise decision; despite and indeed because of the fact that implementing the result will be fraught with difficulty, delay and obfuscation, to be laid in its path by those of a totalitarian bent. Vigilance, determination and courage will be required, one fears that too few MPs possess these qualities.
November 8, 2016
An excellent overview of all of this from Mark Elliot (Professor of Public Law at the University of Cambridge) and Hayley J Hooper (Junior Research Fellow in Law at Homerton College, University of Cambridge) is now available:
https://publiclawforeveryone.com/2016/11/07/critical-reflections-on-the-high-courts-judgment-in-r-miller-v-secretary-of-state-for-exiting-the-european-union/
It’s disappointing to see Dr Redwood arguing that a “leaflet sent to every household by government” with or without Parliament’s approval should take precedence over a thousand years of evolution of UK constitutional law.
This case was brought for political reasons. The argument put forward by HMG’s lawyers were limited for political reasons: notably accepting that notice to trigger Article 50 can not be revoked.
The High Court case was lost, in no small part, because the HMG’s lawyers accepted that notice given under A50 is irrevocable. That is probably wrong but accepting that A50 is revocable puts Remainers in a win-win situation:
[1] If HMG accept that notice under A50 is revocable, then the trigger can be reversed by Remainers at any point up to final withdrawal from the EU.
[2] If HMG win at the Supreme Court on the basis that A50 is revocable, that ruling can be appealed to the ECJ.
This case is politicised by what has not been said rather by anything said in the High Court’s ruling.
November 8, 2016
If Article 50 IS revocable then surely the single main point of the judges – that merely triggering Article 50 effectively removes the UK from the EU without parliament’s approval, is rendered void?
Under those circumstances wouldn’t triggering Article 50 just begin a period of negotiation, with the final offer being put to parliament for a vote? In turn that means triggering Article 50 is NOT an act of the government reaching beyond its powers.
Trigger Article 50.
Retain the right to cancel Article 50, or shorten or extend the 2 year period subject to EU / UK agreement.
Negotiate.
Offer terms to parliament. (which will be an either / or scenario to leave BUT ‘could’ theoretically include an option to remain, thus preventing judges from asserting triggering Article 50 would open an irreversible path to leaving and thus be illegal. If the government ‘could’ offer a choice to remain that avenue would be closed to the judges)
Parliament votes, thus retaining its sovereignty.
Leave.
November 9, 2016
The point argued in HC was that merely triggering Article 50 would lead to the irreversible removal of rights of UK citizens – those rights they have as EU citizens. If trigger is revocable, then removal of those rights is not inevitable.
There is nothing new in the courts requiring Parliament to explicitly legislate when removing constitutional rights and not allowing them to be varied by implication. It’s a safeguard built in to stop rights being abolished inadvertently. One could argue here, perhaps, that MPs could hardly have intended anything else and that Government statements, leaflets and Parliamentary Library briefings set out the intention of the Act clearly. This ought to be so; regrettably, judging from recent press comments, it seems not all MPs were all that attentive.
November 8, 2016
In theory you might be correct, but in practice this is just daft. If our elected representatives, called on to enact law in a democratic society, all agree on a particular statement then that can surely be regarded as de facto “the law”. If you start to separate out what people are being told by their elected representatives, in agreement, from what they might actually be voting for, which is the polar opposite, you have major unrest brewing. Your “great and good” might be able to, but we can’t all second guess the judiciary when we work out whether it’s even worth going out to vote in a referendum.
November 9, 2016
I agree, I think, but what the High Court has said, in effect, is an extension of that principle: that the judiciary should not second guess Parliament.
In an earlier judgement (2002?) Lord Justice Laws ruled that ‘constitutional statutes’ must only be abolished by express approval of Parliament to avoid such second guessing. Effectively this means that “the law” has classes of law and they are not equal.
November 8, 2016
“This case is politicised by what has not been said rather by anything said in the High Courtâs ruling.”
Including the fact that ‘over a thousand years of evolution of UK constitutional law’ is being used to make itself extinct.
The biggest lie was told by Remain – that Britain’s future is best served in the EU. No. Britain gets abolished in the EU. That’s what loss of sovereignty and mass immigration is all about.
November 8, 2016
A good argument. If the claimant, and these Judges had been around in 1939, would they have similarly delayed or aborted Britain’s declaration of war on Nazi Germany, surely the most important use of prerogative power in our history? Would they have demanded that before approving the declaration, Parliament must be told, and debate, the Government’s precise plans as to how Britain would conduct and win the war? Would they have asked for convincing proof of our ability to win, before approving it?
November 8, 2016
Re: Brexit.
To the Commissioners & the remaining 27 countries:
“My son,” said the Norman Baron, “I am dying, and you will be heir
To all the broad acres in England that William gave me for share
When he conquered the Saxon at Hastings, and a nice little handful it is.
But before you go over to rule it I want you to understand this:-
“The Saxon is not like us Normans. His manners are not so polite.
But he never means anything serious till he talks about justice and right.
When he stands like an Ox in the furrow-with his sullen set eyes on your own,
And grumbles, “This isn’t fair dealing’, my son, leave the Saxon alone.
“You can horsewhip your Gascony archers, or torture your Picardy spears;
But don’t try that game on the Saxon; you’ll have the whole brood round your ears.
From the richest old Thane in the county to the poorest chained serf in the field,
They’ll be at you and on you like hornets, and, if you are wise, you will yield.
An extract from a poem by Rudyard Kipling.
I want my Country back!!
I love your column John – I support you 100% Keep up the fight!
November 8, 2016
I agree with all these well put points.
I also think the judges had a duty to uphold the integrity of their court and not allow it to be used by a rich and largely anonymous cabal to make our country and its constitution the laughing stock of the world.
November 8, 2016
Commons motions and leaflets pushed through letter boxes are no business of judges.
Judges apply laws, simple as that. And in the case they applied the ECA 1972, which excludes use of the prerogative.
November 8, 2016
Commons motions certainly can be the business of judges, for example if it is being contended that under the parent Act a minister cannot do such-and-such without getting the relevant order approved by a Commons resolution, and no such Commons resolution was ever passed. It would be absurd for the judges not to ask, and maybe also check, whether that was the true state of affairs.
As for leaflets pushed through letter boxes: well, I got one which was an official circular letter from the government to all electors, and it made a crystal clear promise. If you agreed with the judges that this circular letter was none of their business, would you say the same for an official individual letter making some crystal clear promise just to the addressee? If the government then reneged on that promise, would you think it right – just – if the judges dismissed a complaint on the grounds that it was none of their business what the government had promised to that person, and the letter containing that promise was irrelevant?
November 8, 2016
JR, very good. Let us hope your view is correct. However it begs the question why the govt.’s solicitor did not advance this or the attorney general? Is he up to the job or made an accident slip up on purpose thereby giving May the opportunity under disguise to advance EU light per the five presidents report?
November 8, 2016
These are all good points. Are we to infer that the Attorney General did not make them?
November 8, 2016
I’ve been wondering about that particularly as the same person was the Attorney General for Cameron in the time leading up to the referendum and is in the position still.
November 8, 2016
Those leaflets were just a printed version of Cameron’s normal behaviour – -lies and more lies. Say anything, Promise anything – -deliver nothing.
November 8, 2016
After the High Court judgment was given my immediate reaction was that the government should not waste time appealing to the Supreme Court but should just start a Bill, on the basis that the sooner the Bill was started the sooner the unelected legislators-for-life in the Lords could be sorted out one way or another.
But while I still think that the Bill should be started I now believe that the judgment is so flawed that it has to be challenged. The two are not mutually exclusive.
I’m all in favour of tracking back in our history to see how we have got to where we are today, and so I have no objection at all to the 1610 Case of Proclamations being cited in court, well done that lawyer in that regard, but if we want necessary constitutional change to be by evolution rather than revolution then we really cannot have our judges uncritically citing something written by Professor A V Dicey back in 1915 to justify their total dismissal of a properly conducted national referendum ordered and arranged by Parliament, with a clear undisputed result, as irrelevant to their deliberations.
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
âThe judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament ⊠â
In 1915 no woman could vote in a parliamentary election, and apparently if Professor A V Dicey had got his way that would still be the case now.
November 8, 2016
I always prefer to read these things for myself rather than rely on the interpretations given by others so I think a link to the judgement is appropriate.
https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf
November 8, 2016
Sir,
The High Court in England and Wales has always been an appropriate forum to start challenges to the UK government, and with the devolution settlements and the place of residence of the Claimants, there is no doubt that it was the right forum. It also gives us the spectacle of a curious silence from the SNP when a case goes ‘their’ way.
The Attorney-General conceded that the matter was justiciable, so that point was thrown away by the Crown.
However, the simple fact is that the right to trigger departure is a Treaty right, enshrined in UK law by an Act of Parliament in 2009 (the Act that gave the Lisbon Treaty legal force in the UK) and within that Act, which was obviously passed after the European Communities Act 1972 and superseded it to an extent, there was a mechanism (which had not previously existed) which expressly allowed for a State within the EU to leave, or to be ‘vented’ if you like. Notify (in accordance with your own constitutional requirements) the Council that you wish to leave, and that is that, the train leaves the station on the journey to exit.
In terms of a notification within a State’s ‘own constitutional requirements’, that is simply stating that the Treaty does not set out any particular process, and the matter is left to the State. It is not for the High Court to tell the EU whether or not a notification is lawful, the High Court may not interfere in internal EU matters. And even then, the European Union Act 2011 specifically set out limits on the exercise by Parliament and the Crown on the exercise of the provisions of the Lisbon Treaty and whilst it set out requirements for Article 50 (3) (an extension to negotiations with a departing State), it did not mention Article 50 (1) (the ‘trigger of exit’ clause) at all, thereby leaving it untouched. In short, Parliament did limit the Crown and its own right to exercise rights under the Lisbon Treaty, but it did not touch on Article 50 (1). Therefore, it must necessarily have left that right (which restores the UK’s status quo ante the 1972 Act) untouched, and furthermore, leaving the EU does not invalidate rights under the 1972 Act, it simply leaves EU law supreme over other law unless and until Parliament decides otherwise. The judgment glossed over the 2011 Act in a single paragraph.
The Supreme Court ought to rule that the right to exercise Article 50 (1) has been considered by Parliament in the EU Act 2011, and has been left without restriction (unlike Article 50 (3)) and therefore it must have been Parliament’s intention that there was no restriction on the exercise of a right given by Act of Parliament and the Treaty to leave.
November 8, 2016
Another excellent summary of the position. JR as you so rightly say: ” The vote of the people should be more powerful than the views of three judges.” In a sense that says it all!
However another very serious flaw in the Remainer’s case is the irrefutable fact you quote about the use of the Royal Prerogative – “the bizarre idea that prerogative powers of Ministers can never be used to change UK law”.
It seems to me that there is no answer to that and the three judges are simply plain wrong, and therefore must have been exercising strong personal prejudice, for the long history of our membership of the EU has demonstrated that domestic law (via the ECA ’72) has been determined by treaty obligations sanctioned by the Royal Prerogative!
It would appear then that this was a political judgement as much if not more than a legal one
As you say, the case should never have been brought in the first place.
November 8, 2016
Off Target:-
Has anyone calculated the impact on the UK’s EU contributions, following the fall in the pound against the Euro?
November 8, 2016
Around ÂŁ420 million I guess. That battle bus needs repainting.
November 8, 2016
No doubt Brussels will use the RPI to increase our Euro contribution by 2.2% from last year. What’s the betting it doesn’t reduce.
November 8, 2016
http://www.telegraph.co.uk/news/2016/11/07/cps-considers-complaint-that-leave-campaigns-misled-eu-referendu/
A file has been sent to the CPS on the Brexit campaign.
I was not much influenced by the Brexit campaign rather Leave’s failure to convince me why there can be a contradictory position whereby the abolition of Britain was necessary to continue as a trading nation.
Let’s be under no illusions. No country can survive without borders and with its powers ceded without – that it could was by far the biggest lie told in the referendum by far.
PS, The Battle Bus slogan cannot be proven wrong as we have not been allowed to have Brexit.
November 8, 2016
The Remainiac lie about the bus is that it was a promise by people who were in power. It was only ever a suggestion, as an illustration of just how much money was going to the EU.
In fact the figure was less than the full gross amount and took no account of top up contributions like bailouts, payments to Turks etc. Nor did Remainiac arguments on the rebate let on that it was half what it had been and would probably be abolished altogether because of the financial pressures of enlargement.
Brexiteers never countered all this misinformation – apart from Nigel Farage who said the gross figure should be 365 million but let the rest go.
November 8, 2016
And none of them pointed out that the contribution can only go up as the years go by.
November 8, 2016
Presumably all the other times when the Royal Prerogative was used, no-one thought to object to the courts – they won’t make a judgement until asked, presumably. Does this mean that all these treaties etc are not actually legal and that we don’t need to negotiate it all away? Can’t we just pull out straight away? Presumably the Article 50 bit was done the same way so is not legally binding?
Also, wasn’t there a law passed to say if there was a material difference to any treaty, the public would have a right to a referendum. Well, you can’t get much more of a material difference than pulling out of the EU and we had our referendum. Surely that means it was legal and binding, even if the relevant Acts were not quoted?
Regarding arming themselves with other facts, it seems they would rather consult their dusty old books for a law in the 1600’s as presumably Hansard etc is not legally binding? I ask, because I recently I attended a Public Inquiry at which I asked a question, having got my facts from the HoC Library and was told in no uncertain terms by a barrister that HoC Library items had no force of law and was made to shut up and my question was not considered.
Seems like the lawyers only operate on very narrow perspective and make up their own minds what the law is and common sense or hard work in doing research do not come into it. Justice, in my opinion is only available to those with sufficient funds to buy it.
November 8, 2016
Reuters and FT reporting today;
âM & S and ABF ( Primark) have said they won’t be passing price rises on to customersâ
“With this devaluation of sterling, food manufacturing in the UK for export or for import substitution looks really exciting,”
As I argued all along, Brexit is a massive opportunity to rebalance Britain’s trade deficit.
Also reported today ‘Retail sales booming and prices FELL, yes FELL, 1.7%’
November 8, 2016
The most important issue at the moment isn’t sovereignty, the economy or immigration – important as these are – but what sort of people we are? What it means to be British? At the moment, we’re becoming (as in the approach of some of the newspaper towards the High Court ruling – not that the judges shouldn’t be challenged but it was the way in which it was done – are a bit more like the followers of Mussolini in 1930’s Italy than the people of Britain during WW2 under Winston Churchill.
November 8, 2016
Last week you were likening Brexiteers to one of your old pals who had put a bird in the family way, left his wife and bought a red sports car. This week we are behaving like Italian blackshirts. Probably the age profile of contributors makes both of these unlikely. People and newpapers have been ridiculing judges and saying something should be done about trains running late for a very long time. Maybe you should change your pub.
November 8, 2016
‘People and newpapers have been ridiculing judges’
– But that’s more about not allowing members of the judiciary to take themselves too seriously which is a healthy part of British life.
But this is different. This was an attack on the judiciary (I’m not talking about the individuals but the office they represent) in a serious, constitutional context.
(And yes to challenging debate but not treating the judiciary like this – whether they were right or wrong – in such a serious constitutional context).
November 8, 2016
Oh, dear did the nasty newspapers upset the poor little old judges. I expect they cried all the way to the bank. If they are upset, they need to grow a pair!
November 9, 2016
‘Oh, dear did the nasty newspapers upset the poor little old judges. I expect they cried all the way to the bank. If they are upset, they need to grow a pair!’
– Don’t you see the difference between the judges as individuals and the judges representing the office the judiciary?
– When a soldier salutes a senior officer, he’s not saluting the individual but the rank that officer holds in the army.
– When a man bows to the Queen, he’s not bowing to the Queen as an individual (unless he’s accustomed to bow to people in general) but to the position of the Crown she holds.
– When you respect the judiciary in court or in general, it’s not the judges you’re respecting (no more than anyone else in society) but the law of the land they represent.
Don’t you see the difference?
November 9, 2016
FFS ! They were lucky not to have rioting in the streets the weekend after.
Can you imagine the reverse done to Remainers ? Or to the Scots if they’d decided to break up the Union but judges told them they couldn’t ?
November 8, 2016
I am no legal expert but my understanding was that the court judgement did not direct Parliament in any way but did rule that the use of the royal prerogative would not be enough to trigger article 50.
Granted, it does mean the ball is put back in Parliamentâs court but, as far as I can tell, it does not tell Parliament what it should or should not do.
November 9, 2016
I don’t particularly like the argument that the court is interfering with proceedings in Parliament. This is far from the first time that a court has told a minister that in its judgment the law as it has been passed by Parliament does not provide him with sufficient authorisation to do something, which is tantamount to telling him that if he still wants to do it he will have to get further authorisation from Parliament, which will necessarily mean interfering with its planned proceedings. On the other hand while I think that argument is tenuous I think the argument that service of the Article 50 notice must eventually lead to the destruction of rights granted by Parliament, and so it cannot be done without further authorisation from Parliament, is equally tenuous.
November 8, 2016
In the recent E & W High Court judgement(2016, no:2768, Lord Thomas et al) paragraph 7 enumerates the “rights” of the claimants that will be affected by invoking Article 50 by Royal Prerogative. I have not seen (I have not read all the E&W HC judgement yet) evidence that the judges considered the rights lost by the continued enmeshing of the UK into the EU. Also, won’t those rights be affected anyway if Parliament does vote to invoke Article 50, as advised by the EWHC?
In the EWHC paragraph 20 it is stated: “There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow this to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.” That statement is what happens in practice but is subtly different to what Lord Justice Laws et al said in the “Metric Martyrs” Appeal Court (a higher court than the High Court). According to Laws et al it is the ECA 1972 as a “constitutional statute” that has the precedence, not the EU legislation itself, as shown by the quote below:
(“The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.” – paragraph 62, Laws et al Appeal Court).
As a layman the EWHC judgement appears very sloppy. It is reinforced by looking at paragraph 3 where Lord Thomas et al state that withdrawal from the EU “is governed by Article 50” of the TEU. “Is governed” is incorrect. Withdrawal may be governed by Article 50 but does not have to be. The Vienna Convention makes it clear that any nation with the sovereignty to sign a treaty has the sovereignty to abrogate that treaty. And Vienna suggests an exit clause can be used but does not insist upon it:
(Vienna “Article 54. TERMINATION OF OR WITHDRAWAL FROM A TREATY
UNDER ITS PROVISIONS OR BY CONSENT OF THE PARTIES
The termination of a treaty or the withdrawal of a party may take place:
(a) In conformity with the provisions of the treaty; or
(b) At any time by consent of all the parties after consultation with the other contracting States.”).
If the EWHC judgement is not overturned in the Supreme Court (unlikely in itself), then Mrs May is stuck: she can’t use the Royal Prerogative; she hasn’t got a majority in Parliament to win a vote to invoke Article 50; so she hasn’t got a majority to overturn the Fixed Term Parliament Act 2011 either. Result: no Brexit until after the 2020 general election. What a mess.
November 8, 2016
Thank you. A really satisfying rebuke to the likes of Clegg and Heseltine. Particularly the former whose musings on this topic can be so frustrating and annoying, especially when he insists on spicing them up with references to so called “Euro Sceptic nutters and fruitcakes”. Their protestations about parliamentary sovereignty are especially insufferable when you consider how EU Directives get embodied in British Law with minimal scrutiny by parliament.
November 8, 2016
In the order of the post:
The High Court is not telling parliament what to do. It is just striking out the Crown’s power to invoke Article 50 in the circumstances of the judgement. In fact, Mrs. May seems to be trying to get the judges to tell the government how to proceed.
The referendum made no reference to how Brexit was to be implemented, the issue in the judgement.
Hearsay suggests some interesting arguments around ECA1972, likely to have been illegally negotiated by the Heath government in terms of this judgement. The judges may have been too sure in their dismissal of arguments around ECA (something for actual lawyers). But the real issue seems to be the need for the Crown to retreat to the ground staked out by Justice Maguire in NI. The following sentence from [104](3) of the High Court judgement seems relevant (commenting on Maguire):
“It is therefore again unsurprising that his conclusion at [105] that notification under Article 50 will only “probably” ultimately lead to changes in United Kingdom law was arrived at without knowledge it had been accepted before us on all sides that it necessarily will have that effect.”
November 8, 2016
If you read a piece on EUReferendum.com it states that this court case asks the Courts to intercede between parliament and the executive. It states that as parliament has the means and power, itself, to force this issue by a vote of “no confidence” to bring down the government the courts should not be involved. It states that if the intention is to challenge the principle of Crown prerogative the place for this argument is in Parliament and not in the courts.
This could be a challenge to our entire Constitutional System. We all watch the outcome.
November 8, 2016
Having spoken to many a law operative in my time, the Supreme Court Judges will already have decided the rights and wrongs of the case.
November 8, 2016
John,
If this legal argument stands then presumably governments have previously, used this perogitive unlawfully – won’t all those decisions need reversing?
November 8, 2016
It is my experience that contested court cases are like a lottery, Rarely can the outcome be predicted in advance and the resultant verdict be accepted by all parties. The reason it is so uncertain is because the abilities, predilections, and motives of judges and the factors they take into consideration varies enormously. Even the most able sometimes I am sure make errors of judgement or at least contestable ones.
The article 50 judgement is one that fails because it has not taken into consideration all the relevant factors that you have listed. Especially the one of parliament being supreme in deciding the limits of government functions and prerogatives. The judges have in effect politicised the judiciary if this judgement is upheld. We only need to look to the USA to see where that leads. It leads to political bias so that one party can dominate even when it does not form the government. The ability to thwart the will of the people and that is precisely what this judgement has done.
November 8, 2016
The leaflet informing of the Parliamentary decision to sign A50 immediately should we vote to leave went to every household. Judges will have received this leaflet. So Sure we’re they and politicians that we would vote to Remain that not one of them objected to the wording of the leaflet. It was clear, concise and followed up with TV, press statements from our Prime Minister and Chancellor to make it abundantly clear that leaving the EU meant leaving the Single Market. Not one person disagreed with this. the President of the United States was also drafted in. Would he be happy to be involved in merely an advisory vote having used threatening language to the British people no.
I am not a lawyer but common sense tells me that our Prime minister has been given a mandate by Parliament to invoke A50 immediately as per the leaflet. The case brought by Gina Miller should have been thrown out and not have gone to court. EU law should be brought into UK law before she gets a chance on losing her court case in the High Court of applying to the European Court of Justice. She will do everything she can to derail the wish of the British people. As she has said she is a very determined woman who gets what she wants and we seem to have MP’s who are on her side. This is a disgrace and a shambles and should never have come about. Had we voted to remain it would have been used as a mandate for further integration into the EU.
If my grandfather having lost his life in WW1 came back now he would think Germany would have won the war as would every soldier killed in the Second World War.
November 8, 2016
One other point I would like to make is the affect this must be having on the young people who voted in this referendum. On the BBC a teacher was shown telling his students that this referendum was advisory. University students we told by their lecturers to vote giving only their side of the argument. This shambles now has leave students being victimised by their remain peers. Thank goodness we didn’t let 16 year olds vote. What are these young people going to think when they are getting mixed messages from adults who should know better. The law in this case has proved itself to be an ass. All students should now have lessons/lectures in their schools and universities about the history of the EU to the present day. These should be given by teachers in a totally unbiased way. They will then have personal experience of the outcome.
November 8, 2016
” Time after time Ministers have consented to an EU law under prerogative powers which directly changes UK law.”
I would contest the notion that these are comparable. Firstly, Secondary legislation always has a primary legislative basis – in this case the ECA 1972.
Here what the judges have said is that
a) The wording of Article 50 implies nullification (implied repeal) of Section 2 of the 1972 Act, simply because there is no wording which allows for the notification to be withdrawn.
b) The Referendum Bill was not written in such a way as to give the Executive the ability to repeal any part of the 1972 act.
It’s a pain in the back side, but the truth is that the Lords failed in their scrutiny role when both Lisbon , and the Referendum Bill were debated. Nobody saw the danger of the wording of Art 50, the constitutional implications of it. Because of this, nobody cross read the issues with a referendum that was not binding, and therefore conferred no power on the executive to act.
November 10, 2016
Tony – All the Treaties were signed by our “representatives” completely blind – nobody read any of them as they are too onerous to understand.
If you read EUReferendum.com, Dr Richard North HAS read them and Article 50 but says the Article is drafted in such a vague way as to need interpretation. They wrote it believing it would NEVER be used !!!!
November 8, 2016
Interesting analysis – I hope the Supreme Court will see it that way as well
Off topic: I have just looked at a reliable web-site giving our electricity consumption & generation http://www.gridwatch.templar.co.uk/ It is showing that the colder weather we have just now has pushed our electricity generation capacity into the amber warning zone. This is due to us being trapped in the EU’s energy madness and having closed coal fired power-stations. If it gets even colder this winter then the lights will be going out for some. So the sooner article 50 is invoked the better – and I want a ‘hard Brexit’ – this to remove the shackles of the madder parts of the EU’s Environmental legislation.
November 8, 2016
Atlas
Yes EU madness at its worst. Scottish renewables were bragging in the papers that wind farms had managed to power all of Scotland’s homes last month. What they fail to say was that it wasn’t for 24/7. They pretend they are providing all power when in fact they import from England on a regular basis. They are devious to say the least and of course the unsuspecting public suck it all in. If we do get sudden power cuts it will be catastrophic because we all rely on modern gadgets and just think what will happen when we are all driving those wonderful electric vehicles!! They truly have lost the plot.
November 8, 2016
It looks as though we in the SE not be able to rely on French nukes to top us up this winter, via the much EU recommended interconnectors, as many of EDF’s nukes have shut down for checks on the reactors.
November 8, 2016
None of these factors are legally relevant.
(I) its irrelevant how much parliamentary time is being devoted to this issue or what individual mps think. Indeed it would be quite wrong for the judges to enquire into parliamentary process. All the judges are concerned about is what statutes come out of the sausage machine at the end – there has been no law repealing the 72 Act and that’s all they are concerned about.
(II) it is irrelevant what the government puts into a leaflet, otherwise any government could repeal any law by setting the printing presses going
(III) You’re correct that ministers accede to EU law, but that’s only because parliament has given prior approval via the 72 Act
(IV) It is abundantly clear that UK referenda are only advisory except where the Act enabling the particular referendum says otherwise.
For example the Act for the referendum on alternative voting had a provision in it which required the government to give effect – as follows:
“The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (âthe alternative vote provisionsâ) ifâ(a) more votes are cast in the referendum in favour of the answer âYesâ than in favour of the answer âNoâ, ”
This referendum Act didn’t.
The fact is that you, John Redwood, along with your fellow MPs when voting through the referendum bill should have ensured there was provision in the Act such that it wasn’t merely advisory (like the alternative voting bill). The fact that you didn’t is the fault of you and your fellow MPs and no-one else.
November 8, 2016
Stuff Article 50. It’s designed to prevent anyone leaving. We should just repeal the 1972 Act and then invite the German government to discuss any changes it might like to the terms of its export trade. Our basic negotiating position should be that we see no need for any changes.
November 8, 2016
It is said that “Lord Thomas, founded a European law group dedicated to bringing about the âenhancement of European legal integrationâ.
If this is true, and I don’t think anyone has challenged its veracity, surely he should have acknowledged a conflict of interest and stood down. Raging against newspapers for criticising judges seems to be a diversionary tactic. Judges should only be beyond criticism if their behaviour is beyond criticism.
November 8, 2016
If as you say past legislation has passed into UK law by means of the Royal Prerogative, and has not been discussed in Parliament, then does the high court judgment not invalidate those laws?
Perhaps some specific examples might illustrate the point.
November 8, 2016
This is all very interesting, it makes me wonder why the government’s legal officer didn’t bring it up? The government seemed very complacent in preparing a legal argument to answer the challenge of this case to their authority.
Archbishop Cranmer had a super blog post about this I respectfully suggest you take a look if you didn’t get the opportunity to already.
November 8, 2016
John,
With respect you should leave legal matters to lawyers.
Let the Supreme Court make the final ruling and respect it.
November 9, 2016
With or without respect you cannot tell an MP to leave legal matters to lawyers, as he is a member of the body which is the supreme legal authority for the country.
November 8, 2016
SOS to Mrs May!
You are now losing control of our Country.
We can’t afford to wait until January when the Supreme Court decision is announced.
The result will inevitably cause even more anger, when the ‘judiciary’ inevitably rules the way the EU and the UK Establishment wants it to.
Hold a Commons vote on Article 50 – now!
If the Government is defeated, call an imemdiate General Election.
Labour will be slaughtered.
The LibDems will be lucky to have a few MPs, at best.
The Government will get a thumping majority and can get on with Governing our Country.
We must do this, to sweep aside the mischief-makers who are openly conspiring, and trying to deny the Will of the People.
We voted for Brexit to “take back control” from the EU
But the Government is now in danger of losing control of our own Country.
November 8, 2016
What the court judgement means is this country has never been a member of the EU, the people voted to join a free trade area with some new laws on trade but not the parliament and EU laws have been hand down to the people by royal prerogative and not handed down by parliament to be debated in parliament and past by parliament into law which has not happened, as it is is the country is out side of the EU but the people are in the EU, it all go back to edward heath and how he illegally went about it, now the courts are trying to make it legal for parliament to take the people out of the EU, the whole point of the referendum this year was to make parliament and the people as one in the EU, instead of the country being illegally in the EU without parliament voting consent, that why parties have been putting nearly all pro EU MPs into parliament to make sure the people stay in the EU and you the people have been voting for them, i say you can only come out as you went in and that is illegally and the people have now spoken again but this time for out of the EU but now MPs want a say, they have never had a say in it nor has the country, only the people.
The people left on the 23 june 2016 because they do not want any more laws coming from the EU but now after 44 years the MPs want country to join to the EU at a time when the people have voted to leave, all i can say is, vet your MPs carefully in future and do not vote for anyone who is put in front of you by your party, a PM should be the people
choice not party choice because they can do anything they like once elected by the party.
It like the gov has been spying on your computer for 18 years illegally and is just now putting a bill of laws to parliament make it legal, that why the EU referendum was called to make it legal for the country to be in the EU after 44 years not to give the people a choice but they losted the vote which they did not think was possible.
November 8, 2016
Following up a JR Reply above:
“They [the judges] instead referred to a Library note from House of Commons staff instead of the words of the Foreign Secretary introducing the Bill”
The claimants’ lawyers dangled that briefing from the supposedly neutral Library before the judges and they readily accepted it, even replicating phraseology which had been used by the claimants’ lawyers in their own judgment, paragraph 107:
https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf
And apparently on two presumptions, that a) the author was a constitutional expert competent to give an authoritative account of the position, and b) her briefing had been read and digested by MPs prior to the Second Reading of the Bill.
On the other hand the judges don’t seem to have been similarly impressed by references to the speeches of government ministers supplied by the government’s lawyers, neither that of Philip Hammond at the Second Reading in the Commons nor that of Baroness Anelay at the Report Stage in the Lords, pages 67 – 68 here:
https://www.judiciary.gov.uk/wp-content/uploads/2016/10/20161017-all-day.pdf
Those alternative, opposing, direct influences on parliamentarians during the debates get no mention at all in the judgment, not even to dismiss them as irrelevant.
Yet when I look at the Second Reading speech by Philip Hammond:
http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150609/debtext/150609-0001.htm#15060939000001
I see him saying right at the start that the clear purpose of the legislation was “to give the British people the final say on our EU membership”, and I do not see any MP then asking how it could possibly be the “final” say when the referendum would only be advisory, as he had been reliably informed by the House of Commons Library.
I see many MPs intervening to raise many other issues, but none demanding to know exactly what the Foreign Secretary meant by “final say”, and what would be the practical consequences if the British people said they wanted to terminate EU membership?
And so on throughout his speech; even though he later repeated that “underpinning this whole process is an absolute commitment to allow the British people to have the final say on this issue in an in/out referendum”, no MP stood up to interject that they needed to get this clear, would it be the “final” say, or would Parliament have the “final” say?
Even when he said, at Column 1056:
“But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people.”
no MP reacted by saying that as the referendum was only advisory the decision would in fact be taken by parliamentarians, would it not?
In reply, Shadow Foreign Secretary Hilary Benn spoke of the profound consequences as “the people of the United Kingdom make the most important decision on our place in the world for 40 years” – the people making the decision, not the government, not Parliament – and later at Column 1064 “It will be for the British people to decide”, with no reaction from any MP objecting that it would not in fact be for the British people to decide, because this would only be an advisory referendum and then Parliament would be free to decline to take whatever advice the British people might offer.
If most MPs really did vote on the understanding that the referendum would be no more than advisory, as the judges claim, then those MPs had a strange way of showing that during a debate when their leaders repeatedly implied very clearly that as far as they were concerned the result would not be treated as just advisory, rather it would be treated as the final decision, to be taken by the people and not by parliamentarians.
November 8, 2016
Only the people have a say on the EU as written in law by royal prerogative, MPs have nothing to do with it nor do the courts or anyone else, EU laws are outside of MPs, parliaments jurisdiction, only the people have been given power over EU laws, not MPs parliament, lords and courts have no power over EU laws, if they wanted power over EU laws they should said so and debated every law from the EU in parliament, now the people have voted for out, parliament now want to take control through the courts of if the people can come out of the EU or not, you have been in the EU as people but not as a country for 44 illegally years for the country and now they all want to make the EU legal through the courts so MPs and lords can decide if you can come out or not at a time when the people have voted to leaving, it totally out of order how the people of this country are treated and if you think anything will get better out just look at your MPs with their special interest groups.
November 8, 2016
I am afraid it will soon be time to give up and admit that Brexit will not happen until the whole EU fails further in the future. A national referendum stupidly announced localised results rather than the simple national totals, the then PM didn’t follow through on his next day commitment and we are now going to see the Scottish Assembly enter into battle againt the appeal to probably argue that triggering A50 will also need Scottish support. If that happens then what?
The lack of plan for after Brexit is now turning into a lack of plan to get to Brexit. The uncertainty of how and when to get to ‘hard’ Brexit needs to be resolved so business and individuals plans can be made.
November 8, 2016
JR said – In the past Courts have been rightly wary of presuming to tell Parliament what it should and should not do.
They don’t – it tells what they can and cannot do legally! That JR doesn’t know this shows he is slipping.
November 8, 2016
Jr wries – It would also have been wise if the judges had read the leaflet sent to every household by government at taxpayers expense with Parliamentâs approval stating clearly the people were making the decision to leave or remain. They could also have read the many Hansard references stating the people will make the decision in the referendum. This was not an advisory referendum in any normal sense of that word.
What people? A small majority in a referendum? They are not sovereign – that JR does not know this is frightening!
November 8, 2016
Even if you get out of this EU deal that MPs, Lords and special interest groups set up for you, it will not be long before they look for another deal for you like the Canada deal or the TTIP deal so MPs can please there special interest groups who they work for, just so MPs and Lords can sit back without having to read or vote on laws coming into the uk which have been make outside of the uk by special interest groups which most MPs work for, this is not going away, your parties are for special interest groups in and outside the uk with their hand pick MPs in support.
November 8, 2016
JR
It seems to me that you are reasoning here as a politician in a matter of law. The fact that none of your arguments listed were used by the government’s legal representatives in high court testifies to that. I don’t blame you for thinking like a politician (that’s your job after all!) but would nonetheless expect you, as an MP, to be able to stand back from your own cause and reasoning a little more when you find yourself in territory that is mastered by another profession. As an example, bringing up the notion that government leaflets are a matter of real weight here is one of many things I would encourage you to reflect upon before you throw it out to the wider public. They respect you and see you as an authority of a kind, and with that comes a heavy responsibility.
Now, politically motivated reasoning is exactly what the judges did not do, and are not allowed to do. You distrust them, possibly because their judgement is not in agreement with your political agenda. You do not offer a single bit of evidence though that the judges were motivated by anything other than correctly applying the law as they best understand it.
Yet you appear to accuse them of wading into the politician’s territory. It is really the other way around. That is, your piece merely views the case through the prism of biased politics, and a considerable following happily/angrily then agrees. I cannot judge the readers who comment here not to know the legal facts, but I would very much judge an MP in not trying to set out the legal case as clear and accurate as possible. And in this case I would pass a rather harsh judgment on those who fail to appreciate how important it is that politicians do not give ‘green lights’ to media and commentators to viciously attack the judicial system. Do I really need to invoke the notion that this is exactly what happened in 1933 in Germany, as Phillipe Sands did by twitter, to drive the point home? I think all UK MPs should know better. Their fathers, mothers, grandfathers and grandmothers lived through (or died in) a war fighting fascists.
Although you use moderate words, you encourage people to hold inaccurate and (from what I read) misinformed views about law and democracy. Thankfully there are a few here that can see the considerable (legal) holes in your reasoning (even though they are pro-brexit). Please take note of the (legal) points they make.
To clarify the main misconceptions that are peddled not only in your writings but in many media in the UK, I quote a passage of a column by Lord Falconer in the Guardian on Friday 4 November about the facts about the high court ruling :
“There is very little doubt, when you read this judgment, that the judges have loyally obeyed their judicial oath and decided the case in accordance with the law and the facts. The principle that citizens have legal rights that cannot be taken away on the say-so of the executive without parliamentary authority was not in dispute. The question the judges had to decide was the extent to which rights given by the European Communities Act of 1972 were an exception to that principle. The court concluded unsurprisingly that these rights, which had been incorporated into our domestic law, werenât an exception, and they cited previous cases stretching back decades, which made that clear. The ruling did not say there should be no Brexit or that Brexit should be delayed, but that Brexit must be done constitutionally not unconstitutionally. As a piece of legal reasoning it is firmly rooted both in accepted principle and decided cases. The decision reaffirms well known principles and applies them to Brexit in an authoritative way.”
November 9, 2016
It’s a pity that Lord Falconer did not go to court to seek a judicial declaration on the status of the referendum before 33.5 million people decided how to vote in it on the basis of repeated crystal clear public promises made by the government without any notable public contradiction by parliamentarians. But no doubt he expected the government to win the referendum and then it would no longer be relevant whether it was merely advisory it was to be treated as binding.
November 9, 2016
Wow. what a lot of words. You must have been a clever boy.
You’re wrong.
November 11, 2016
My father fought the fascists in order to stop totalitarian rule. After being stitched up by lawyers several times after the war, he came to believe that lawyers and a totalitarian civil service ran the country and that, if we had been run by the same people during the war, we would have lost it. Plebs do not need JR’s words to persuade them to mistrust and dislike lawyers. Parliament must put them in their place- as not too highly paid clerks.
November 8, 2016
As for the US election, 16 states in the USA have had voting machine sent to them from the uk which are run by chips, the chip already has the result before voting starts, so it does not matter what you put into the machine and i think i am right in saying they are all in swing states but the people in the USA have already been on to this for months and been asking for the machines to be replace and vote to be done by hand as usual, some areas are getting their wish but not all, that where we are in the world today.
November 8, 2016
Oddly, today as previously, voting machines were found to automatically change a Trump vote to a Hilary vote. A computer “glitch”,.It has never happened, as far as I am aware, for the opposite. Conclusion: Computers have attained consciousness and thankfully are all Democrats.
November 8, 2016
I think you have done very well JR in keeping your readership interested and open to judicial opinion. Time is short.
November 8, 2016
Junker must be having a good laugh over all of this. Can we get nothing right? It has all the elements for a good comedy. Funny how none of us are laughing. Only British politicians could muck things up this much.
November 8, 2016
Off Topic:
In America they break up their analyses into Latinos, Afro-Americans, White working class, Middle class, Blue collar, Black, Women, Millennials, White Vote, Black Vote.
They never ever ever, muse on ” How many Afro Americans, Latinos,Blacks, ASIANS will vote for the white, female, old, ridiculously wealthy Democrat Party’s Hillary Clinton. Well we’ll find out. But if Trump wins they will concentrate on who voted for him but not on who did not vote for her.
November 8, 2016
Errors of the high court judgement about article 50 (yes I agree …)
As UK appeals Article 50 Ruling, the European Parliament consider plans for Brits opposed to Brexit to remain EU citizens … now this is going to throw things up in the air
Brits opposed to Brexit could be offered a route to remain EU citizens under new plans being considered by the European Parliament. A proposal has been put before a parliamentary committee, to allow citizens of former member states the chance to apply for âassociate citizenshipâ. It means Brits could be able to keep benefits afforded to EU citizens such as free movement across the union and a vote in European Parliament elections. Luxembourg MEP Charles Goerens, has put forward a proposal to be considered by the European Parliamentâs Constitutional Affairs Committee.
So how exactly is a associate passport holders going to work post-Brexit considering restriction & conditions would apply to non-UK citizens!
Wouldn’t this mean that this new immigration group be treated as foreign nationals residents within the UK, and have to revoke their british passports or will this become a dual-citizenship, and will this new group become stateless since (EU is not a country, it’s a system), will stateless citizens and their dependents also have to become a citizen of one of the 27 EU european countries.
I’m wondering how all of this is going to pan out, the EU creating a complex divide in UK,
How will this grouping be affected in the long-term . If 16 million people voted Remain people, (size of a city) become foreign nationals within in UK
How does this impact 17 million who voted to Leave EU regarding future voting,
How does this impact transfer and reclassification 16 million people will become EU migrants, which will be impacting UK immigration system – post-Brexit EU migrant quota for high-skilled workers
How does associate citizenship affect their existing / future status:
double treaty taxes, UK taxes, NI, state pension, mortgages/renting, public services access NHS, Schools, University, financials (insurance, savings), entitlement to vote in the future etc.,
November 9, 2016
The independence of judges does not mean that they are either impartial or infallible.
Judicial history is littered with examples of incorrect decisions.
Do judges have to declare and record their interests (financial or otherwise) on a publicly accessible register just as MPs must ?
If not, perhaps it is time they did and also ruled themeselves illegible where there is conflict of interest.
The HOC voted 6 to 1 to give the decision on the UK’s membership of the EU to the people via a referendum. This means that Parliament handed over their sovereignty for this issue to the people.
The country voted to exit the EU and hence no further action is required by Parliament for the government to enact the will of the people to leave the EU.
November 9, 2016
The triggering of Article 50 has again brought up the issue of whether or not the HOL has a mandate to amend and block legislation or government or even referendum decisions.
It is not democratic for any party to have a percentage of peers far in excess of the percentage of their vote in the last GE.
In order for a fair balance of parties to be achieved it is not necessary to effect a wholesale reform of the HOL. It is only necessary to restrict the ability to vote to those selected by each party in numbers set according to the percentage of votes cast in the GE.
The government can set the total number of voting peers and each party can nominate their own peers up to a maximum set by their proportion of the total vote in the GE.
This could apply to all parties who achieve 5% of the GE vote or more.
Peers without a vote could still take part in debates if they so wished and will continue to enjoy the benefits of being a member of the HOL.
November 9, 2016
Even if the Appeal Judge’s verdict goes against the Government, if the Government “sticks to its guns” then Brexit will take place.
The majority of Remainers do not like the EU and were duped into thinking that the EU could be reformed. So their opposition is soft.
As the Euro and illegal immigration crises worsen both the financial and social cohesion of the EU countries, and the full effects of QMV (UK : 8.4% currently and reducing as the EU expands) start to apply in March 2017, the EU’s unpopularity will increase still further.
The arch UK Remainers will also be given instructions by the EU to give up the battle as the EU itself is keen to end this period of uncertainty and wants to eject the UK so that it can push more quickly forward with its goal to achieve a single EU state.
The EU are fully aware that the only reason the UK joined was to prevent the formation of this single state, as was explained in Nick Robinson’s BBC documentary “Europe : Them or Us”.
November 11, 2016
John Redwood.
Your observations are long on rhetoric and short on fact. The Brexit referendum was advisory. The underlying primary legislation did not give the government the prerogative power to act on the referendum result by repealing the 1972 Act in order to leave the EU without appropriate approval by Parliament. The challenge to government’s use of prerogative powers was brought in the courts of England and Wales, but it will be heard on appeal by a Supreme Court with jurisdiction over the court decisions of the entire United Kingdom.
I’m sure that you’re aware that the notion of parliamentary sovereignty is one of the pillars of our constitution alongside the rule of law. The power of Parliament as supreme as against the power of the royal prerogative to repeal primary legislation was a central issue in the English Civil War. The Bill of Rights which followed it enshrined the notion that only Parliament can unmake its own laws. The Case of Proclamations is a long established precedent which gives the courts the jurisdiction to decide just this kind of case. Given the exercise of power under judicial scrutiny in light of these established constitutional principles, it is hard to see how the judiciary can be criticised for exercising its jurisdiction and, indeed, how the government can win the appeal in December. I ask that when the judgment is handed down in January, you refrain from the sort of histrionics displayed by some politicians following the recent High Court decision.
It is disingenuous of you to dismiss the court’s jurisdiction in your post. Furthermore, you have a duty as an MP and member of the governing party to ensure that you are not misleading the population at large as to facts concerning important questions about constitutional powers.
It is obvious that the desire of those ardently wishing to leave the EU to ringfence the vote on 23 June favoured by 37% of the electorate might sometimes overcome the necessity to look at the decision and and its effects in practice with cold pragmatism. This approach is necessary if the best interests of the UK are to be placed at the centre of the decision to leave the EU.
Therefore, I ask that you exercise more circumspection in your position of influence in respect of constitutional arrangements in the UK and what might be the pragmatic answer to the question of what is in the best interests of the United Kingdom.