The Supreme Court and the High Court of Parliament

In the very week that the Supreme Court solemnly considers a case about whether Parliament should debate and vote on an Article 5o letter or not, Parliament holds a debate and a vote on just that topic.

I have explained endlessly to those interested that Parliament can any time debate and discuss Brexit. Indeed, it has chosen to do so on many occasions since the vote, despite the lack of any news as the government awaits the moment to start the process and to announce its negotiating aims. It has not yet had a vote on the procedure for the reason the Opposition did not want one and did not table a suitable motion to hold one.

Treaty issues have long been left to Ministerial prerogative by Parliament for the simple reason that you cannot handle a negotiation successfully with 650 different voices all setting out a position. As this week’s Opposition motion states, it does not help for Parliament to demand that government reveal its bargaining and fall back positions. When Ministers are negotiating Treaties Parliament debates and votes as it sees fit, but leaves all the work and the detail to Ministers. Parliament does not usually want to undermine the national interest by demanding information helpful to those we are negotiating with.

Throughout our time in the EEC/EU Ministers have regularly used prerogative powers to bind us into EU decisions, regulations and judgements which Parliament has been unable to vote on or prevent. Many of these have adversely affected our right to be a sovereign and free people. It was curious that the High Court of England thought that was acceptable yet using the same prerogative powers to bring the right to self government back was not.

I hope the Judges understand three basic points. The first is the referendum was the decision. Government made that clear in Parliament and in a leaflet to all voting households. The second is Parliament can debate Brexit any time it likes, and has done so extensively already. The third is Parliament needs to make up its own mind on what it wants to vote on, and is free to do so.There can be plenty of votes on the Repeal Bill.

The main method of taking the UK out of the EU is the repeal of the European Communities Act 1972. This will be a thorough Parliamentary process, ensuring MPs are fully engaged.

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121 Comments

  1. Leslie Singleton
    Posted December 6, 2016 at 5:40 am | Permalink

    Dear John–Excellent article but please may we have “…to demand that the government reveal…” rather than the illiterate “reveals”? You are bending to the will of online News editor types who are apparently unaware of the subjunctive: let’s hear it for the pedants!

    • Hope
      Posted December 6, 2016 at 4:37 pm | Permalink

      JR, it appears from a subsequent reply of yours, that Hague and Cameron were not accurate/truthful to younwhen one considers the wording of the AV referendum and comments made todai court. I am surprised you and others did not push them on it. Highlighting once more the problem rests in your party. Hopefully you will not be fooled by May and chums!

    • nigel seymour
      Posted December 6, 2016 at 5:32 pm | Permalink

      Why not just wait for all the water to have passed under the political bridge come end March…

      • Leslie Singleton
        Posted December 7, 2016 at 11:37 am | Permalink

        Dear nigel–How many answers would you like? The mere passage of time is becoming the kiss of death, creating serious problems out of thin air in the simple goal of giving effect to the Referendum result–Of course if you hope that delay will scupper the whole thing it might look different.

  2. Sam Stoner
    Posted December 6, 2016 at 6:08 am | Permalink

    This is to misunderstand the very basics of British constitutional law.
    First, the referendum was not legally binding. Parliament could have made it so but chose not to do so. We do not make law in this country by ministerial statements or leaflets. Second, Parliament can indeed debate Brexit any time it likes, but that point is wholly irrelevant to the court case, which concerns legislation as a pre-condition to sending an Art 50 notice.
    I thought LEAVE believed in the sovereignty of parliament and I am baffled why any LEAVER would support Mrs May’s attempt to treat the executive as superior to parliament

    Reply Nonsense. I just want the government to send the letter, and believe there is a clear majority to do so. The Opposition has declined to table a motion to stop it!

    • alan jutson
      Posted December 6, 2016 at 12:09 pm | Permalink

      reply-reply

      This must be the most expensive and delayed letter in history, so far the delay has cost about £5 Billion in a further 6 months EU contributions, and goodness knows how much in legal fees.

      David Cameron certainly left a legacy !!!

      • Leslie Singleton
        Posted December 7, 2016 at 11:43 am | Permalink

        Dear alan–And in many more ways than one–Was it not he who wanted the EU to expand to the Urals? Did he not appreciate that that wasn’t too realistic given that it would have meant splitting Russia in two and that the Russians might have objected to that? I often find no trouble at all understanding why the Russians feel oppressed.

    • rose
      Posted December 6, 2016 at 12:15 pm | Permalink

      How can Parliament be sovereign if the judges are now to tell it what to do?

      The Law Lords would have thrown this case out.

      The Northern Irish judge showed he understood the Constitution.

      • rose
        Posted December 7, 2016 at 9:57 pm | Permalink

        The most worrying thing the apparently humourless and priggish Lord Neuberg has said so far is that what people say in Parliament doesn’t count, because otherwise you would have to take account of everything said in Parliament. While one can see the crazy logic of his tetchy remark, one does wonder how such a position can inform a judgement on whether and what to tell Parliament to do. What the PM and Foreign Secretary said in Parliament on this matter should be vital evidence.

        First the Referendum didn’t count; now what the PM and Foreign Secretary say doesn’t count. Nor does anything else said in Parliament. One is left supposing the only thing which counts is what lawyers have said.

        • rose
          Posted December 7, 2016 at 9:58 pm | Permalink

          Sorry, Neuberger.

    • DaveM
      Posted December 6, 2016 at 12:15 pm | Permalink

      Sam,

      This is precisely why some people are p****d off. Twisting, turning, bending, (mis)interpreting the law. We all know that it is do with the spirit of the whole legal wrangling.

      The bottom line is that the Govt voted to offer a Referendum on the clear understanding that the result would be abided by. The Referendum returned a Leave result, therefore the govt should follow whatever procedure is required to action the Leave result. As soon as possible.

      Yet some people didn’t like the result therefore they are using every trick in the legal book to delay, reverse, whatever – using lots of taxpayers’ money to do it.

      The precedent set by this could be dangerous. Do we refuse to accept local, county, GE results until they have been through the court system?

      The papers and commentators and MPs accept that the Brexit vote, as well as numerous votes in EU, local, etc elections were in some ways a vote against the detached governing bodies (sorry, can’t bring myself to call them “elites”) and yet these bodies are continuing to pusue their own agenda thus p*****g of the electorate even more!!!!

    • Denis Cooper
      Posted December 6, 2016 at 1:16 pm | Permalink

      It would have been difficult, but not impossible, for Parliament to pass legislation for a referendum the result of which would legally bind Parliament beyond any possibility of it later releasing itself.

      Even if the referendum Act had said that in the event of a vote to leave the EU the government must proceed to serve the Article 50 notice, which it could and should have done, in principle it would still have been open to Parliament to amend that Act after the referendum had taken place with the “wrong” result, and so stop the government sending in the notice, provided of course that it acted quickly enough to stop the letter being sent. There is no question about that.

      (I say “difficult, but not impossible” because in fact there is at least one way in which Parliament could have entrenched the referendum Act so that it could not later be amended unless the people had agreed to that in another referendum, but that has not been seen as an acceptable mechanism in the past.)

      However while the referendum was not legally binding it was presented to both 1400 parliamentarians, and 46.5 million voters, as being politically binding, and the parliamentarians did not object to that at the time.

      They could easily have done so, they had opportunities to say to the government:

      “Hold on, it seems you’re thinking that if the referendum vote is to leave the EU then you should be able to send off that Article 50 notice without coming back to us first, and we don’t agree with that idea, so here is our amendment to the Bill to make sure that you wouldn’t be able to do that.”

      But they didn’t; either they weren’t paying proper attention, or they just couldn’t be bothered to stand up for the rights of their own Parliament.

      And in fact so far it is only a minority of parliamentarians who have been actively objecting to the government doing what it promised it would do; unfortunately they may be sufficiently concentrated among the unelected legislators-for-life in the Lords to delay any new Act to authorise the government to do it.

      I don’t how you’d feel about that, whether you’d be happy to see the result of a national referendum set at nought by an unelected chamber.

    • Dougie
      Posted December 6, 2016 at 1:33 pm | Permalink

      The passing of the Referendum Act pre-authorised triggering Article 50 in the event of a Leave win. If you think the referendum is genuinely advisory, try imaging Remain had won but the Government had then said, “You know what, it’s only advisory so we’re going to trigger Article 50 anyway”.
      If you’re baffled now, try to work out why the High Court thinks the appropriate way to support the sovereignty of Parliament is by telling Parliament what to do. That’ll make your head spin.

      • Sam stoner
        Posted December 7, 2016 at 7:45 pm | Permalink

        The court is not telling parliament anything, nor is it being asked to do so by Ms ?Miller. It is the government that is in the dock, not parliament

    • Roy Grainger
      Posted December 6, 2016 at 1:38 pm | Permalink

      So you are saying that amongst all the other disgraceful lies the Remain campaign told the biggest one was the letter I got from the Prime Minister saying it was our decision and parliament would implement what we decided ? Why did no one on the Remain campaign clarify this during the campaign ?

    • Ratcatcher
      Posted December 6, 2016 at 5:24 pm | Permalink

      What you choose to ignore is that the UK Parliament is not free to decide the laws of Britain, they are proposed and decided upon in Brussels in secret and presented as a fait a complet to the UK who have no recourse but to nod their assent on pain of being fined by Brussels for non compliance. Article 50 has to be triggered to start the negotiations for leaving, not the other way around, this much must be obvious to you but this you have also ignored.

    • Sam stoner
      Posted December 6, 2016 at 6:45 pm | Permalink

      If there is a clear majority, Parliament can legislate.

      That it is how UK law works.

      • Denis Cooper
        Posted December 7, 2016 at 11:11 am | Permalink

        Majorities, plural, in the Commons and in the Lords. That is what Baroness Wheatcroft and other bad losers are relying upon, that as well as MPs the Lords will also have to pass a further Bill to authorise the service of the Article 50 notice, and they hope the unelected legislators-for-life can create enough delay that in the end the popular vote in the referendum is overturned and we never leave the EU. That’s their idea of democracy.

    • Robinson
      Posted December 6, 2016 at 11:37 pm | Permalink

      I don’t think May is treating the executive as superior to Parliament. She’s simply following the rules as she (or more correctly, her legal advisers) understand them. The Supreme Court is going to decide whether or not that advice is correct.

    • graham1946
      Posted December 7, 2016 at 11:40 am | Permalink

      Sam Stoner.

      ‘This is to misunderstand Constitutional law’.

      You seem to misunderstand basic English

      The Oxford English Dictionary defines a Referendum thus:

      A general vote by the electorate on a single political question which has been referred to them for a direct decision. Note the word ‘decision’. Not advisory. Not if you don’t like it. Not if Remoaners don’t like it. A decision.

      In latin it means something to be referred. Not an opinion, but asking for a decision.

  3. Richard1
    Posted December 6, 2016 at 6:30 am | Permalink

    Mr Carney says it’s the first ‘lost decade’ since the 1860s. Fastest growth in Europe, employment at record high, living standards incomparably higher than in the 1860s (or 1930s or 1970s) – it seems strange language. Perhaps as the ‘decade’ starts to be measured from low points in 2009-11 instead of high points like 2007, it will suddenly all seem much better?

    • Mark Watson
      Posted December 6, 2016 at 8:16 pm | Permalink

      He didn’t sound especially convinced by his own speech though looked like he was about to fall asleep.
      Must have been a freebie.

    • Ian H
      Posted December 8, 2016 at 10:12 am | Permalink

      Completely agree, also we have had the lowest interest rates ever during the last 10 years so logically wage growth should have been equally low.

  4. Lifelogic
    Posted December 6, 2016 at 6:36 am | Permalink

    You make exactly the right points.

    There is much talk (especially on the BBC) about the judges merely interpreting the law and they should not be criticised for it. Yet we see endlessly that the law can be a flexible as was Cameron’s cast rubber guarantee or Osborne’s IHT promise/lie. Judges very often simply decide what outcome they would like to see and then bend & twist the law to justify that outcome. In many respects it is like a Bible you can find something to support any viewpoint if you look hard enough.

    We often see this in for example eviction cases where the judges just feel sorry for the tenants and thus fail to evict regardless of the law, the lack of rent or the terms of the tenancy. Also in the criminal damage done by green protesters let off on the dubious (at best grounds) that they were doing some higher good by their vandalism.

    This is also why judges (and the different layers of courts) are totally unable to even agree even among themselves. This of course is all profitable extra work for lawyers as of course is the EU. Perhaps why the judiciary and the legal profession are nearly all in favour of more EU, more laws, more red tape and more litigation and compensation. In general this make nearly everyone but themselves worse off. It also lowers the overall productivity of the country.

    With a sensible system we could easily manage with about 1/10 of the lawyers we have as some countries do and we would be far better off and more competitive as a direct result. The lawyers could all be released to get a productive job that actually generates wealth, instead of just arguing over others’ wealth as they mainly do.

  5. JJE
    Posted December 6, 2016 at 7:05 am | Permalink

    Debating isn’t the same thing as passing legislation, is it?
    The referendum result by itself has no force in law. In order to give effect to the outcome and make good on the promises that were made to invoke Article 51, Parliament needs to pass legislation. That’s your job.
    Saying you can do your job any time you want isn’t the same as actually doing it. I can paint my lounge any time I want – but until I get off my backside and do it it’s going to stay the way it is.

    • Denis Cooper
      Posted December 6, 2016 at 11:07 am | Permalink

      The nub of the case is whether Parliament needs to pass MORE legislation before the Article 50 notice can be served, or whether the government can go ahead in the light of existing legislation and keep the promise that it made to the people.

      MPs were told in terms that if we voted to leave the EU the government would go ahead and serve the Article 50 notice without any further parliamentary process, and basically the only parliamentarians who have been saying that there should be fresh legislation are those who are hoping that it would be blocked, especially by the Lords, and so we would end up being kept in the EU.

      Baroness Wheatcroft has been open about this intention:

      http://www.prospectmagazine.co.uk/opinions/a-rebellion-in-the-lords-brexit-article-50-referendum

      “With no constituents to fear and a conviction that remaining in the EU and helping it reform would be a much better option than plunging into the unknown, they would defy the whip, which cannot inflict the same pain as it does in the Commons. The Lords would be resoundingly “not content” and could remain a blockage to the legislation for up to one year.

      Much might change in that time. The EU might even concede that the UK was not the only country which needed to see some curbs on free movement and make changes. Then their lordships might argue that there was a good reason to call that second referendum and hope for a very different result.”

      This is nothing to do with defending the sovereignty of Parliament, as is being claimed, rather it is all to do with preventing our withdrawal from the EU.

      • a-tracy
        Posted December 6, 2016 at 12:24 pm | Permalink

        Denis, your penultimate paragraph sums up my thoughts.

        However, the European leaders and negotiators are doing their level best to ensure relationships sour past the point of any return:
        Cutting May out of party that we’re financially fully contributing to (I hope we insisted they put their hands in their own Countries financial pockets to pay for this exclusion meeting/party/reception).
        Wanting to start their army (that we were told was never going to be started) this cannot be started until we leave, however, in the meantime they can start individually preparing and contribution their 2% to defence spending and NATO.
        Then “sources in Brussels say they expect “very, very hard lines” from the Commission and the 27 remaining EU members” Telegraph today.

        Denis, did parliament vote on whether Gordon Brown signed the Lisbon Treaty or not? Did parliament agree with Tony Blair’s plan to open up total free movement without any restrictions as Germany and others did as PVL reminded us in a comment recently?

      • JJE
        Posted December 6, 2016 at 1:12 pm | Permalink

        Watching the live stream of the case I thought that point was put very effectively just before the lunch adjournment and some of the judges at least were persuaded (and perhaps relieved) that as a result of the referendum and the constitutional principle of democracy it could not be taken to be an abuse of the Government prerogative to invoke Article 51.

        So I’ve changed my mind on the outcome and I think the appeal may well succeed.

    • Lifelogic
      Posted December 6, 2016 at 2:57 pm | Permalink

      Even passing legislation often does more harm than good. It is not a substitute for running government efficiently. Something politician and bureaucrats almost never do.

      • Lifelogic
        Posted December 6, 2016 at 2:58 pm | Permalink

        Or even try to do.

    • getahead
      Posted December 6, 2016 at 7:53 pm | Permalink

      “The truth is the Government passed an Act, an Act of Parliament, which gave the British people the right to make the decision about whether we stayed or left. That is not advisory, it’s absolutely clear that decision was a binding decision.

  6. Mark B
    Posted December 6, 2016 at 7:14 am | Permalink

    Good morning.

    The question here is, one of will.

    Parliament lacked the will power to prevent the government doing what it wanted. Similarly, we now have a parliament that lacks the will to implement what the people want.

    When you have a government that is made from the legislature and, those in it seek higher office through patronage of the PM, then you have a legislature that is effectively held hostage, and therefore under control, of the executive. This coupled to the fact that some 100 MP’s are compelled to vote with the government or lose their position.

    When you take all that into account no wonder we the people can be effectively shafted by a small elite.

    The EU is nothing more than a symptom of our problem. The problem of course, as we are now seeing, is much, much closer to home.

    If the government wins, and I actually hope they do not, expect this to go to the Lords and / or the ECJ.

  7. Ex-expat Colin
    Posted December 6, 2016 at 7:36 am | Permalink

    Ah but…the complainant (and VI mates) has gone to court because she needs to see some sort of correct process. So really parliament has little purpose? The concern is the costs of this piece of mischief related to the tax payer again!

  8. alan jutson
    Posted December 6, 2016 at 7:52 am | Permalink

    You make it sound so simple John !

    Perhaps the Governments expensive legal advisors (experts) can convince the Court that this is indeed the case in point, so we can all move forward.

    Certainly if the Court decides otherwise, it would seem our so called constitution is in a real mess.

  9. Roy Grainger
    Posted December 6, 2016 at 8:01 am | Permalink

    When they kick off with a statement about intimidation of the Remoaners bringing the case you know The Supreme Court case is lost already, May needs to plan what happens next. Note also that the Court has only invited submissions from rabid Remoaners such as the SNP. Incidentally, who exactly are The Independent Workers Union of Great Britain ? Why have no Brexit supporting unions been called too ? The best May canb hope for is that they don’t further complicate matters by requiring A50 approval by the Scottish Parliament or total replacement of the 1972 act as a prelude to A50.

    • rose
      Posted December 6, 2016 at 12:20 pm | Permalink

      The most nauseating part of Lord Neuberger’s politically tinged preamble was his insistence that the court be open to all – i.e. all billionaires!

  10. acorn
    Posted December 6, 2016 at 8:06 am | Permalink

    A while back, I commented with the following from Thomas Fairclough. Concerning the separation of domestic law and international law.

    He argued, ” … it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union. The ECA did not change this, default, position. It did not provide for the United Kingdom to become a signatory to the European Union, it merely replicated our international obligations in the domestic sphere. We negotiated and joined the European Union through the Royal Prerogative, and we will negotiate and leave the European Union through the same.

    That is not to say that Parliament has no role; indeed, I hope that Parliament makes its feelings well known to whoever the Prime Minister is at the relevant time, both in relation to when to trigger Article 50 and the content of the negotiations that follow thereafter. Nothing in this piece is to detract from that; all it seeks to do is locate each branch of the state in its proper setting.”

    Is it not time we properly separated the three pillars of democracy (1,2 and 3) and elected all three separately? (1) We could elect a Prime Minister who would appoint an Executive / cabinet of learned persons from the citizenry and separate from (2), the elected Legislature, (HoC, HoL whatever). And (3), elect the top few levels of the Judiciary?

    We could legislate to put international law and all Royal Prerogatives with the Executive and keep it constitutionally separate from domestic law and statutes.

  11. Hope
    Posted December 6, 2016 at 8:20 am | Permalink

    I thought the opening statement asking if there objections to any of the judges could be viewed two ways: wanting open transparent justice, the other a sinister challenge to the AG if he dared to challenge the composition of the court. There was no need to make this statement if the judges are impartial as claimed, secondly they must have considered comments of bias made against them. In which case they should have excused themselves without putting pressure on anyone else to uphold the standards from them and what we should expect from justice. For me the question raised by the court was enough in itself for the court to recognize there was an issue and one they ought to have acted upon.

    • Monty
      Posted December 6, 2016 at 5:59 pm | Permalink

      I’d very much like to know if the following questions have been raised prior to the start of these proceedings:
      (i) Are any of the presiding judges in receipt of any payments (stipends, pensions, allowances, whatever…) from the EU?
      (ii) If they are, are there any conditions attached to those payments?
      (iii) Have any SC judges recused themselves from the hearing due to conflict of interest?

  12. oldtimer
    Posted December 6, 2016 at 8:34 am | Permalink

    Agreed.

  13. Anonymous
    Posted December 6, 2016 at 8:35 am | Permalink

    The judiciary should not be involved but if there is any single thing that has caused Brexit and for them to be brought to loggerheads with the public it is their activism under the Human Rights Act.

    So here it is. Judges vs The People. Decades of having our noses ‘rubbed in it’ has brought us to this.

    The Daily Mail is right to question the political orientation of those on the bench. Peter Hitchens is right to say that those who campaigned for Brexit have dissolved away. The campaign was the easy stage – regime change is another thing altogether, as always.

    A bit of give on the Remain side is all it would have taken to have avoided all of this.

    • graham1946
      Posted December 6, 2016 at 1:19 pm | Permalink

      Even if the judges vote to reverse the High Court decision, it won’t end there. By the time Ditherer May has thought about it there will be appeals to the European courts too, with years of delay. We are not leaving. Better get used to it.

    • Mitchel
      Posted December 6, 2016 at 1:37 pm | Permalink

      “Judges vs The People”.

      It’s worse than that given how entrenched the opposition is across the Establishment,it’s the State vs The People.

      Robespierre’s colleague on the Committee for Public Safety,Louis-Antoine de Saint-Just,cautioned let revolutionists be Romans,not Tatars.He was guillotined so perhaps he should have been more of a Tatar.

    • Anonymous
      Posted December 6, 2016 at 1:47 pm | Permalink

      Leavers did not want this Judges vs The People situation. It is Remain who caused it.

  14. ChrisS
    Posted December 6, 2016 at 9:03 am | Permalink

    All that I have read, including this excellent piece, indicate that this court case is a red herring.

    Everyone, inside Parliament who opposes Mrs May being able to trigger A50 herself, prefaces their argument with “Of course we respect the decision of the people but.”

    Well it’s obvious to anyone that they simply don’t.

    Although they deny it, their entire purpose is to thwart the wishes of the people clearly expressed in the referendum.

    Given the make up of the judges in the Supreme Court, I hold out little prospect of their coming up with the right answer, however strong the legal argument of the Government side.

    Over Brexit we have the united establishment at work, The Civil Service, Big Business, Commons Remainers, LibDem and Labour Peers and worse of all eleven judges, many of whom, with clear and well proven ties to the EU, all wanting to keep us in the EU at almost any cost against the expressed wishes of the electorate.

    The blame for the current impass lies with Cameron. He stated with commendable clarity that he would declare A50 in the morning of the 24th June if he lost but then didn’t. By the time Mrs May took power, the court case was already in train and it was too late.

    History will not treat him kindly, methinks.

  15. Ian Wragg
    Posted December 6, 2016 at 9:10 am | Permalink

    John. The Supreme Court is the pinnacle of the establishment. There is no way we are going to get an impartial verdict.
    The great and good are fighting for survival and will use every trick legal or not.
    Now we have May indicating that we may pay for the privilege of maintaining a £70billion deficit.
    We are about to be royally stitched up.
    As Farage says 2020 could be toxic

    • graham1946
      Posted December 6, 2016 at 1:16 pm | Permalink

      Ken Livingstone said that if voting ever changed anything they’d ban it. Seems like referenda with the wrong result fall into that category too.

      On the subject of paying for access to the market, which it looks like we are being softened up for with the odd dropped hint, what are we going to charge them for access to our market? A quid pro quo of a billion each way would surely be acceptable, so zero out and in. They’d be quids in.

    • miami.mode
      Posted December 6, 2016 at 3:52 pm | Permalink

      IW

      Richard Littlejohn probably has the best take on it in today’s Daily Mail when he writes that over the weekend these “supreme beings” reportedly had a practise walk of their ceremonial entrance, presumably so that they looked good on TV. It seems more about them than us!

  16. Iain Moore
    Posted December 6, 2016 at 9:10 am | Permalink

    It is not only the Judges who need to be reminded about this, but MP’s do as well. My MP, Claire Perry seems to be running an obstructive anti Brexit line even though Wiltshire voted 52.4% vs 47.6% for Brexit.

  17. agricola
    Posted December 6, 2016 at 9:12 am | Permalink

    The wish for open debate on the minutia of Brexit comes from those who would wish to thwart the will of all those who voted for it. They make the hollow gesture of saying they accept the Brexit leave vote because they know that to say otherwise would put an end to their parliamentary careers come the next election. They wish to pick over the entrails of the negotiating position to covertly dilute it to their own liking. Be in no doubt, there is at least one opposition family who will fight tooth and nail to protect their pensions accrued from past involvement with the EU. There are many individuals in the same position who will support them as they see an end to their “Nice little earner”.

    Once the immediate problems of can we can’t we over invoking Article 50 are over, my advice is to get on with it by telling the EU what is going to happen. This I would suggest is a clean divorce from all thing EU including all variations on how we might trade with them except unencumbered tariff free trade in both directions. The ball is then in their court, accept the reality or not. Once that is out of the way they can then discuss areas of cooperation that do not question the absolute authority of a sovereign UK. I would suggest that getting it wrong will put the future of this government and the conservative party in grave danger.

  18. Bert Young
    Posted December 6, 2016 at 9:14 am | Permalink

    Supremacy in the end finishes with Parliament – the elected place of the people . Parliament could decide to dispense with the High Court or the Supreme Court if there was good reason to do so and a majority supported the move . There are intricacies of the Law – a veritable minefield to the average person , therefore good reason to have an overseeing body , nevertheless , impartiality within such a supervising body is possible and it is this aspect that concerns me now.

    From the published backgrounds of the Supreme Court Judges there would appear to be a bias to European regulations – many have been involved in the creation and implementation of them . This experience could influence any judgement reached and I dislike this probability . I would be far happier if the assembled body of the Supreme Court was selected from judges with no previous connection with European legislation. As it is I consider that it should be left entirely to the will of the House .

    • rose
      Posted December 6, 2016 at 12:24 pm | Permalink

      I think you would be very hard put to it to find a judge innocent of EU involvement. There may be some. There is an article in the Spectator at the moment by William Cash which paints a most depressing picture of just how global our legal system has got.

  19. JoolsB
    Posted December 6, 2016 at 9:16 am | Permalink

    Why the hell wasn’t article 50 triggered months ago? All this could have been avoided if our self serving politicians had acted immediately on the British public’s wishes instead of finding ways to avoid doing so.

    • Denis Cooper
      Posted December 6, 2016 at 10:47 am | Permalink

      We voted on Thursday, the result was known on Friday, and the first application for judicial review went in when the courts reopened on Monday. For all I know it may have gone in within minutes of the doors of the building being opened …

      So there was only that very narrow window for the promised action* before the government had to start paying due respect to the courts by not acting while legal proceedings over its power to act were still in progress.

      Which, it should be added, is why it is wrong to blame Theresa May for not putting in the notice when she became Prime Minister three weeks later.

      * Cameron statement to Commons, February 22nd 2016, Column 24 here:

      http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160222/debtext/160222-0001.htm#16022210000001

      “If the British people vote to leave, there is only one way to bring that about, namely to trigger article 50 of the treaties and begin the process of exit, and the British people would rightly expect that to start straight away.”

      • oldtimer
        Posted December 7, 2016 at 10:09 am | Permalink

        Of course Cameron promptly resigned triggering the Conservative leadership election. In those circumstances who would or could write the letter triggering Article 50 in the absence of a known successor to Cameron? Cameron obviously would not (a) because he disagreed with it and (b) he could reasonably say that should be a decision for his successor.

        The timing of these events suggests to my suspicious mind that this was carefully forethought to leave us in the position we now are – to buy time for the Remainers to delay and frustrate the referendum decision. There are plenty of pro Remain lawyers inside and outside Parliament able to think through the implications of a Leave vote and to devise this contingency plan for immediate action at the first available opportunity. The unknown is whether Mr Cameron was aware of and complicit with this plan.

    • Tweeter_L
      Posted December 6, 2016 at 11:02 am | Permalink

      Yes. As a former constituent and supporter of David Cameron it gives me no pleasure to say that I hold him responsible for much of this mess: instead of delivering the A50 letter straight away as he promised, he walked away. The “remain” side has been allowed too much space & time in which to fret over it all, with most of the media now slavishly echoing fabricated concepts like “soft v hard” and “this wasn’t a vote on the EU it was a protest against the establishment”. I’m beginning to despair.

      • fedupsoutherner
        Posted December 6, 2016 at 11:54 am | Permalink

        @Tweet_L Only just beginning to despair??? Where have you been?

      • rose
        Posted December 6, 2016 at 12:28 pm | Permalink

        He must have panicked because he had told the Civil Service not to prepare for Exit. He just didn’t know what to do. But all he needed to do was swallow his pride and bring into government all the people who did know what to do, many of whom, alas, are still on the back benches.

    • fedupsoutherner
      Posted December 6, 2016 at 11:57 am | Permalink

      Jools.B Because it suits the government not to and because they never thought the vote would go the way it did. They thought we would all cower down like the subservient subjects they would like us to be and we didn’t. Just as millions all over Europe are starting to do.

    • DaveM
      Posted December 6, 2016 at 12:19 pm | Permalink

      Absolutely JoolsB.

      I (and no doubt several million other people) are starting to grit teeth and hiss “JUST GET ON WITH IT”.

    • Lifelogic
      Posted December 6, 2016 at 2:53 pm | Permalink

      Or had Cameron ensured the referendum was clear binding and had a plan for either outcome.

  20. Denis Cooper
    Posted December 6, 2016 at 9:17 am | Permalink

    Well, Parliament may claim to be the supreme legal authority for the UK:

    http://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/

    but nevertheless like a weeping damsel in distress apparently it is helpless to defy the power of a tyrannical government unless white knight judges ride to its rescue.

    Absolute load of tosh. The day after the referendum the leader of the main opposition party in Parliament called for the government to immediately trigger Article 50:

    http://labourlist.org/2016/06/corbyn-article-50-has-to-be-invoked-now/

    He could have demanded that Parliament must hold an emergency debate as soon as possible to consider the correct course of action after the result, and in the meantime the government should stay its hand and hold back from doing anything precipitate or irreversible; but he didn’t, he told the government to get on and trigger Article 50.

    It is people outside Parliament, plus a few inside, who have gone to court to ask judges to tell the government to stop oppressing poor old Parliament and allow it to have another vote on this, despite the many hours of debate and many votes prior to the referendum, while trying to egg on parliamentarians to overturn, or at least dilute, the result.

    The paradoxical fact that some of these people, and the judges themselves, owe their public positions as the exercise of the same Royal Prerogative which they deride as an archaic hangover from feudal times, seems to have gone unnoticed.

  21. michael
    Posted December 6, 2016 at 9:22 am | Permalink

    Never have so many lawyers been crammed into a court room. The legal profession has never had it so good. BREXIT is proving to be a money maker. They are like children with a new train set.

    Since the Referendum exiting opportunities have opened up for the profession and (since lawyers do what lawyers do) they are looking out to raise futher complications, caveats and cavils. The sort of job creation scheme we do not want.

    • stred
      Posted December 6, 2016 at 11:20 am | Permalink

      Seeing so many highly paid lawyers paid to niggle over obscure law, written by other lawyers is enough to make a taxpayer weep. Was not the Attorney General arguing for use of the prerogative the same one who was working for Cameron when the referendum act was written? If so he is now arguing that his own law says one thing while the supreme bigwigs are picking holes in it.

      Did not Tony Blair and his flatmate dream up the Supreme Court because they did not like the Law Lords. They may have used the prerogative to design it and use taxes to convert the building at great expense. Presumably, the HoC passed the creation of the court? Who cares anyway? If so, then MPs could just as easily abolish it and save a lot of expense and waffle. The building would make a very nice high- class restaurant and fetch a good rent for the Treasury.

    • Lifelogic
      Posted December 7, 2016 at 7:38 pm | Permalink

      Indeed we need an charity dedicated to the elimination of parasitic non jobs.

  22. LordBlagger
    Posted December 6, 2016 at 9:35 am | Permalink

    If the government loses the case, I’m looking forward to winning a court case that we are not in the EU because we were taking in illegally.

    ie. Treaty using the royal prerogative [Like A50] followed by parliamentary vote.

    • Those Anarchists
      Posted December 7, 2016 at 9:53 am | Permalink

      The High Court and Supreme Court have done more than any other in recent times to ensure British people cannot, if they did, trust or believe in justice in the UK. In a matter of weeks they have invalidated the whole of our Law as perceived.
      As to undermining our voting system and the belief in it, where it existed, look what will happen to turnout in any other referendum…even a General Election.

  23. Denis Cooper
    Posted December 6, 2016 at 9:39 am | Permalink

    Off-topic, I see that Hague has a Telegraph article headlined:

    “The euro has trapped poor countries like Italy in a failed experiment. It must give them an exit – or collapse”

    But when he was Foreign Secretary he passed up a “golden opportunity” to press for the EU treaty changes which would be necessary for that to become possible, instead agreeing with Cameron that the UK should simply give Merkel what she wanted.

    • Ian Wragg
      Posted December 6, 2016 at 10:30 am | Permalink

      Hague is a turncoat. He went native when joining the Foreign Office as most do.

      • Mitchel
        Posted December 6, 2016 at 1:39 pm | Permalink

        Oh yes!See how Boris Johnson’s views on certain hot topics were turned on their head within days.

      • Vera
        Posted December 6, 2016 at 4:32 pm | Permalink

        Yes he turned out to be a huge disappointment. What a waste.

  24. Alison whitehead
    Posted December 6, 2016 at 9:56 am | Permalink

    Yes double standards all the way …. We won end of and iv still got my shitty leaflet I’m keeping it as proof of all the lies the sgitheads told coz they can5 handle the truth !!!!

    • fedupsoutherner
      Posted December 6, 2016 at 11:52 am | Permalink

      @Alison Whitehead. Yes, and when the public get angry they will take it out at the ballot box at the next election and I can’t see the 3 major parties being that popular.

  25. Bob
    Posted December 6, 2016 at 10:00 am | Permalink

    Mr Cameron should be called to testify before the Supreme Court.
    As PM he was unequivocal that whether we leave or stay was the decision of the electorate, not Parliament, nor the Judiciary.

    In his Chatham House speech he said:
    “if we vote to leave then we will leave, there will not be another renegotiation nor another referendum”

    • Sam Stoner
      Posted December 6, 2016 at 2:23 pm | Permalink

      You are in good company with Mr Redwood in not understanding Rule Number One (it is the only Rule in fact) of our constitution – which is that Parliament makes the law. The government does not, the PM does not, judges do not, leaflets do not. Parliament does. That is why we are not a tyranny. In this case the High Court simply affirmed that, and I think the Supreme Court will too.

      • Denis Cooper
        Posted December 7, 2016 at 11:35 am | Permalink
        • Sam Stoner
          Posted December 8, 2016 at 6:18 am | Permalink

          Exactly Denis!

          If you can find me a provision in that Act which says that parliament has passed to the people the power to make law, then I shall step down with good grace.

          But there is no such provision. The people do not make law. Parliament makes law. It is for Parliament – not the government and not the people – to decide whether we leave the EU.

          Reply Parliament gave the power to the people to make the decision and now have to implement it. You are completely wrong

          • Sam Stoner
            Posted December 8, 2016 at 8:06 am | Permalink

            As I say, show me where in that statute Parliament delegated power to make law to the people. It did no such thing. The people took a decision – on that you are right. But only Parliament makes law. Not the people. Not the government. That is, quite simply, our constitution

            Reply Yes, and Parliament will make the Repeal Law to get rid of the 1972 Act

      • rose
        Posted December 7, 2016 at 10:31 pm | Permalink

        Parliament should make the law but judges are encroaching.

    • Lifelogic
      Posted December 7, 2016 at 7:40 pm | Permalink

      Yes but is was Cameron like many politicians, if his lips were moving you knew he was lying.

  26. WingsOverTheWorld
    Posted December 6, 2016 at 10:10 am | Permalink

    Off topic, but following on from your post yesterday, regarding representing remain. Many of the Remainers I talked to both before and after the vote were mostly concerned with the economy. Most bought (and some still buy) the idea that the economy will falter once Brexit occurs; that ceasing membership of the Single Market would unnecessarily curtail growth. Many (but not all) Brexiteers, meanwhile, like the idea of using our new found sovereignty to embark on massive fiscal reform outside the Single Market and with the WTO as a fall back. It seems to me that these arguments need to be aired in public and would go a long way to allay the fears of many exReamain and exLeave voters alike. The data post referendum result should be explained, and models shown to how and why a low tax UK outside the Single Market would prosper in relative to our current position in it
    (preferably pictorially, or visually), if indeed it would.

    There was good work done before the vote by Economists for Britain. I feel its work is far from complete. We need a body to explain why we shouldn’t fear life outside the Single Market, and indeed the differences between membership, access, WTO tariffs, fees for access and the customs union, as well as the merits of pursuing a free market economy, and what that means for people’s rights and opportunities. A presentation needs weight and presence in our media, with big names behind it. It needs to be shown relative to the system we currently have inside the Single Market so people can weigh the pros and cons.

  27. Antisthenes
    Posted December 6, 2016 at 10:15 am | Permalink

    The courts are to protect us from being abused and to punish the abusers if necessary. The article 50 court case is being brought on the pretext it is to stop the government abusing parliament by denying it the right to decide on triggering article 50. A perfectly sound objection but only if parliament needs the courts to protect it from the executive’s abuse of power. It does not. Parliament has all the safeguards it needs. Parliament can by vote change anything it does not approve of. The government has taken the stance that the will of the people is the sovereign voice that binds them in this case. If parliament believes different then it can vote itself the right to make the decisions on Brexit. If the government then believes that parliament is wrong to do so it can call a general election. Which would be right and proper as then a court higher than the supreme court, the electorate, can decide.

    • rose
      Posted December 6, 2016 at 9:04 pm | Permalink

      “Parliament has all the safeguards it needs.”

      This is why the Divisional Court should have thrown the case straight out.

      If there were diversity on the Bench – and I don’t meant sexual or racial – we would not be footing this enormous bill.

      I would be quite happy with 11 Etonians at the Supreme Court so long as they reflected the diversity of opinion Etonians traditionally have. George Orwell, Tam Dalyell, Nicolas Ridley, Jonathan Porritt, Ian Gilmour, Zac Goldsmith, etc etc, all Etonians and all with different opinions and politics.

      What we have ended up with is a President and Deputy President who go on and on about diversity but make sure they all think the same. Bringing in the woman only made things worse.

  28. forthurst
    Posted December 6, 2016 at 10:59 am | Permalink

    “We order that no one shall publish or reveal (a) the names of the certain former claimants in these proceedings, (b) the names or addresses of any children who are interested parties in these proceedings…” Neuberger

    Why should the identities of those who like to operate from behind the curtain be protected from public knowledge? Would it enable even the stupidest people to start to join up the dots? It is cowardly for those behind this case against the English people to hide behind (the two litigants ed) as though we are supposed to believe these people are the prime movers in this attempt to frustrate the will of the people, a fiction which is far too readily embraced by the MSM.

  29. ferdinand
    Posted December 6, 2016 at 11:19 am | Permalink

    So much has been written about he case that it is more than a trifle confusing, but as I see it the Lisbon Treaty specifically identifies those Articles that need Parliament.s stamp before they can be actioned. Article 50 is not on that list so surely it can be abrogated by crown prerogative. Or have I got this all muddled up ?

  30. MickN
    Posted December 6, 2016 at 11:22 am | Permalink

    John, I see that moves are afoot from some of your colleagues to defy the democratic will of the people of the UK. Clarke, Soubry and Morgan are a given, but where can I find the name of the others who wish to deny us democracy? Please name and shame them or point me in the direction of where I can see this list for myself.

    Reply Just read the vote record if and when they vote against the referendum judgement.

  31. Denis Cooper
    Posted December 6, 2016 at 11:23 am | Permalink

    This mess actually dates back to May 2013:

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

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

    When observers read that draft Bill:

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

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

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

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

    But I must admit that I always thought the government could use this obvious defect as wriggle room to keep us in the EU even if we voted to leave, it didn’t occur to me that the government might want to keep its promise but others would try to prevent that.

    Reply We did raise the issue and were reassured by the Foreign Secretary and the PM that the people would make the decision and Parliament would then legislate accordingly. Its all in Hansard.

    • Colin Hart
      Posted December 6, 2016 at 12:15 pm | Permalink

      It may all be in Hansard but you should have read the parliamentary briefing note, quoted by the High Court, that said the referendum would only be advisory.

      If you had read the note you should then have smelled a rat and insisted on the Referendum Bill spelling out what would happen – and when – if the vote was LEAVE.

    • Denis Cooper
      Posted December 6, 2016 at 12:27 pm | Permalink

      It doesn’t say on the face of the Act that in the event of a referendum vote to leave the EU government would have a duty to serve the notice required under Article 50 TEU within a certain time frame. It could have said that, but it doesn’t; and if the Supreme Court now finds against the government using prerogative powers in the light of the existing legislation then there will have be another piece of legislation saying what that Act should have said in the first place, if the government can get that passed by both Houses of Parliament which is in great doubt.

  32. Original Richard
    Posted December 6, 2016 at 11:47 am | Permalink

    Parliament voted 6:1 to allow the people of the UK to make a decision as to whether to remain or leave the EU.

    We voted to leave and Parliament should respect this decision.

    It was never in Parliament’s authority to sign away our sovereignty through a series of EU treaties including Maastricht and Lisbon without a referendum in each case to give Parliament the authority to sign these treaties.

    The sovereignty of the people trumps both Parliament and the judiciary in this constitutional matter.

    The remainers are incorrect to say that we voted to leave but did not define a destination. The destination was clearly to leave the EU and this clearly meant that we would no longer be bound by the EU’s rules on free movement of people, membership of the Single Market and associated Customs Union or subject to the ECJ.

    The remainers are also incorrect to say that we did not vote to make the country poorer. But we did as we voted to leave despite being told very clearly by Mr. Cameron, Mr. Osborne, the Governor of the Bank of England, the IMF etc. that a vote to leave would bring economic ruin.

  33. Richard Butler
    Posted December 6, 2016 at 12:18 pm | Permalink

    Far too much focus on the legal, far too little focus on what the take home message was in the public mind on June 23rd.

    The take home message was that the people would decide, there was no reference to a sub clause or small print.

    The people will rise up as never before if the arrogant, authoritarian liberal establishment dares us. Liberal politics is extreme, it demanded we accept mass immigration without consent, it refused to engaged with the public mood, preferring instead to deride it.

  34. prigger
    Posted December 6, 2016 at 12:43 pm | Permalink

    This morning, in Supreme Court, through questions and answers, the historical implementations/ usage of prerogative powers regarding “context” ; “sequencing” were discussed.
    Remarkably, the Supreme Court itself used examples of where prerogative powers were used but were dependent on specific “contexts” and it cited specific instances where existing law was not changed as a result. The question whether Brexit would actually change underlying UK law was stated that it would. But the Supreme Court should not be considering whether Brexit could or would change UK law but whether Article 50 would or could. Obviously itself the signing of Article 50 does not change anything.. It was admitted in the case of Brexit ( again not the subject of the Court case, my emphasis ) ) it would but an example was made in regard to Canada and the Kyoto agreement where the sequence of their prerogative power/ and legislative aftermath was to seek to break its or change its treaty which would have changed its domestic law but that AFTER the use of the prerogative , the next sequence of events was for the Canadian Parliament to adjust and amend its own laws so they would not lose its own executive and sovereign powers to underpin the former international ones. That it is normal for such prerogative power so used as it is an initial start to a sequence of measures.. agreement.
    The Supreme Court has not indicated but no doubt it is aware that the signing of Article 50 is NOT Brexit. That it is NOT the conclusion. That it is an administrative and necessary move which starts a process and that process brings directly into role Parliament to make good or throw out what aspects WILL or COULD change in existing UK law after the two -year time period.
    On the surface of it and in-depth according to the Supreme Court questioning, it would seem the lower Court has confused/conflated in its ruling the signing of Article 50 as the whole of two years TOWARDS Brexit, in fact, confused it with the actuality of post Brexit…all of which are not a KNOWN as they will be acted upon in a process which is not what the Supreme Court nor the High Court is asked to consider.
    The Supreme Court indicated that in any case it cannot come up with “remedies” to whatever the eventuality.
    It seems to me, the Supreme Court has to conclude that the Article 50 can be signed by Mrs May and it is lawful for her to do this. It does not require consent be given by Parliament as is normal in such prerogative actions in treaties because in my none jargon terms Article 50 is Not an eventuality, NOR is it indicative, absolutely of a specific eventuality.
    The lower “High Court” should in my opinion have thrown the whole case out against the government within minutes as the use of prerogative power in announcement that a treaty will be amended or cancelled is the normal first step in a sequential process of all national sovereign governances.

  35. E.S Tablishment
    Posted December 6, 2016 at 1:07 pm | Permalink

    “In the very week that the Supreme Court solemnly considers a case about whether Parliament should debate and vote on an Article 5o letter or not”

    The Supreme Court LIVE is not discussing the signing of Article 50. It is discussing something of its own imagination.It is not even discussing Brexit. Ridiculously, it is in effect discussing post-Brexit. Well, Remoaners have already stated Brexit is ” a leap in the dark” ( that is, the result cannot be known and is unknown by their own determination).
    So the Supreme Court like the High Court is discussing and making judgement about their very own fantasy. Mrs May should sign Article 50 immediately as the Courts are at great speed heading off at a fantasy tangent to the question. They should be drug-tested as they end their session today.

    etc ed

  36. Eh?
    Posted December 6, 2016 at 1:30 pm | Permalink

    I thought a fairly recent Court case, which was abroad ( I shall not name it, for I do not know the legal position of writing about it ) though obviously derived from and modeled on the British judicial system was less than acceptable. It used double and triple “negatives” in questioning which is not English, but jargon/legalese . But generally, it was rather better than what we hear in the Supreme Court from the judges. They are all over the place in their utterances. If they were in the position of barristers, then one would hope the judge would caution them to be relevant to the case. That is Should Mrs May be able legally to use her prerogative power in relation to the signing of Article 50 Alone..the SIGNING of it )
    The answer has to be yes. Curiously recent and ongoing British based references to it being used and continuing use are not been cited. Of course if they were, and the Supreme Court came down against the goverment in this particular case, the whole of UK government would immediately come to a halt..for their activities would be illegal.
    Previous Labour and Lib Dem administrations would need to be arrested.
    This, all of it..is a farce

  37. Andy
    Posted December 6, 2016 at 1:45 pm | Permalink

    I’m convinced that the Supreme Court will uphold the High Court judgement, but they will be wrong to do so. When Parliament passed the EU Amendment Act 2008 in did not fetter in anyway whatsoever the Crown’s Prerogative in regard to Article 50. It did so in regard to Article 49 I think it was. It further fettered the Prerogative in 2011 when it produced the ‘Lock’. And that is the basic issue. When Parliament wishes to fetter the Crown’s Prerogative it does so explicitly. It has not done so, thus it means Parliament must have been content to allow the Prerogative to be used. I do feel that what we are seeing is a Judicial Constitutional Coup. It needs to be resisted.

  38. Embarristering
    Posted December 6, 2016 at 1:59 pm | Permalink

    Very entertaining this Supreme Court thing. The only ” solemnly ” as used in your first line JR is, in my differently solemn opinion that the judges are poor at making good jokes. One or two of them have tried. This is a Show Trial….one for the masses.

    Warned maybe that their wigs would instil even greater disrespect for the legal profession, they are not wearing them. Perhaps there is legal reason why this particular hearing does not warrant the wearing of wigs. One shudders of the possibility that the proper usage of wigs is written down somewhere in large dusty tomes in a government institution with a dedicated librarian watching over them, dishing out fines to judges and the rest of the legal profession for late or non-return of their borrowings.

  39. Yosarion
    Posted December 6, 2016 at 2:30 pm | Permalink

    Remind me again after 300 years of Union why we suddenly needed a Supreme Court in 2009 ?, and who voted for it.

  40. Annoyed
    Posted December 6, 2016 at 2:36 pm | Permalink

    It is annoying the “case” is dragging along. There is no case to be answered if the judges are up to the job. Nice of them to hear the moanings on both “sides” as it were >But they are wasting time. Ours. They either look to the context which they are happy to observe, example, and respect in all other cases historically and voice at length and discuss at their own decision in Court or, continue to be in contempt of their own Court. They place obstacle.
    This “context” is the referendum result.

  41. Joe Ellis
    Posted December 6, 2016 at 4:00 pm | Permalink

    Excellent article, as always John Redwood MP.

    We really do need to exist the EU as promised by David Cameron the then MP.

    Kind regards,

    Joe

  42. rose
    Posted December 6, 2016 at 4:21 pm | Permalink

    “hope the Judges understand three basic points. The first is the referendum was the decision. Government made that clear in Parliament and in a leaflet to all voting households. The second is Parliament can debate Brexit any time it likes, and has done so extensively already. The third is Parliament needs to make up its own mind on what it wants to vote on, and is free to do so.There can be plenty of votes on the Repeal Bill.”

    Another day in court in which the referendum is barely mentioned. All the attention is being given to the point about removing a body of legislation by Royal Prerogative when we all know the body of legislation will be dealt with in Parliament by the repeal of the 1972 Act and by the Great Repeal Bill.

    All the Royal Prerogative will do is give notice to the EU of our intentions.

    What a pity we have got so bogged down in Article 50 instead of just writing a letter.

  43. Chris
    Posted December 6, 2016 at 4:26 pm | Permalink

    Richard North’s article on the legal action and Article 50 is very useful indeed:
    http://www.eureferendum.com/blogview.aspx?blogno=86301#disqus_thread

    He exposes the apparent ignorance of people in high places…

  44. Boredom of Court
    Posted December 6, 2016 at 5:13 pm | Permalink

    The case against the government’s position in Court appears to confuse/conflate the referent in this sense: the process of Brexit after the signing of Article 50 with Article 50 itself as an entity in its own right. Lord Panick’s rhetoric, so appreciated by the Supreme Court judges, that they fail to comment on this, even to note it.
    The process following the signing of Article 50 which may or may not as Lord Panick commends to the Court provide really no place for a prerogative in any or all of its machinations. He says Article 50 is a foreign law but it refers to things in British law. So it does! But it, “Article 50” as a non-process but merely the signifier OF the process OF Article 50 can be , should be, and is in law under the prerogative.
    “Cow 50” written in letters and numerals may signify 50 cows. But “Cow 50” in itself obviously is not in actuality 50 cows. They would not fit into this blog. I can for instance use my prerogative: sign a letter to say I intend to sell 50 cows in two years subject to negotiations but that signed intention does not actually move 50 cows from my field to someone else’s nor does it indicate a done deal. Lord Panick is good on paper. But intention to do a murder is not a preparation for committing an act of murder nor is it a murder which requires investigation by Parliament. The police cannot take up investigation on such a foolish contention. But can after its eventuality, say when the Brexit period as a process starts or when the alleged potential murderer sets off in his tank in the direction of the Supreme Court with live shells and a funtioning delivery system.
    At no time has Lord Panick in great plenty, mentioned the referendum legislation nor the result of the legislation , nor hansard featuring Cameron’s proclamation to sign Article 50 “the next day” after a possible Leave vote on 24th June to Parliamentary applause, though he used past editions of hansard to prove or illustrate some point in years gone by to substantiate what is his case. A case with focus points in time in the history of law making and raising every historical context but the present context 24th June onwards. We are 6 months behind in the Prime Minister signing Article 50 as promised at the highest level of Parliament. End of story!

  45. Sean
    Posted December 6, 2016 at 5:41 pm | Permalink

    It’s a stitch-up 99.9 ℅ sure that the ruling will stand.

  46. rose
    Posted December 6, 2016 at 5:55 pm | Permalink

    Remember this:

    “However, Jonathan Sumption QC, appearing for the Office of the Prime Minister, told the judges: “This case is politics dressed up as law.” “

  47. Courting disaster
    Posted December 6, 2016 at 6:39 pm | Permalink

    The Remoaners and the Supreme Court and” I hear so-and-so wrote a very important article in The Times putting the case for us not leaving the EU” ( TV journalist ) 06 12 2016 …well it is a hackneyed phrase to say “They live in a different world” But there is a reason why the phrase is so well-used.

  48. Democrat
    Posted December 6, 2016 at 7:08 pm | Permalink

    Anna Soubry MP has just been on SkyNews. She seems quite tearful. Says Mr Hammond is an ally though stopped short of using those words. Says she wants Free Movement of People/Workers/;Not leaving the Single Market/Staying in the Customs Union. Oh and recognises the referendum result.
    She is an ex-barrister. She seems a sincere and nice person, really. It is a pity but will most likely be voted out of power at the next General Election. Her views do not support parallel belief in the Will of the People meaning anything whatsoever. If I were a dedicated Remainer I could not vote for anyone expressing arguments which amount to total betrayal of the bare bones of an “X” on a ballot paper.
    There are dark forces in our country and the Supreme Court has yet to declare its membership or not to those forces.

  49. Kempt
    Posted December 6, 2016 at 7:25 pm | Permalink

    There were so many new voters ( not young ) who voted in the referendum. There were so many voters who had not voted for years because “it makes no difference” but voted to Leave.

    Prior to all this we in these Comments were sad that turnout in elections were so poor. What could we do? How do you bring into balance, representative democracy when people do not vote?
    Thwarting the referendum decision is not going to end well; decreased turnout or not if the Remoaners achieve victory over democracy then we can expect trouble. All revolutions apart from a certain mobile phone company must start like this. Usually ends up if not always worse than before. Perhaps four Supreme Court judges instead of 9 to 11 deciding on what 17 million or so voted for and whether to accept it or not. With un utterable arrogance they dare to even “debate” it via “clever” talk. High or highest education does not impart proper values , obviously. Nor “good breeding” which appears to have met its DNA sell-by-date.

  50. Ed Mahony
    Posted December 6, 2016 at 8:02 pm | Permalink

    The government never made clear referendum was about Single Market or not

    – Ballot paper never mentioned Single Market.
    – Examples of prominent Brexiteers who suggested referendum was not about leaving Single Market

    Worst piece of governance in modern history (not the principle of the referendum but way it was approached and implemented).

    – it was about sorting out internal political-party issues not the good of the country
    – lack of clarity what referendum was about over something so crucial
    – lack of overall plan (from both sides)
    – terrible timing – huge national debt to pay off
    – not preparing, at least, for our businesses to build up their exporting business
    Currently, Germany exports a whopping 3 x more than the UK
    – Germany exports 2.5 times more to the US than the UK
    – Germany exports 3 times more to China than the UK
    – Germany exports 4 times more to Japan than the UK

    Scandalous. And now the poor Lords have to get involved when they don’t want to with a barge-pole.

    Reply The referendum was to leave the EU. There is no such thing as a single market to stay in for non members.

    • Ed Mahony
      Posted December 6, 2016 at 8:09 pm | Permalink

      And the same Parliament that supported the Iraq War.

      – Overwhelming pattern here: we think we’re far bigger and more powerful than we really are.

      Certainly yes to control of immigration. But not like this.

  51. An Outrage
    Posted December 6, 2016 at 8:59 pm | Permalink

    First Day:
    “Isn’t that Climate Change!? Climate Change?” remarked one judge on the Supreme Court horseshoe panel to the government’s ‘barrister whose name has vanished temporarily no doubt, from the internet replacing it overwhelmingly by Pannick! Lord of the Awake
    It woke him up. An embarrassment to all! It was very much literally akin to Basil Fawlty’s conversation with one of his elderly residents Major Gowen ” Woman?? Met one once…didn’t like her!”
    This Supreme Court is so so so mightily a blot on our British landscape it ought to be banned for public view for evermore. They are the very worst in Britain of a bygone age and half of them are computer illiterates. They need paper copies instead of pc formats. Make sure they get home safe after their wise counsel!

  52. CheshireRed
    Posted December 6, 2016 at 10:59 pm | Permalink

    The blame for the Ref’ Act referendum outcome NOT being binding – and therefore for ALL the current High/Supreme court circus nonsense and constitutional and Brexit uncertainty lies squarely with David Cameron. He forbade his civil servants to make provision for a Leave outcome, instantly betraying his own, wilful refusal to fulfil his duty as PM. He solemnly promised to ‘activate Article 50 on the Friday morning following a Leave vote’, yet instead gave a Hollywood-esque bravura last stand ‘Look at meeeee’ resignation performance that had Sam Cam ruining her mascara before the world. The words ‘duplicitous’ and ‘sh!t’ spring to mind.

    • rose
      Posted December 7, 2016 at 10:24 am | Permalink

      I’m afraid DC and SC took the vote as a personal betrayal rather than an affirmation of national pride.

    • Anonymous
      Posted December 7, 2016 at 10:07 pm | Permalink

      The salient excerpt from the leaflet pertaining to the referendum bill:

      ‘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. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.’

      I fail to see where this says the PM cannot issue the A50 letter autonomously – particularly when there was a clear understanding outside of Parliament via leaflets, promises and warnings of the direst consequences.

  53. Denis Cooper
    Posted December 7, 2016 at 11:48 am | Permalink

    I’m listening to Lord Pannick expatiating upon the inadequacy of the 2015 referendum Act as parliamentary authorisation for the government to serve an Article 50 notice; what a pity that as an unelected legislator-for-life he didn’t cut up rusty about the potential failure of the text to respect basic constitutional principles, and demand that it be amended to provide greater clarity, when the Bill was before him in the House of Lords, and therefore before millions of us had cast our votes. And no doubt if the vote had gone the other way he would have continued to turn a blind eye to the constitutional impropriety of the Act.

  54. Newmania
    Posted December 7, 2016 at 1:44 pm | Permalink

    The most notable omission from the lecture was any mention of high levels of migration, which must be having an impact on wages and the labour market, and is having an impact on public attitudes.

    Do you mean the high levels of inward migration from the EU caused by Brexit? Conceivably these particular factors have had an effect in the Labour market but freedom of movement in the EU has almost no impact. In fact as EU workers are “working “ much more than the average Brit they are more economically active contribute more to growth the exchequer and , by increasing the demand for services and gods , create jobs and keep wages up.
    If you mean rest of world immigration , which is more problematical then I think , in this context you should make that clear …I wouldn`t want you to be accused of telling lies to inflame ignorant bigotry John , no doubt that appearance was accidental on your part
    The relaxing of fiscal restraint requires my children to pay for your folly and it makes me so angry I can hardly speak.

  55. Lindsay McDougall
    Posted December 8, 2016 at 2:32 am | Permalink

    Just how independent is our judiciary? Who appointed the eleven justices of the Supreme Court? What was the process and the selection criteria? I think that we are entitled to know. The House of Lords has a 6:1 majority for Remain. Let us hope that this doesn’t apply to the Supreme Court justices.

    If the Supreme Court refers its current decision up to the European Court of Justice, it will thenceforth be treated with contempt. One of the main points about Brexit is that we do not recognise the ECJ.

    The equivalent process in the USA is simpler. When there is a Supreme Court vacancy through death or incapacity, the US President appoints a replacement. A Republican President appoints a strict constructionist, a judge who is content with the Constitution. A Democratic President appoints a justice who is prepared to doctor or interpret the Constitution in order to satisfy Democrat policies.

    • Denis Cooper
      Posted December 8, 2016 at 9:42 am | Permalink

      Faisal Islam at Sky News has been looking forward to a reference to the ECJ.

  56. Graham Senior-Milne
    Posted December 9, 2016 at 10:01 pm | Permalink

    Letter sent to Government Legal Dept today:

    1. This is a letter before claim in accordance with the pre-action protocol for judicial review.

    2. The hearing in the appeal to the Supreme Court relating to Article 50 TEU finished yesterday. The court has indicated that judgment will be issued in the new year.

    3. As a party to the appeal, the government is under an obligation to bring to the attention of the court any matters arising. This duty continues even after judgment has been issued. In this context, see M (Children), Re [2008] EWCA Civ 1261 (19 November 2008) (http://www.bailii.org/ew/cases/EWCA/Civ/2008/1261.html) at 38: ‘I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate- to obviate the need to come to this court for a remedy.’

    4. The issue in the appeal was specified in the judgment in the High Court (Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union (Rev 1) [2016] EWHC 2768 Admin) http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) at 4: ‘The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union. It is common ground that withdrawal from the European Union will have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom.’

    5. However, the original application to the court would be an abuse of process (as would the appeal of course) if the question being put to the court was moot (that is, a mere academic exercise); in other words, if the government had the power to trigger Article 50 by some other means.

    6. It is clear that such an ‘other means’ does exist and this is because the government has a statutory right under domestic law to trigger Article 50 and so does not need to use the royal prerogative.

    7. This statutory right arises under s.2(1) European Communities Act 1972, which states: ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.’

    8. Thus, Article 50 TEU is incorporated into domestic statute law and can be used by the government as a provision of domestic statute law without recourse to the royal prerogative. s.1(2)(s) European Communities Act 1972 states: ‘the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community signed at Lisbon on 13th December 2007 (together with its Annex and protocols), excluding any provision that relates to, or in so far as it relates to or could be applied in relation to, the Common Foreign and Security Policy;’

    9. It follows that the issue before the High Court and the Supreme Court was entirely academic because the government has a method of triggering Article 50 TEU without using the royal prerogative.

    10. You have a duty to notify the court of this matter as shown above.

    11. I therefore ask you to confirm to me that you will notify the court of this matter and I hereby give you notice that, if you fail to do so by Tuesday of next week, I shall apply next Wednesday for permission to proceed with an application for a judicial review to seek declaratory relief to the effect that the government can trigger Article 50 TEU under domestic statute law and without using the royal prerogative.

    12. Please reply by E-Mail.

  • About John Redwood


    John Redwood won a free place at Kent College, Canterbury, and graduated from Magdalen College Oxford. He is a Distinguished fellow of All Souls, Oxford. A businessman by background, he has set up an investment management business, was both executive and non executive chairman of a quoted industrial PLC, and chaired a manufacturing company with factories in Birmingham, Chicago, India and China. He is the MP for Wokingham, first elected in 1987.

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