The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

NOTE! This site uses cookies and similar technologies.

If you not change browser settings, you agree to it. Learn more

I understand

Cookies are a technology which we use to provide you with tailored information on our website. A cookie is a piece of code that is sent to your internet browser and is stored on your system.

Please see below for a list of cookies this website uses:

Cookie name: _utma, _utmb, _utmc, _utmz

Purpose: Google Analytics cookies. Google Analytics is software that lets us analyse how visitors use our site. We use this information to improve our website and provide the best experience to visitors.

Function: These cookies collect data in an anonymous form. Please see Google's privacy policy for further information. To opt out of these cookies, please visit Google's website.

Cookie name: Sitecore

Purpose: Stores information, such as language and regional preferences, that our content management system (the system we use to update our website) relies on to function.

Function: This is a session cookie and will be destroyed when you close your browser. This cookie is essential for our website to function.

Cookie name: ASP.net_session

Purpose: Allows the website to save your session state across different pages. For example, if you have completed a survey, the website will remember that you have done so and will not ask you to complete it again when you view another page on the website.

Function: This is a session cookie and will be destroyed when you close your browser. This cookie is essential for our website to function.

Cookie name: website#sc_wede

Purpose: Indicates whether the user's browser supports inline editing of content. This indicates whether our content management system will work for our website administrators in their internet browsers.

Function: This is a session cookie and will be destroyed when you close your browser. This cookie is essential for our website to function.

Cookie name: redirected

Purpose: Remembers when the site forwards you from one page to another, so you can return to the first page. For example, go back to the home page after viewing a special 'splash' page.

Function: This is a session cookie, which your browser will destroy when it shuts down. The website needs this cookie to function.

Cookie name: tccookiesprefs

Purpose: Remembers when you respond to the site cookie policy, so you do not see the cookie preferences notice on every page.

Function: If you choose to remember your preference with a temporary cookie, your browser will remove it when you shut it down, otherwise the cookie will be stored for about a year.

Cookie name: _ga

Purpose: Additional Google Analytics cookie. Google Analytics is software that lets us analyse how visitors use our site. We use this information to improve our website and provide the best experience to visitors.

Function: These cookies collect data in an anonymous form. Please see Google's privacy policy for further information.

Cookie name: SC_ANALYTICS_GLOBAL_COOKIE, SC_ANALYTICS_SESSION_COOKIE

Purpose: Sitecore Analytics is software that lets us analyse how visitors use our site. We use this information to improve our website and provide the best experience to visitors.

Function: These cookies collect data in an anonymous form. When you close your browser, it will delete the 'session' cookie; it will keep the 'global' cookie for about one year.

Facebook cookies

We use Facebook 'Like' buttons to share site feedback. For further information, see Facebook's cookie policy page.

Twitter cookies

We use Twitter 'Tweet' buttons to share site feedback. For further information, see Twitter's privacy statement.

YouTube cookies

We embed videos from our official YouTube channel. YouTube uses cookies to help maintain the integrity of video statistics, prevent fraud and to improve their site experience. If you view a video, YouTube may set cookies on your computer once you click on the video player.

Cookies pop-up

When you close the cookies pop-up box by clicking "OK", a permanent cookie will be set on your machine. This will remember your preference so that the pop-up doesn't display across any pages whenever you visit the website.

Opting out/removing cookies

To opt out of Google Analytics cookies, please visit Google’s website.

You can also control what cookies you accept through your internet browser. For details on how to do this, please visit aboutcookies.org. Please note that by deleting our cookies or disabling future cookies you may not be able to access certain areas or features of our website.

mailing list
donate now
join now
shop

Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

Brexit and the Supreme Court

The Supreme Court has no jurisdiction in preventing the Prime Minister from invoking Article 50 to leave to EU. Its ruling is wrong. Jurisdiction was passed to the People, who have primary authority, by Parliament.

25th January 2017
Type text for SEO (example Bruges Group : Image Title)

One must now wonder whether in his memoirs Lord Neuberger, President of the Supreme Court will say, of the unintended consequences of the Court’s Brexit decision, “Of course, the People had made a valid decision to leave the EU but at the time it seemed the right thing to send it back to Parliament.”

 

We are now ruled not by law but by legalisms.

 

Lord Neuberger and those Justices who voted with him are wrong.  Parliament is not sovereign.  Parliament is an administrative system for carrying out the will of the People.  In the final analysis, the People are sovereign.  That was established by the French revolution of which the French are justly proud.  In this county, for better or worse, Oliver Cromwell acted for the People at the time of a useless Parliament and an extravagant King.  

 

Similarly, it is the role of the Courts to codify the will of the People.  It was not the Courts that, in their love of justice, forced legislation to give women the vote or to abolish slavery on a protesting People.  If the Supreme Court is to create law as it is said to have done in this instance, it must be in accord with the wishes expressed by the People.

 

Brexit is a matter in which the Courts have no jurisdiction.  The Attorney General should not have stipulated that they had jurisdiction following Parliament’s clear decision to mandate the People to decide the matter.  One can hardly expect such august, learned and powerful men to draw limits to their own powers.  The Courts lost jurisdiction when Parliament handed the Brexit decision to the People and implementation to the Government.   That was what the People were told and that is the position.  David Cameron said publicly that in the event of a referendum vote to leave the EU he would give Article 50 notice the next day.  Clearly, he expressed what Parliament intended and his powers in the matter.   That he resigned rather than give Article 50 notice speaks of his ethics rather than the legal position.

 

Let us be plain about the situation.  The Prime Minister, Theresa May, underestimated the degree of disdain for democracy in this country.  Delay in giving Article 50 notice while combatting the whining, demands and invective of the Remainers permitted time for the rich and influential to devise means to keep a system from which they benefit but the People and the United Kingdom do not.  The Prime Minister is acting with honesty and integrity, with the good of the Country and the People’s wishes in mind.  Unfortunately, honest persons often underestimate the duplicity and unscrupulousness of the rich and powerful who seek only their own interests. 

 

It was always foreseeable with whom the Supreme Court would side.  Its statement that Parliament is sovereign is a smoke screen.  Parliament unequivocally passed an unqualified, simple, majority decision to the People by the 2015 Act and statements by Government Ministers.  All the evidence is that this is so; there is nothing to the contrary.  The Supreme Court has failed to uphold democracy, the consequences of which are not clear, but they will not benefit the country.  The Court has permitted an opening for delay and manoeuvre by those who wish to remain in the EU.  I understand that their Lordships have considered this matter, by intention, without consideration of the possible consequences of their ruling.   I would inform them, unqualified in law as I am, that law is always about consequences.  That is its purpose.   We have the case of the Iraq war as an exhibit.

 

It was clear the day after the referendum result on 23 June 2016 that a situation like this would occur when the Remainers immediately said that the referendum was ‘advisory’.  On 12 July I wrote a letter to the Chairman of the Treasury Select Committee that was considering the referendum result.  Perhaps inevitably it counted for nothing, but it was clear what had to be done.  The position is unchanged.  The Court is wrong.  Here is the letter:

 

*    *    *

 

It is a sad and extraordinary day when one must say that our Supreme Court is wrong.  We are experiencing events indicating that we are living in extreme and unstable times.  We must deal with the times with confidence in our abilities and culture against the trouble-makers and back the Prime Minister in doing so.  There is no-one else remotely capable of doing it.

 

By Christopher King MSc DipM DMS

 

Recent Comments
Robert Oulds
Its also bad law. The ECA 1972 was amended when the Lisbon Treaty was put through Parliament to incorporate Article 50, it was cle... Read More
Thursday, 26 January 2017 22:49
Continue reading
637 Hits
2 Comments

Independence or incoherence? Why the Scottish government is misleading Scots

Scotland’s former First Minister Alex Salmond and (then) Deputy First Minister Nicola Sturgeon in 2007, at the launch of Choosing Scotland’s Future – a White Paper on a possible independence referendum. Picture by The Scottish Government.

Scottish First Minister Nicola Sturgeon has commented on several occasions in recent weeks on the subject of a second Scottish independence referendum. She first warned that she was not “bluffing” about calling another referendum, should the United Kingdom also leave the European single market. She then ruled out holding such a vote in 2017, effectively holding the threat of it over the British government as it moves ahead with Brexit.

There’s nothing wrong with many in Scotland, as in other European regions like Catalonia, wishing for independence. Indeed, notions of sovereignty, identity, and more representative democracy were all integral to Britain’s vote to leave the European Union (EU). Where such movements lose coherence, however, is in their insistence on remaining in the EU.

Why?

Many, many laws pertaining to the UK, including Scotland, originate in Brussels. Though the exact proportion of British laws stemming from the EU is hotly contested, it is likely quite large, with some estimates ranging up to 62%. What is more important, however, is how significant some of the EU’s competencies are. An “independent” Scotland within the EU would face the same quotas on its fisheries, abide by the same agricultural policy, honour the same trade deals signed devised in Brussels, and have absolutely no control over its borders. Its government also intends to continue using the British pound as its currency. In this sense, the stated intention of being “in the driving seat of [Scotland’s] own destiny and to shape [its] own future” loses its meaning. Without full control over essential areas like borders and monetary policy, a nation is not independent.

Moreover, the EU has always made clear that to secede from a member state is to secede from the Union. As such, Scotland deciding to leave the UK in order to retain its EU membership is not only impossible, but dangerously misleading to Scots.

Beyond the glaring incoherence of the Scottish government’s position, Scots have already decided on the matter of independence, and it is irresponsible for the Scottish government to use the threat of a future referendum as a political shuttlecock. It is common practice to hold referenda once in a generation, especially if their results are as decisive as the last time Scots were consulted, in 2014 (55% in favour of remaining in the UK). Sturgeon’s postponed threat of another Scottish vote depending on how “hard” Brexit ends up being is more of a bargaining chip than a true expression of Scotland’s will. This cynical approach to politics serves no one. Scots wishing to remain in the UK are under constant threat of a second referendum, while Scots wishing for independence are being manipulated for narrow political gains.

The desire for independence is unambiguously good. All willing nations deserve to gain their sovereignty, including most recently the United Kingdom. The Scottish government’s position rejecting Westminster while embracing Brussels does not reflect a genuine yearning for independence. Rather, it smacks of political opportunism. The people of Scotland –both for and against independence– deserve better.

This article first appeared on http://theeurosceptic.com

 

Continue reading
565 Hits
0 Comments

Asking Parliament to Vote on Article 50 TEU for the Third Time?

The very purpose of the referendum was to establish a decision-making procedure for leaving the EU. This procedure was implemented by the June referendum.

5th December 2016
Type text for SEO (example Bruges Group : Image Title)

In R (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (3rd November 2016), the Divisional Court determined that the government may not trigger Article 50 of the Treaty on European Union (TEU) without legislation being passed by Parliament. Article 50 states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. … 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, agreement with the Member State concerned, unanimously decides to extend this period. 



The claimants were members of the public described by the Divisional Court as “parties … whose interests are potentially affected in different ways” (para. 7 of judgment in Miller). The essential reason for the conclusion of the Divisional Court that legislation is needed was that triggering Article 50 TEU will inevitably have the effect of changing domestic law because those elements of EU law which Parliament has made part of domestic law by the enactment of the European Communities Act 1972 will in due course cease automatically to have effect.


The judgment seems open to criticisms on a number of grounds, chiefly the following: (i) it fails to adequately take into account the relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism that applies to the incorporation of the EU Treaties into EU law; (ii) relatedly, its fails to adequately take into account the manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation, and in particular, by reference to the entire body of EU law; (iii) the distinction drawn between categories of rights under EU law does not establish that some rights protected by UK law will be set aside in  way contrary to the European Communities Act 1972, and (iv) and the judgment does not fully consider any constitutional effects of the European Union Referendum Act 2015.


Parliament will need to vote on how to replace EU law in UK law when Brexit actually happens. The Miller judgment requires that Parliament votes to being the process of Brexit too. At a political level, the Miller judgment is very significant in that the House of Lords may well vote against triggering Brexit, and it would take one year for the House of Commons to be able to bypass the House of Lords under the Parliament Acts 1911-1949.

 

(i) The relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism:

The essential argument made by the Divisional Court to sustain its conclusion in Miller was that triggering Article 50 TEU would mean that the UK could leave automatically after 2 years and that leaving the EU would undermine or alter the effects of the European Communities Act 1972 (‘ECA 1972’) and change or reverse the rights of individuals created by the ECA 1972. The Divisional Court noted the principle of parliamentary sovereignty as common ground: “Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. 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.” (para. 20). However, this includes the way in which ordinary EU legislation (i.e. EU legislation other than the Treaties, in the form mainly of Regulations and Directives) is passed at EU level. Legislation under Article 288 of the Treaty on the Functioning of the European Union is adopted in Brussels by the EU Council (of Ministers), with UK ministerial participation, as envisaged in s. 2(2) ECA 1972 (as noted in paras. 52-52 of the judgment). This procedure does not involve any vote by the UK Parliament, yet clearly changes UK law on a regular basis. This can only be because, as the Divisional Court says in paragraph 20 quoted above, Parliament has allowed this to happen.


The issue in Miller could thus be expressed as whether or not Article 50 TEU has also already been enabled by legislation in a similar way. Despite the Divisional Court conclusion in Miller, arguably the answer is yes. 


The Divisional Court continued that “An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers” (para. 25) and the Court noted that this predated the Glorious Revolution of 1688 and could be found in The Case of Proclamations (1610) 12 Co Rep 74. Further, the Divisional Court noted that “Another settled feature of UK constitutional law is that, as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers”(para. 30). Thus, the executive exercises the power to engage in foreign and international relations, but it cannot do so in a way that has an effect on legislation passed by Parliament.   


Concerning the relationship between international law and UK law, the principle of dualism should first be clearly explained. The principle of dualism is recognised within the international legal system as one of two ways in which national legal systems can interact with the international legal system. The other is monism. Monism and dualism differ in the manner of incorporating international treaties or conventions into the national legal system. In a dualist system, which indeed the UK is, two steps are needed for an international treaty or convention to become part of UK law: (i) signature and ratification by the executive (in a monist approach, ratification also incorporates treaties into national law) and (ii) followed by incorporation into national law by Parliament. The argument of the Divisional Court – that because triggering Article 50 TEU would affect rights exercisable under EU law, it would therefore deprive the ECA 1972 of its effect and, thus, required an Act of Parliament to appropriately amend or repeal the ECA 1972 – seems reasonably persuasive at first, but this is so only because the judgment in Miller really does not take into account (i) the difference between producing effects in domestic law and producing effects at European/EU level and (ii) the way in which parliament has incorporated by reference the whole body of EU law into UK law.


Triggering Article 50 TEU would indeed produce legal effects at EU level, but it would not amend or repeal the ECA 1972. This is especially so when it is taken into account that the ECA 1972 has been amended by the European Union (Amendment) Act 2008, which was enacted specifically to give effect in UK law to the Treaty of Lisbon, and the Treaty of Lisbon included in it Article 50. This is the first occasion on which Parliament has already in effect voted on Article 50 TEU. The wording of the European Union Amendment Act 2008, which was not quoted in the Miller judgment, helps illustrate this. Seciton 2 of the European Union (Amendment) Act 2008 states:



Addition to list of treaties

At the end of the list of treaties in section 1(2) of the European Communities Act 1972 (c. 68) add— “; and 

(s)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;”

 

This is important, because the Divisional Court in Miller specifically referred to the importance of parliamentary control as evidenced by the listing of the Treaties in s. 1(2) ECA 1972 (para 93(8) of the judgment):

 

Finally, we have already drawn attention to the significance of the fact that the principal EU Treaties which are given effect in domestic law are specifically listed in section 1(2). Section 1(3) provides for parliamentary control before any ancillary treaty can be made and regarded as a “Treaty” for the purposes of the Act, and hence given effect in domestic law.   The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law. It is not compatible with this degree of parliamentary control – listing the main “Treaties” in the ECA 1972 itself and providing for a high degree of Parliament control by way of approval by resolution of both Houses before an ancillary treaty qualifies as a “Treaty” for the purposes of the Act – that Parliament at the same time intended that the Crown should be able to change domestic law by the simple means of using its prerogative power to withdraw the United Kingdom from the Treaties.

Yet now the Treaty of Lisbon, which created Article 50 TEU, is listed under s. 1(2) of the ECA1972 (as amended by the 2008 Act), but the Divisional Court did not attribute any significance to this. The method of incorporation that was chosen by Parliament to give effect to EU law – incorporation by reference – confirms that triggering Article 50 TEU will not change UK law, but simply apply a procedure set out in the ECA1972 itself as amended.

 

(ii) The manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation:

The wording of s 2(1) of the ECA1972, which is the clause of the ECA 1972 that incorporates EU law into UK law, is broad enough to cover both the incorporation of individual rights and other procedures:

 

(1)   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 recognised and available in law, and be enforced, allowed and followed accordingly; and the expression“enforceableEUright”and similar expressions shall be read as referring to one to which this subsection applies.

 

In its judgment, however, the Divisional Court speaks as if only individual rights were incorporated and not Article 50 TEU, when both are subject to the same principle of incorporation by reference (see e.g. para. 62 et seq). What incorporation by reference means, is that instead of re-enacting all of the individual provisions of EU law in the form of UK Acts, instead, EU law is globally incorporated by a single provision of UK law, s. 2(1) ECA 1972, with the relevant Treaties thereby incorporated being listed in s. 1(2) ECA 1972. Thus, both the original Treaties and all amending Treaties, including the Lisbon Treaty, have been incorporated in the same way. Seen in this light, the reasoning of the Divisional Court becomes problematic. The Divisional Court suggests that triggering Article 50 will denude the ECA 1972 of its legal effect:

As Parliament contemplated, it was only if it enacted the ECA 1972 (and then amended it to refer to later EU Treaties) that ratification of those Treaties could occur. The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the Courts of other member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972.(para. 66)

 

However, this is to suggest that Article 50 is in some way in conflict with the ECA1972: that triggering Article 50 will end up in a situation where the ECA1972 will no longer apply, yet it is exactly because the ECA 1972, as amended, has provided for Article 50 TEU to be a part of UK law that this is not so. Article 50 TEU is a part of the overall body of EU law that the ECA 1972 has incorporated. Article 50 needs to be seen as a part of this body of EU law and as something applies across the whole of EU law. By triggering Article 50, the government is providing for a procedure in EU law itself. The relationship between Article 50 TEU and the rest of EU law should be seen in the ordinary way in which different legal provisions relate to each other. Article 50 is lex specialis (specific law) and lex posterior (recent law) in regard to the rest of EU law. It is lex specialis or specific law in the sense that it provides for the particular or specific situation of leaving the EU. It is lex posterior or more recent law in that in effect amends EU law so that EU law itself provides for its own dis-application to a Member State, i.e. it amends the EU Treaties to this effect.

 

Contrary to what the Divisional Court suggests, there is no inherent or unresolvable conflict between Article 50 and rights created by EU law. Article 50 TEU regulates how EU rights are to be dis-applied. When Article 50 TEU is triggered, there will not be any provisions of UK law that have been left on the statute book, but which now have no legal effect. Yes, EU laws that have become part of UK law will be automatically dis-applied after the 2-year period (unless the UK and all the Member States agree to extend the period), leaving gaps in UK law. These gaps will be for the legislature to fill by replacing the ECA 1972, when Brexit actually happens, with an Act of Parliament that specifically sets out what rights previously set out in EU law to be continued in UK law.       


(iii) The distinction between categories of rights under EU law:

The parties and Divisional Court agreed on a distinction between three categories of right that would be involved in the triggering of Article 50 TEU:

- Category (i) rights capable of replication in the law of the United Kingdom, e.g. EU rules on maximum working hours

- Category (ii) rights enjoyed in other Member States of the EU by UK citizens, e.g. free movement rights   

- Category (iii) rights that could not be replicated in UK law, e.g. the right to stand for election to the European Parliament.


The Divisional Court suggests that triggering Article 50 would undo category (ii) rights. Triggering Article 50 would undo all of these rights. The Divisional Court seems mistaken in characterising, in para. 59, references by national courts Article 267 TFEU as a ‘right’, where decision to make a references to the Court of Justice are decided upon by national courts according to the criteria in the caselaw of the Court of Justice, and individuals cannot require a reference to be made as a right. But the same argument as above applies here concerning the undoing of rights: Parliament has provided for the undoing of these rights by incorporating Article 50 into UK law already.   

(iv) The European Union Referendum Act 2015:

The Divisional Court was very brief in its discussion of the effect of the European Union Referendum Act 2015, which can be seen as the second time Parliament has voted on Article 50 TEU. The Divisional Court’s conclusion is hard to reconcile with the parliamentary and institutional facts surrounding the passing of the Act. Referenda are a relative novelty at UK level. Apart from the referendum on the Alternative Voting System held in 2011, the last referendum at UK level was also on the EU, or European Economic Community as it then was, in 1975. Both the legislation proving for the 1975 and 2015 referenda simply stated that there would be a referendum on membership, i.e. the legislation did not say anything about the effects of the referendum. However, this does not seem to justify the conclusion of the Divisional Court that the referendum held in June 2016 was purely ‘advisory’ unless very clear language to the contrary is used in the referendum legislation in question (para. 106). In support of its conclusion, the Divisional Court did not cite any authority. It did refer to “a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only” (para. 107). However, this does not seem sufficient to dispose of the constitutional effects of the referendum. It is clear from the House of Commons debate on the European Union Referendum Bill that the government intended that the decision of the people in the referendum would determine the issue of UK membership. The then Foreign and Commonwealth Secretary, Philip Hammond MP, stated on the European Union Referendum Bill:

This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017. (Hansard, Vol. 596, 9th June 2015)

Giving the people the final say means that Parliament must accept the referendum result. This is reflected in the fact that the vote to leave precipitated the resignation of the then Prime Minister, David Cameron MP.


 

When legislation is ambiguous, the rule of statutory interpretation in Pepper v. Hart [1992] UKHL 3 allows the courts to refer to Hansard, the official record of debates in Parliament, to help determine its meaning:


In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.(Lord Browne-Wilkinson, p.22 of Bailii judgment text)

At the very least, the question of the status of the referendum seems by no means as straightforward as the limited discussion in the judgment in Miller suggests. In her judgment in Jackson v. Attorney General [2005] UKHL 56, Lady Hale indicated that Parliament might be bound by a provision of legislation requiring a referendum to be passed:

If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular Parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. But that is for another day.(para. 163 of judgment in Jackson)

The Divisional Court in Miller refers to a briefing paper, but pays no attention to the clear statement above from the lead member of the government advocating the passing of the Bill. Under Pepper v. Hart, it was clearly open to the Divisional Court to refer to Hansard, and the above quoted statement by Philip Hammond is quite clear that the very purpose of the referendum was to establish a decision-making procedure for leaving the EU.  This procedure was implemented by the June referendum.

By Gerard Conway

Continue reading
1294 Hits
2 Comments

Rather than trying to stop Brexit, elites should focus on making it a success

Article 50 will be triggered, and the UK will leave the EU

28th November 2016
royal_courts_of_justice_-_wide_angle_front
The Royal Courts of Justice (London) where October’s High Court ruling that only Parliament can trigger Brexit was delivered.

The latest twist in the Brexit tale is the legal limbo hanging over who can trigger Article 50 of the Lisbon Treaty, signalling the United Kingdom’s departure from the European Union. Following a lawsuit filed in the summer, the High Court ruled on October 13 that the British government cannot trigger Article 50 without Parliament’s permission. This decision was immediately appealed by the government, who are anxiously awaiting the Supreme Court’s final word in December.

Rule of law is one of the foundations upon which Britain’s success over the centuries was built, and must be respected. However, I, like many people, was surprised by the message the High Court’s ruling was sending –that Parliament supersedes the will of the people, not the other way around. After all, isn’t Parliament supposed to reflect the will of citizens? Don’t all MPs, from the lowliest backbencher, to the prime minister, work for us?

In any case, I am not terribly worried about this court battle. If the triggering of Article 50 does end up going to Parliament, there will be enormous pressure on MPs to vote in line with their constituents, leading to a crushing majority in favour of leaving the European Union (EU). It is true that most MPs, across all parties, favoured remaining in the EU prior to June’s referendum, but not aligning with their electorate on this subject could very likely cost them their jobs next election. This threat is especially true for Labour MPs, many of whom saw constituents in northern “safe” seats reject the party’s advice advice by voting to leave the EU.

richard_branson_pic_4
Virgin Group founder Sir Richard Branson has been, and continues to be an outspoken opponent of the UK’s departure from the EU.

Where there is greater cause for concern, however, is in the growing pushback by elites opposed to Brexit. The following three examples are among the most publicized, but by no means the only instances of such pushback:

  1. Gina Miller: Following the referendum in June, a legal battle was launched by investment manager Gina Miller, challenging the government’s intention to trigger Article 50 without parliamentary consent. As mentioned above, the High Court ruled in favour of Mrs. Miller and her co-claimants, spurring the government to appeal the decision in the Supreme Court. Miller claimed that this ruling was about preserving parliamentary sovereignty, an important motivator for many Leave voters. However, one wonders why she or any of the other claimants did not defend Parliament while its powers were being stifled by institutions in Brussels.
  2. Richard Branson: The Independent recently revealed that former Labour ministers have received funding from Sir Richard Branson’s Virgin Group in their efforts to build a campaign opposing Brexit. Office space and legal advice were also committed, indicating preparations to launch a sophisticated drive to frustrate the British government’s efforts to sever ties with the EU. Branson was an outspoken opponent of Brexit during the referendum campaign, and seems not to have accepted June’s result by opposing the government’s effort to deliver it.
  3. Tony Blair and John Major: Former prime ministers Tony Blair and John Major have made statements in recent days on the possibility of a second referendum being held on Britain’s EU membership. Amid rumours floating about some form of political comeback, Blair recently suggested that Britons should “keep our options open” regarding a second referendum. He appears to ignore that options were open prior to the referendum, and that a clear choice was subsequently made to leave.

Timely debate is an essential tenet of functioning democracies, especially in the case of major decisions like continued EU membership. And indeed, such a debate was held in the months and years leading up to June’s referendum. Both sides debated vigorously, and the people of Britain have made their decision. Article 50 will be triggered, and the UK will leave the EU. Rather than trying to undermine voters, pro-Remain elites should focus their energies on how to help Britain make the most of the opportunities presented by Brexit.

 This article is from The Eurosceptic

Continue reading
592 Hits
1 Comment