Extracted from Caribbean Trade Law and Development website Mark the date Tuesday, January 24th at 9:30 am on your calendars! That is the date on which the United Kingdom’s highest court will deliver its highly anticipated judgment in the appellate case of R (on the application of Miller and another) (Respondents) v Secretary of State…
Mark the date Tuesday, January 24th at 9:30 am on your calendars! That is the date on which the United Kingdom’s highest court will deliver its highly anticipated judgment in the appellate case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant), known more […]
We already know the result: 7 to 4 for Remain (Gina Miller).
The government will have to give Parliament a vote on the decision to trigger Article 50.
Read the Daily Telegraph for details.
Oh Chad…stop cutting and pasting and stealing ideas from other sites. Britain is a parliamentary democracy. Parliament is supreme. Theresa May confirmed that in her speech on Tuesday – both the Commons and Lords will get a vote.
The issue in the case is NOT whether Britain remains in or leaves the EU, but wheher the Cabinet may do so without reference to Parliament. My view is that the Supreme Court will permit an Executive exit, although the local EU laws will temain in place until repealed.
Jeff,
I think you are backing the wrong horse. Exit must be endorsed by parliament. It cannot be an executive decision. And EU laws will be removed along with ECJ judgements in a single repeal Act Those that are found adequate will then be re-submitted to parliament .
But Jeff, that process is still mired in difficulties.
Our questions centre around the higher than anticipated motivations of the executive.
@ Jeff at 10 :39 AM
I agree with you. But only because of my personal bias for vox populi ( democracy). The Law ( not Lawyers) is an ass, that can only be straightened out with the use of Bush Tea’S whacker.
I would not be surprised if some judges on the panel take the view that Parliament, in their decision to let the electorate decide in a referendum , tacitly agreed to abide with the outcome. Referring the matter back to Parliament would be superfluous. But those are just the views of a’ two hand’ economist.
Jeff
as usual presumes he knows, and others do not know. So he clarifies the issue.
He grandly announces the obvious. But who said the issue was whether Britain remains in the EU? Talk about constructing a strawman.
The reference to Remain, Jeff, was a snarky way of referring to the political faction that is trying to delay or prevent a hard Brexit by legal maneuvers.
We all know what the issue is. We don’t need to go to law school for that. We can read the papers.
BREXIT is done deal. The Court will not send the matter back to Parliament.
chad99999 January 19, 2017 at 4:07 AM #
“We already know the result: 7 to 4 for Remain (Gina Miller).”
“He grandly announces the obvious. But who said the issue was whether Britain remains in the EU? Talk about constructing a straw man.”
Quid multa?
James,
The Supreme Court will not try to reverse the June 23 result, but parliament will have to dot the i’s and cross the t’s. That is the clear constitutional process.
To decide otherwise will split the court and cause a major constitutional crisis.
Hal
Bernard, you have it mixed up. The Lawyers are the asses, who have corrupted the law.
I have front seats to this, like Hal. Just moved in from the US and CDN. The UK has a lot more to offer the EU than the reverse.
What them got to offer Konkieman?
The issue is whether the UK Government has the power to give notice pursuant to Article 50 of the Treaty on European Union (EU) of the UK’s intention to withdraw from the EU, without an Act of Parliament providing prior authorisation to do so.
Source: https://www.supremecourt.uk/cases/uksc-2016-0196.html
The UK Supreme Court decision has just been announced.
It’s 8 to 3 requiring a parliamentary vote to trigger Brexit negotiations via Article 50 of the Treaty of Lisbon. I’m only off by one vote. I predicted a 7 to 4 vote requiring a parliamentary vote.
As usual, clueless Jeff is WRONG. Gina is all smiles but Theresa says her March deadline for starting Brexit will not be affected.
Good on you, Chad,
Plse tell us why you d that it will be a 7 to 4 majority for a parliamentary vote; name the judges and tell us why you thought they would vote either for or against parliamentary sovereignty.
It would be interesting seeing how you reached your conclusion.
Why must the result be cloaked in a ‘victory’ narrative?
UK Government Loses Article 50 Brexit Appeal
Alicia Nicholls In its ruling made shortly after 9:30 GMT this morning, the United Kingdom’s Supreme Court by a majority of 8 to 3 dismissed the Government’s appeal against a High Court decision that ruled that the Theresa May-led government must attain parliamentary consent before invoking the EU’s exit clause (Article 50 of the Treaty […]
David,
It a victory for parliamentary democracy. It has knocked down such secondary powers as the Royal Prerogative and Executive Powers.
Tell Stuart that if he wants to fingerprint all visitors, parliament must decide.
David,
It is a victory for parliamentary democracy. It has ruled against such secondary powers as the Royal Prerogative and Executive Powers.
It is a major constitutional victory.The matter is now clearer than ever parliament is sovereign.
n.ere
@ Hal AustinJanuary 24, 2017 at 7:33 AM
It was ‘logical’ (if such word can be used in the same sentence as ‘legal’ without oxymoronic effect) that parliamentary approval is required to ‘lawfully’ trigger Brexit since it was an Act of Parliament which established the UK entry to the EU in the first instance.
What impact would the decision to exit the EU have on the people of Northern Ireland and Scotland who voted in the majority to remain?
Shouldn’t this ruling by the UK Appellate Court generate far reaching ramifications for the continuation of the union called the United Kingdom?
After all, the people’s voice is the voice of god and the same way Westminster would be expected to respect the wishes of the ‘people’ and vote to leave officially the EU the desires of the Scots and Irish ought to be recognized.
The upcoming presidential elections in France ought to provide more reliable readings as to the direction the ‘populist’ winds are blowing as far as the future of the EU is concerned. France along with the Netherlands will be the bellwether countries to test the long-term viability of the Union in its present form.
BTW Hal, do you know if the BNTCL or its parent company BNOCL was set up by an Act of Parliament in Barbados? And if so, can Cabinet ‘dispose’ of the company or its subsidiaries without Parliamentary approval?
@Miller
Agree the progress of Le Pen in upcoming elections will be a barometer to test where the wind is blowing in the EU.
As a university student, I and my friends all concluded that law is a subject for ambitious and long-winded but feeble-minded students who are unable to master mathematics or science. And of all the fields of law, constitutional law attracts the least able minds, because it is much simpler than, say, international tax law.
The judgment of the UK Supreme Court on the Brexit case runs to nearly 100 pages of puffery. I’ve briefly summarized some of the main points from THE FIRST 30 PAGES for those of you who do not have the patience to read unnecessarily lengthy government documents. (I have a day job, so the remaining 70 pages will have to wait for another day).
As everyone knows, the gist of it is that the Cabinet of Theresa May needs the authorization of the UK Parliament to initiate Brexit negotiations on its own.
The Losing Case
1. The UK’s membership in the EU is legally expressed in a series of EU treaties signed by UK ministers. Leaving the EU means terminating these treaty obligations. Admittedly, this has the effect of bringing major changes to UK domestic law and the rights enjoyed by UK residents that are granted through EU law.
2. UK Ministers [the Cabinet or Executive] have a well-established Royal prerogative [The Royal prerogative consists of primarily administrative powers, once exclusively vested in the Crown, that have not been assumed by Parliament or the Judiciary] to freely enter into and to terminate treaties without recourse to Parliament, and this prerogative includes the right to withdraw from the (international) treaties which govern UK membership of the EU.
3. Although the UK is a representative democracy (not a direct democracy), and Parliament (not the people – so the referendum on Brexit is “advisory”) holds sovereign powers to make and unmake laws, in many practical situations, acts of the Executive in the exercise of the Royal prerogative have previously altered domestic law.
4. Significantly, the prerogative power to withdraw from the EU treaties is not explicitly excluded by the language of the 1972 European Communities Act, which is the original basis for UK membership of the EU and which “gives effect” to EU laws and directives in the UK. Implicitly, therefore, Parliament has recognized that the power to withdraw from the EU treaties exists and is exercisable by the Cabinet without prior legislation
The Winning Case
1. While the Royal prerogative confers the authority to make and unmake international treaties, it does not enable ministers to make far-reaching changes to UK domestic law and turn away from an independent source of (future) UK domestic law, unless primary legislation permits it. In this case, therefore, the exercise of prerogative power must derive its validity from, and must ultimately be authorized by a [Parliamentary] statute.
2. UK Ministers intend to submit a “Great Repeal Bill” to Parliament to repeal the 1972 European Communities Act and convert existing EU law into domestic law. However, the Ministers’ intentions are not law, and the courts cannot proceed on the assumption that they will necessarily become law.
3. Once the UK gives Notice of its decision to trigger Article 50 of the Treaty of Lisbon, the country will inevitably cease at a later date to be a member of the EU and a party to the EU Treaties. That is, the UK will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the UK, whether or not the UK Parliament actually repeals the 1972 Act. The giving of Notice would therefore pre-empt the decision of Parliament on any Great Repeal Bill. It would be tantamount to a far-reaching alteration of the (domestic) law, purely by ministerial action.
For the record, let me give my final summary of the Article 50 decision handed down by the UK Supremes this week.
For the Majority (Lords Neuberger, Mance, Sumption, Kerr, Clarke, Wilson, and Hodge, plus (the radical feminist) Lady Hale):
The EU Treaties signed by UK Ministers (aka the Cabinet) do not only concern the international relations of the UK, which are usually administered under the Royal Prerogative. The Treaties are also a source of domestic UK law, and of domestic legal rights. Because of the constitutional principle of Parliamentary sovereignty over domestic UK laws, the Prerogative exercised by the Cabinet to make and unmake Treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties in the absence of an authorizing statute.
The UK’S European Communities Act of 1972, which is the main implementing law of the EU Treaties, has a constitutional character, because it establishes EU law as an independent and overriding source of UK domestic law. The primacy of EU law means that, unlike other rules of UK domestic law, EU law cannot be implicitly displaced by UK legislation which is inconsistent with it. Moreover, the legislative institutions of the EU can create or abrogate rules of law which then apply domestically in the UK, without the specific sanction of any UK institution. The 1972 Act therefore operates as a partial transfer of law-making powers, or an assignment of legislative competences, by the UK Parliament to EU law-abiding institutions, and so serves as a “conduit pipe” through which EU laws automatically become UK laws and take primacy over purely UK domestic laws.
For EU law to cease to have effect in UK domestic law would be a major change in UK constitutional arrangements. It is significant that the 1972 Act itself does not explicitly say that the EU rights it gives effect to in the UK should only prevail for so long as the UK Cabinet decides not to withdraw from the EU Treaties. And the Act itself also does not explicitly say that UK Ministers are free to withdraw the UK from the EU Treaties.
Absent a provision in the 1972 Act explicitly conferring a prerogative power on UK Ministers to withdraw from the EU Treaties, the Act cannot be changed by Ministerial decision alone. Yet merely giving Notice of an intention to abandon the EU Treaties means that within two years this 1972 Act will cease to operate in the UK. Thus, if Notice is given without Parliamentary authorization, the die will be cast for a change in UK domestic law and in UK constitutional arrangements before Parliament has become formally involved. That is why the Notice must itself be authorized by Parliament.
Fraudulent. An aggregation of information from various sources, including the website of the Supreme Court.
The equivalent of plagiarism. There must be a deep psychological need to appear more informed than one is.
Three members of the Supreme Court wrote separate dissenting opinions. The lengthiest of these was written by Lord Reed. What follows is a summary of Lord Reed’s dissent:
The conduct of foreign relations, including the making and unmaking of treaties, falls within the prerogative powers of the Cabinet. When the UK joined the EU by acceding to the EU Treaties, implementing legislation in the form of the UK European Communities Act of 1972 gave effect in the UK to EU law, thereby altering UK domestic law. Withdrawal from the EU will therefore again alter the law of the land.
The fact that significant legal changes will follow from withdrawing from the EU Treaties does not prevent the giving of a Notice to Withdraw, because the prerogative power to withdraw from the Treaties was not explicitly excluded by the language of the 1972 Act. While statutes enacted since 1972 have imposed Parliamentary controls over the exercise of prerogative powers in relation to EU Treaties, they have not touched the prerogative power to withdraw from these Treaties.
I accept the importance of the constitutional principle of Parliamentary supremacy over UK domestic law. However, Parliament recognized that rights given effect under the 1972 Act may be added to, altered or revoked without the necessity of a further Act of Parliament. The 1972 Act gave effect to EU law on a conditional basis only, and only insofar as the EU Treaties required it. That effect was, in other words, contingent on the UK remaining a party to those Treaties.
If Parliament grants rights on the basis, express or implied, that they will expire in certain circumstances, then no further legislation is needed if those circumstances occur. Parliament effectively stipulated that EU law should cease to have domestic effect in the event that EU Ministers decided to withdraw from the EU Treaties. Withdrawal from the EU Treaties means that there are no rights or powers which, in accordance with the Treaties, are to be given legal effect in the UK. Any rights that are lost when withdrawal occurs are not revoked by the exercise of prerogative powers. They are revoked by the operation of the 1972 Act itself.
In response to this point, the majority of the Court draw a distinction between changes in the content of EU law arising from new EU legislation, and changes resulting from UK withdrawal from the EU, because the latter removes the “conduit pipe” for EU law. There is no basis in the language of the 1972 Act for drawing any such distinction. Under the Act, alterations in the UK’s obligations under the EU Treaties are automatically reflected in alterations in UK domestic law. That is equally the position whether the alterations in the UK’s obligations under the EU Treaties result from the Treaties ceasing to apply to the UK, in accordance with Article 50 of the Lisbon Treaty, or from changes to the EU Treaties, or to legislation made under the EU Treaties.
The majority of the Court is mistaken in describing EU law as an independent source if UK domestic law. As a source of law, EU law, like legislation enacted by the devolved legislatures of Scotland and Northern Ireland, or delegated legislation made by Ministers, is entirely dependent on statute. It derives its authority from a UK statute, which itself derives its authority from the rule of recognition identifying Parliamentary legislation as a source of law. The recognition of its validity does not alter any fundamental principle of the constitution.
Also, it is worthy of note that in enacting legislation in 2015 authorizing a Brexit referendum, Parliament considered withdrawal from the EU, and made the referendum part of the process of taking the decision under Article 50. Parliament laid down no further role for itself in that process. In the absence of any provision requiring Parliamentary authorization of the decision, it is difficult to regard such a requirement as implicit.
Brexit Bill Clears First Parliamentary Hurdle
Photo credit: Pixabay Alicia Nicholls The Theresa May government may have lost its Supreme Court Appeal last month but today the Government’s Brexit bill cleared its first parliamentary hurdle. After fourteen hours of debate spread over two days, the House of Commons voted 498 to 114 in favour of the European Union (Notification of Withdrawal) […]
David,
This is a mis-reading of what has been submitted, a `100 wd Bill, which was supported by most of the ruling party, and the vast majority of the Opposition and many of the minority parties, including the DUP.
The votes against were mainly a few rebels in the Labour Party, mainly a continuing battle against Jeremy Corbin, and the Scottish National Party.
About 85 amendments which the article rightly states will now be debated in the committee stage of the Bill.
It is there that opposition will emerge; parliament’s intention is not to give the government a blank sheet when it goes in to discussions with the EU. It does not want to be presented with a fait accompli.
However, the real opposition will come in the House of Lords, which is dismissed briefly in the article.
It will not be as easy for the government as the article implies. Failure to understand the nuances is failure to understand what is taking place.
For example, Ken Clarke, spoke against the Bill. By not realising his influence in the Commons and in the wider society, the importance of that speech from a senior Tory can be mi-interpreted. The Commons will be the weaker when he goes at the next general election.
85-page amendments.
By the way, the government is publishing a White Paper today (Thurs) setting out its negotiating position. Given that previously it had claimed that it would be awful to declare your position before going in to negotiations.
This is the White Paper that will trigger the real debate.
@Hal
There will be many views informed by many perspectives. This is why as a people civil debate is an excellent tool to share knowledge and opinions.
Yes David, this is what one refers to as both deliberative and participatory democracy. Sadly lacking in Barbados particularly as the governing elites tend to hold on to information in secrecy and squash debate by name calling and vindictiveness. Freedom of Information Act is necessary, and we have to ensure that there are mechanisms that foster what you call civil debate. It is more healthy that obstructive.
@George
The greatest attribute we have as humans (civilised) is the opportunity to understand our value/purpose in life -the end result we help to make the world a better place.
David,
Civilised debate is a major way of passing on knowledge. In Barbados, due to our form of national education, people usually believe that if someone has different opinions they should be abused, ridiculed, and sometimes even threaten and beaten up. Or, they asked for your qualifications to have opposing views.
I think George is confusing the debate with references to different types of democracy. They are not all the same; just look at Trump, losing the popular vote, but winning the Electoral College; or the so-called Referendum in the UK, which some believe should have bypassed our parliamentary democracy.
@ Hal
Yes, I agree with your comment directed at David. It happens. Regarding the deliberative and participatory descriptions, I am sorry. There is no mix up and realistically these are not types of democracy never mind the prefixed usages. Trump won the elections based on the rules and what was allowed. Clinton had the same opportunities. The Democrats’ machinery to win was badly flawed and hence the result.
George,
Plse remind me of this when next we meet. Deliberative democracy disenfranchises the ordinary working guy. Look at Corbyn’s Labour Party, where the polytechnic lecturers and social workers are joining the Oxbridge mob to alienate the party’s very supporters.
@ Hal
Yes, looking forward to the healthy discussion and exchange of ideas. I shall also get back to you on merits and demerits of my proposed deliberative and participatory tools. I like the idea of giving voice to all.
Hal Austin, on February 2, 2017 at 1:12 PM:
“In Barbados, due to our form of national education, people usually believe that if someone has different opinions they should be abused, ridiculed, and sometimes even threaten [sic] and beaten up. Or, they asked [sic] for your qualifications to have opposing views.”
Hal Austin, on January 30, 2017 at 6:23 PM:
“Chad, I do not like being rude, but you are the most stupid and ill-informed person in this forum … Which university did you go to? What subject did you study? And when did you graduate?”
Doubtless chad is a mysogynist tool requiring pharmaceutical intervention to get it up these days, but at least his comments and thinking are not so replete with head-spinning contradictions.
Jays above calls to mind that line by Sir Walter Scott…….I wonder why it does?
“Oh what a tangled web we weave / When first we practice to deceive.”
Brexit White Paper Released by UK Government
Alicia Nicholls The Theresa May Government has today released its Brexit White Paper . The official policy document, which is entitled "The United Kingdom’s Exit from and new partnership with the European Union", was introduced into Parliament today by Brexit Secretary, David Davis. The House of Commons yesterday voted overwhelmingly for the Brexit Bill to […]
Jeremy Corbyn has just made it clear that Brexit is not the focus of the Labour Party campaign. It is education, the national health service, jobs, and, broadly, reforming the economy for the many and not the few.
Who was it in this forum that said the general election would be fought on Brexit?
It looks as if the government is in contempt of parliament by not publishing in full the legal advice it got over the Brexit deal. More power to parliament. Parliament is sovereign.
The blogmaster invites you to join the discussion.