Were the High Court judges right to demand that Parliament votes on Brexit?

Original post by _Fergo

That will vastly depend on what type of a Bill is put forward. The government may well troll everyone and propose a "the government will handle the matter" bill. Nonetheless, it's usually the committees that do the scrutinising work anyway, and I hope the constitution-related ones will do their best.

And to clarify, I didn't mean that Parliament can set that terms itself - along with the committees, it is just meant to act as the scrutiniser.

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I don't think the Govt is going to put forward anything as complicated as a bill, maybe something as simple as "Should we invoke Article 50?" for a vote, this should satisfied the Court ruling.

Reply 43

Original post by Blimey1000

I don't think the Govt is going to put forward anything as complicated as a bill, maybe something as simple as "Should we invoke Article 50?" for a vote, this should satisfied the Court ruling.

No it won't. The import of the decision is that only a bill will do. I don't think this is correct, but it the effect of the decision.

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Reply 44

Original post by Bornblue

It isn't nonsense when it comes to law.
Our court can only decide issues on a matter of law. Therefore the fact that the referendum was not legally binding and technically only advisory is massive, as it means our courts cannot take it into account.

Our courts cannot go 'ah well it was not legally binding but we are going to say it was because it should have been'.

The populist right seem to be arguing that our judges should abandon legal and constitutional principles and make decisions based on politics.

Agreed.

I would go further... no referendums, as it stands can ever be "legally binding" as only and only Parliament have the right to create and repeal laws. Parliament would have to pass an Act which transfers their right to create Law to the Referendum ... this has never happened.

Reply 45

Original post by nulli tertius

No it won't. The import of the decision is that only a bill will do. I don't think this is correct, but it the effect of the decision.

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I don't understand, why does it needs a bill? ....please expand...

(edited 7 years ago)

Reply 46

_Fergo

Original post by Blimey1000

I don't understand, why does it needs a bill? ....please expand...

In line with the High Court decision, the govt requires an Act to proceed with the negotiations and essentially repeal the authority of the ECA (the Bill of which can be very simple or highly detailed).

A vote on its own is not sufficient (and in any case a vote is required for an Act).

(edited 7 years ago)

Reply 47

alexp1901

The fact of the matter is that, if you read the official judicial result, you will find that parliament is effectively all the areas of Britain represented in one building. The government would be making a decision that the laws of this country would not allow them to make. Also, do you trust the head judge, out of the Supreme Court, the head judge of the Court of Appeal and one of the other most senior judges in this country?

Reply 48

Classical Liberal

There are only two explanations for what happened in court. Either the government is entirely clueless and doesn't even understand some of the most basic case law of UK legislation or the government knew full well it wasn't going to win the legal case and May sounding off about triggering article 50 in March and saying parliament wouldn't get a vote was intentional misleading information.

Either way, the level of trust we should have in the May administration should be pretty low at this point. Thank goodness the British people will get some parliamentary oversight.

Reply 49

Original post by Classical Liberal

There are only two explanations for what happened in court. Either the government is entirely clueless and doesn't even understand some of the most basic case law of UK legislation or the government knew full well it wasn't going to win the legal case and May sounding off about triggering article 50 in March and saying parliament wouldn't get a vote was intentional misleading information.

Either way, the level of trust we should have in the May administration should be pretty low at this point. Thank goodness the British people will get some parliamentary oversight.

They were clueless. This was written by a man who, like me, believes the government did have the power to activate Article 50 without Parliamentary legislation. He is a professor of constitutional law and I am not. This was written after the government's written argument was published but before the case was heard. Not to put too fine a point on it, it says the government's arguments were crap.

https://publiclawforeveryone.com/2016/09/30/the-governments-case-in-the-article-50-litigation-a-critique/

This is the government's case.

https://www.bindmans.com/uploads/files/documents/Defendant_s_Detailed_Grounds_of_Resistance_for_publication.PDF

Paragraphs 13-18 were conceded by the government to be wrong at the hearing (although not only were they asserted to be right at the Belfast hearing; they won in Belfast!)

Goodness knows where the government dredged up the Magdalen[e] College case from. That wouldn't even figure on a university course dealing with perogative powers.

And so on and so forth

Reply 50

the IT MAN

14

# Brexit means Brexit

Reply 51

Original post by the IT MAN

# Brexit means Brexit

It is a good job Theresa May is Prime Minister rather than editor of the Oxford English Dictionary.

Reply 52

jamestg

Original post by FallenPetal

The Brexit vote was explicitly laid out as an advisory referendum

Not to the people

BUT

The HC were absolutely right.

Reply 53

Original post by _Fergo

In line with the High Court decision, the govt requires an Act to proceed with the negotiations and essentially repeal the authority of the ECA (the Bill of which can be very simple or highly detailed).

A vote on its own is not sufficient (and in any case a vote is required for an Act).

Where in the High Court ruling did they specifically ask for an Act?

Parliament can vote (e.g. condemning Mugabe etc etc) on anything they want, it doesn't have to end in an Act. The Govt have scheduled The "Great Repeal" Act to repeal our original EU Act, which will end the ECJ authority, but this doesn't have to be directly connected with invoking Article 50 per-se.

I think the Court is saying the Govt can't invoke Article 50 using Royal Prerogative i.e. it's not within the Govt power to invoke, which belongs to Parliament only.

(edited 7 years ago)

Reply 54

Original post by Blimey1000

Where in the High Court ruling did they specifically ask for an Act?

Paras 95 and 96. Para 95 is the Claimant's argument that an Act of Parliament is needed and para 96 is the court agreeing with that submission.

Reply 55

alexp1901

Initiating article 50 would lead to undoing an act of Parliament (1972 European Communities Act definitely and possibly many others) and so requires Parliament to agree to it, as, basically, only Parliament can make and undo laws at wish.

Reply 56

Original post by alexp1901

Initiating article 50 would lead to undoing an act of Parliament (1972 European Communities Act definitely and possibly many others) and so requires Parliament to agree to it, as, basically, only Parliament can make and undo laws at wish.

That isn't quite the claimants' argument.

The claimants say that they derive personal rights from a combination of the 1972 Act and the Treaties which take effect because of the 1972 Act. Giving the Article 50 notice doesn't repeal the 1972 Act. However, because (as they wrongly say and the government wrongly agrees) the Article 50 notice is irrevocable and because giving the Article 50 notice ends up with us leaving two years' later (unless a deal is struck with all the EU countries with some other terms) giving the Article 50 notice deprives them of those personal legal rights.

Reply 57

Original post by nulli tertius

Paras 95 and 96. Para 95 is the Claimant's argument that an Act of Parliament is needed and para 96 is the court agreeing with that submission.

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

I stand corrected. However, it does says "either expressly or by necessary implication by an Act of Parliament" ... I read "either expressly or..." as a vote to say yes/no on invoking Article 50. So an Act is nice, but not needed.

Reply 58

_Fergo

Original post by Blimey1000

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

I stand corrected. However, it does says "either expressly or by necessary implication by an Act of Parliament" ... I read "either expressly or..." as a vote to say yes/no on invoking Article 50. So an Act is nice, but not needed.

Of course it is. A vote in Parliament outside an Act of Parliament is mostly symbolic. The gvt cannot use its prerogative in the exit process, which means Parliament MUST legislate.

If you read previous cases, such as Factortame, you'll see that judges make it clear that only the most express words in an Act will repeal the ECA. This means there must be both an Act and that Act must be very clear.

The UK will be in breach of the EU treaties if does not formally exit, and to do that both the Art 50 process must be followed and the ECA repealed.

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Reply 59

_Fergo