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

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ECA still bites irrespective of Article 50 initiation, it is the triggering of a process, not the execution of withdrawal that would render prior statute a dead letter in and of itself (and said withdrawal is not, necessarily, a forgone conclusion, following Article 50 notification of an intent to withdraw, so this defence cannot be argued either)

In order for the exit to be formalised, the ECA will need to be withdrawn. If it is not withdrawn, EU law would continue having supremacy and direct effect over and within national law. By initiating Art 50, the UK would essentially be initiating the process of repealing the ECA (which is NOT possible). For that in and of itself, Parliament has a right to know about the exit process because IT will vote on the withdrawal of the Act.

The Royal Prerogative allows the government to create international agreements when such agreements, but only when and if such relations and treaties do not affect domestic law in such a dramatic way- i.e. as the EU does.

As the court clearly explained (if you bothered to read the case), there was no provision in the ECA that the government would retain its prerogative powers in relation to the then European Community, in that it would be able to change domestic law without Parliamentary authorisation.

Original post by Foo.mp3

Would they indeed. Thanks for letting us know, sport :smile:

So pray tell, which judgment (i.e case) have you read, that makes you think that the government CAN in and of itself strip the ECA of its authority?

I'd like to know because you're contending to know better than three of the most senior judges in the land and their very well-reasoned judgment. [And no, this is not an appeal to authority because I've already explained above.]

Reply 61

_Fergo

Original post by Foo.mp3

You appear to have completely missed the point :dontknow:

I understood what you're saying - triggering Art 50 and revoking the ECA are issues that have to be taken together. The ECA -as the ECJ will likely rule if the case is referred to it by the Supreme Court- will definitely hold that 'constitutional arrangements' would require an official repeal of the ECA.

You can't trigger Art 50 and then hold on to the ECA (unless the government 'repealed' it on its own, which as I have said is not possible).

Reply 62

RogerOxon

Original post by biglad2k16

Or do you think that it impedes on the peoples' decision to leave?

They're experts, so I would assume that they got it right, on the legal issues that they examine. It's about the legal process that is required, not the outcome.

Reply 63

_Fergo

Original post by Foo.mp3

Article 50 provides for the notification of an intention to withdraw, affording the UK up to two years grace: a period in which to negotiate a Brexit, absent any relevant agreement being reached between the parties in respect of continued ostensible 'membership' of one form or another

Such relevant agreements might include an undertaking to remain party to the Treaties of the EU/EEA such that the ECA need not be substantially amended/annulled and continues to bite, and/or an undertaking to put the matter of its amendment/repeal before parliament

The ECA is a matter of domestic law and such statute does not govern the particularities of the execution of foreign policy/diplomacy, to include prerogative powers to renegotiate/ignore particular treaty obligations, nor has it ever done

Gosh this is tiresome.

Article 50:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

Domestic law is obviously very important in the process - it's central.
Even if Britain maintained the treaties, the ECA would have to be amended or re-enacted to reflect the new relationship.

"The clear and necessary implication from the provisions of the 1972 Act was that Parliament intended EU rights to have effect in domestic law, and that that effect should not be capable of being undone or overridden by the Crown in the exercise of its prerogative powers."

And as the Court said in par 10:
"(1) a notice under Article 50(2) cannot be withdrawn, once it is given; and
(2) Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50(2)."

And in par 11: "Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to an agreement on an extension of time between the United Kingdom and the European Council (acting unanimously) as set out in Article 50(3) or the earlier making of a withdrawal agreement between the United Kingdom and the European Council (acting by a qualified majority and with the consent of the European Parliament). The effect of the giving of notice under Article 50 on relevant rights is direct, even though the Article 50 process will take a while to be worked through."

The substantive discussion about future relations is immaterial to the procedural foundations of Art 50.

Have you read the judgment? Every objection you have is readily answered in the judges' reasoning.

(edited 7 years ago)

Reply 64

RetiredAccount89

Original post by FallenPetal

The Brexit vote was explicitly laid out as an advisory referendum, where the final say was always going to go to Parliament. While I think it's an absolute disgrace that this fact was buried under propaganda about migration and £350 million to the NHS, thus leading people to believe that the Brexit vote means Brexit, it was never the peoples' decision to leave - that right has always belonged to the representatives of the people, the House of Parliament. All the High Court did was legally enforce that right; it didn't grant it out of thin air.

And frankly, I find setting the legal precedent that the Prime Minister can override Parliament on such big decisions a far larger miscarriage of democracy, even if Parliament ultimately vetoes Brexit (as it has always had the right to do so).

I saw an interesting article which essentially stated the rationale for the referendum vote as it was held.
Remeber this is the same govt who argue that a union cannot go on strike based upon >50% of those who voted saying so, (this is what tories proposed in 2015

•

At least 50% of members entitled to vote must do so for ballots on industrial action to be valid. Currently balloting rules do not require any specific level of participation by union members.

•

40% of those eligible to vote must back action for strikes in core public services (Health, Education, Transport & Fire Services). Ballots currently require a simple majority to back action)

The referendum was advisory because it was set up to be. In order to be binding they would have had to set a much higher standard such as the above which was not met.

Even when Farage was on the Marr show he admitted it was advisory.

In which case the judges were entirely right.

Joe idiot public is getting riled up at the wrong people. The judges are spot on. It is upto the public to pressure their MPs to support Brexit in the parliment vote as per the 'national will'.

Reply 65

_Fergo

Original post by Foo.mp3

Possibly, at which juncture t'would go before parliament

As the court judgment WHICH I LINKED states, this is NOT possible.
I cited the relevant paragraphs from the judgment. Read them and spare me the repetition.

Original post by Foo.mp3

Triggering Article 50 does not alter EU rights, as far as I'm aware, and given the "constitutional requirements condition", if one cannot, finally, execute Brexit without parliamentary approval, the UK may not withdraw, having served notice, until such time as said requirements are met (e.g. by way of a future vote in parliament); thus, it is not capable of being undone or overridden using prerogative powers as the UK would not be permitted to withdraw other than in a manner consistent with constitutional requirements and, those not being in place, Article 50 could be nullified, ex post

Seriously? The judgment answers that in precise terms. Why don't you just read it?

Triggering Art 50 DOES alter EU rights, because the process is irrevocable and unconditional. Once initiated, a State cannot backtrack, nor may it condition that the agreements will only be valid if Parliament accepts. There thus CANNOT be a future vote following Art 50, because the process will conclude whether Parliament agrees or not.

In essence, if Parliament were asked to vote after the triggering of Art 50, and voted no, that would be immaterial because the process would have to continue regardless. In that sense, the Royal Prerogative would nullify domestic law and EU rights without Parliamentary approval.

Hence, the court said that Parliament must vote on the matter beforehand, because it voting afterwards would be meaningless and would infringe its sovereign status.

There isn't an easier way to explain this.

Reply 66

_Fergo

Original post by Foo.mp3

My observations do not constitute ex ante conditional notice, they relate to ex post nullification, a possibility that arguably renders proceeding with Article 50 on the basis of prerogative consistent with our constitutional conventions as it would not, necessarily, trump statuary sovereignty (depending upon the view of The High/EU Courts)

That's what I'm saying - this is not possible. By definition it being unconditional means that it cannot be nullified. Upon triggering Art 50, the UK will cease to be an EU member after 2 years (or later IF the Commission grants an extension, which they might do given the complexity of the matters).

Original post by Foo.mp3

I believe you have erred in this assumption, and am not alone in this interpretation

Dude please... read paras 11 and 12 of the judgment. This is not my assumption - it's stated clearly in the authoritative judgment. Web commentary is quite frankly unreliable and meaningless when the court details this in its judgment. [Although I'll concede that Elliott is incredible]

Original post by Foo.mp3

EU courts may find the UK to be in breach of the constitutional requirement, ex post, in the absence of parliamentary approval needed to secure statutory changes necessary to facilitate our withdrawal (e.g. given an executive order to withdraw found, arguably, to be inconsistent with our constitutional requirements, on the basis of said absence)

The ECJ may indeed find so, but this will only happen if the case is brought to it by a nation or individual pertinent to sufficient locus standi. The Court cannot intervene if someone has not filed a claim.

In that case, the Supreme Court is VERY likely to refer the case to the ECJ (so ironical indeed), which will -given the protectionist measures- request that Parliament vote.

The High Court has given a supremely coherent, logical argument, and the Supreme Court (or the ECJ if the case is referred to it) don't really have much space to find an error of law (in the sense of a majority).

(edited 7 years ago)

Reply 67

Mr Gumbil

Yes, although I suspect hidden agenda, not all judges are impartial but yeah you can read the argument if you wish.

As for the referendum not being 'binding' I voted to leave, but not strongly, but if parliament overrided it I would actually vote someone like Trump into power.

Reply 68

_Fergo

Original post by Foo.mp3

It is not possible to apply further conditions, however, it is expressly conditional, as you yourself have cited, upon the criterion of constitutional compliance (which would be arguable in any case, even were it not explicitly stated as a condition in Article 50)

That's the point I'm trying to make - in such a case, only the ECJ could nullify the triggering of Art 50. No one else. In itself this is not viable, and you cannot possibly tell me that the government should use its prerogative to initiate the process, but then if it finds a hurdle it should go to the ECJ to nullify the process...?

Given the expansionary approach of the ECJ, it would most likely take the wording de facto.

Original post by Foo.mp3

If I believed that then I wouldn't be posting here in the first place. The law is open to interpretation and judges are fallible mortals

Obviously. There's a difference between books/journals and website (I hope you realise that difference). Elliott, no matter how good he is, is not a 'god' either, and clearly not as authoritative as three judges.

Original post by Foo.mp3

They have some, and that's the point. Granted, it may be seen as a bit thin, but it's arguable, as I have demonstrated

We'll see I guess... I maintain my position though.

Reply 69

nulli tertius

Original post by _Fergo

Well if you want the opinion of someone who, if not God, is at least God's lawyer

https://ukconstitutionallaw.org/2016/10/26/john-finnis-terminating-treaty-based-uk-rights/

https://ukconstitutionallaw.org/2016/11/02/john-finnis-terminating-treaty-based-uk-rights-a-supplementary-note/

and this clearly is intended to be cited as an academic paper

Reply 70

_Fergo

Original post by nulli tertius

Thanks for these. Will read!

Reply 71

AperfectBalance

Clearly since people hate democracy now we should have gone through with it no questions asked.

Reply 72

_Fergo

Original post by Foo.mp3

Are you suggesting that only the UK government could appeal to the ECJ to have the process nullified?

Where did I make such a suggestion?

Reply 73

_Fergo

Original post by Foo.mp3

Just seeking clarification (and making an implied point in so doing) :yy:

Already explained that 'point' is both impractical and unreasonable.

And in any case will most likely be resolved before March 2017.

Reply 74

_Fergo

Original post by Foo.mp3

Not sure you catch my drift but aye, we'll see how things develop. At any rate, the High Court judges can rest easy knowing MP's tend to prefer not to risk a lynch mob and hence wouldn't dream of going against the will of the people, certainly not after the #MAGA tsunami!

Oh I do hon... your point has been singular.

Quite ironic for a brexiter to refer to fellow brexiters as 'lynch mob' - it's all I've been saying all along!

But, the judges are not concerned about politics. They are concerned about the law. That's something you should remember.