CROSS POSTED ON BYLINE.COM
The reaction to the High Court decision saying that Parliament should be able to debate and trigger Britain’s application to leave the EU has been both depressing and ludicrous.
Newspapers like the Sun, Daily Mail and Daily Telegraph have treated the judges as ” enemies of the people ” just for having the temerity to lay down what is a perfectly valid constitutional decision.
They have NOT ruled that Britain should never leave the European Union but only that our leaving should follow proper constitutional procedures.
The papers have whipped up popularism on a totally false premise and played to the ignorance of people about what is actually happening.
The people who voted to leave the European Union should be delighted not furious about what has happened.
Their main case for leaving the EU was that they didn’t want to be ruled by Brussels and wanted to take back our sovereignty to rule ourselves.
Well what has happened. A British court composed of British judges has ruled that a British Parliament should have the last word and decide how we leave the EU. Brussels or any other foreign power has not said a word.
That seems perfectly reasonable to me. We are a Parliamentary democracy who elect MPs to pass laws and take up issues on our behalf. What we had earlier this year was a referendum not a general election in which the people decided to leave the EU. Therefore it is Parliament not the government that should be guardian of that referendum.
The last general election was won by a party that promised a referendum on whether we should leave the EU, not on a mandate that we will leave the EU – you had to vote UKIP for that.
The other criticism of media coverage of this ruling is the despicable attack on both the person who brought the case and on the judges themselves. Anybody has a right to bring a case and the idea they should be pilloried for doing so is anathema to democracy.
And the attack on the judges – particularly the homophobic criticism of one of them – was absolutely beyond the pale. What right has the Daily Mail to highlight that one of the judges was gay. Do we have ruling that no gay judge can pass judgement in this country? That is utterly despicable – worthy more of Donald Trump than Paul Dacre.
There is another profound reason why Parliament should make the final decision. Yes we voted to leave the EU but nobody was given a clear picture of how we were going to leave the EU during the referendum. The No camp did not have a plan.
So given there about 57 Heinz varieties of doing so – it is right that our MPs and for that matter peers under the present system should debate how we are going to do it and question the government on their plans.
The government is arguing that to do so would give away their hand. This is ridiculous and untenable. If the government think they can negotiate in secret they misunderstand the role of the press in this country and Europe. their plans will inevitably be leaked and when it comes to the negotiations to leave in Europe- journalists will have the resources to tap officials from 28 countries to find out what is going on. Theresa May is living in cloud cuckoo land if she thinks she can keep a lid on it.
So what is all this sound and fury about this decision by the judges – in my view it is much ado about nothing. People should grow up and accept in a mature democracy the issue should be debated and decided in the best forum to safeguard our sovereignty- Parliament.
How the Government Lost
NOVEMBER 3, 2016 /
Today the High Court handed down judgment in the Article 50 litigation, and the court held that the government does not have the prerogative power to give notice under Article 50 of the Treaty of the European Union. Legislation to do so would therefore be required. I am as certain today as I was back in June that this decision is incorrect. The purpose of this post is to explain how the government managed to lose a case it should have won.
How the case was argued
The government argued, rightly, that the entering into and withdrawal from treaties are acts performed by the government under its prerogative powers. Prerogative powers may be removed by legislation, but no words in the European Communities Act 1972 or elsewhere did so. As a result, such powers continued and the government could invoke Article 50 without more ado.
[That this was, startlingly, the argument as put, see paragraph 80 of the judgment, Part II and III of the government’s skeleton argument, and the oral argument at
various points (eg pp 88).]
The claimants argued that a large number of rights created by United Kingdom statutes, principally the European Communities Act 1972, would be abrogated if the United Kingdom withdrew from the European Union. It is a fundamental principle of our constitution that rights
created by Parliament cannot be taken away by the government. Necessarily therefore, the unfettered exercise of prerogative power could not operate without prior legislative approval. The usual unfettered exercise of such prerogative power could no longer obtain.
As presented, the case is easy and obvious: the government loses. The idea that the government possesses the power to abrogate our rights, unless there is an express statutory provision taking away its power to do so, is absurd.
How the case should have been argued
In order to understand the law it is necessary to understand that there are two bodies of law in play. One is the domestic law of the United Kingdom. The other is international law which binds states. EU law, as such, is of the latter kind. It arises by virtue of agreement between
the Member States. Such law is given effect into United Kingdom law by s2(1) of the European Communities Act 1972.
So, it is a necessary condition of any such rights within UK domestic law that they exist under EU law. The rights we have under EU law vary overtime. These changes do not require fresh legislation but are given effect by s 2(1) (“from time to time”). The European Communities Act differs from other legislation in that EU law that is incorporated under it overrides any domestic law with which it is in conflict.
Article 50 is part of EU law. All of EU law as it applies to the UK is contingent on Article 50 not being invoked by the UK and the expiry of a two year period. This in turn means that all of EU law as incorporated into UK domestic law is similarly contingent. (Lawyers describe these conditions as being “conditions subsequent”: they cease to apply upon the happening of a future event.)
Once Art 50 is invoked, and two years expire, EU law ceases to apply to the United Kingdom at the international level. The only possible party that could give such notice is the government. It is the only actor in international law. At a domestic law level such rights etc cease to apply because of the European Communities Act. The exercise of the prerogative does not overturn or abrogate the rights created by the European Communities Act. Rather the Act itself states that these rights cease to apply.The occurrence of a condition bringing a right to an end is not the same as overruling that right.
If the case is properly argued, the government should win any appeal to the Supreme Court. It is astonishing that they have failed to do so so far. (The correct argument is just about discernible in the skeleton, at around paragraphs 36-37.)
Why did the Scotish Parliament take notice of the result of their referendum on leaving the UK? Perhaps the Scottish government can now overlook the result of their referendum and take a vote in the Scottish Parliament on whether to leave the UK.
David, you seem to be rather assuming that we’re in some sort of rational debate. When a national newspaper of considerable influence calls the judges “Enemies of the People”, we’re moving out of the area of discussion. The homophobia element was just a bit of quick and dirty opportunism, the key point is that the Mail is aiming to portray “the people’s opinion” as expressed in the referendum vote as having no legal or constitutional constraints. The Mail is obviously aware that the people’s opinion was incoherent. What it seems to be doing is creating an environment in which whoever can claim most forcefully to be expressing the voice of the people is entitled to determine national policy. Even if there is a Parliamentary vote of some sort, the climate of opinion that is being created will make it difficult for MPs dissenting from the people’s supposed opinion to avoid being pilloried as anti-democratic. The safeguards of our democracy are being undermined by the Klondykers who are busy staking first claim to our supposedly repatriated sovereignty.
“The Enemies of the People”, when I read these headlines, I feel that it is time for me to keep a suitcase under my bed, and be prepared to leave at a moments notice. Maybe England of my childhood years I viewed through a child’s eyes of innocence, so it could also be said in the Autumn of my life I see England not as a bed of Roses, but of prickly thorns. Many years ago I read “The Rise and Fall of the Third Reich” by William L. Shirer and I gained an insight into how a well educated people where manipulated and almost destroyed by their new rulers playing on their fears and prejudices.
Of course at the heart of this evil was that no other view would be tolerated and anyone having a different viewpoint became the enemies of the people. The propaganda machine attacked Liberals, Socialists, Communists, Trade Union Leaders, & Religious Leaders (if they dared raise their head above the parapet). I hope the alarm bells are starting to ring.
So the position now is that myself and 16,141,240 others who voted to remain are to be ignored and written off as bad losers. How to sow the seeds of discord , straight from the Joseph Goebbels handbook: and when one of use the Law we are branded as traitors.
There is another issue that needs to be addressed and that is the Prerogative Powers of the PM. Are we leaving the EU to regain Parliamentary Sovereignty then only to hand many of these powers to the British Prime-minister. People forget that a British PM as more powers than a US President. So when they talk about the return of Parliamentary Sovereignty are they been a bit economical with the truth. Another issue is that sovereignty itself in a modern world is a myth and even BOJO knows that.
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A couple of apposite links:
And acknowledgments to Dame Alun Roberts CH.
FYI folks, almost everything that is, or will go on over the next few years concerning Brexit is pretty much irrelevant as the CETA treaty has now been signed following objections from only one country over the secret courts to be used to settle disputes between large corporations and individual state governments. The new treaty, which is basically the old TTIP repackaged and is instituted from Canada instead of America, will give corporations the right to sue governments for actual of percieved/future loses due to restrictive legislation or trade deals done with other countries. We the tax payer will have to foot the bill, but we won’t have access to any information as to the proceedures, practices or rulings of those secret courts, as they are not covered by the freedom of information act. It’s basically a corporate power grab, and we will be tied into it as we have not left the EU before it was ratified :(.. penalties will run into billions and the NWO corporate government will bankrupt countries that dare get in their way. You have been warned..
Owen you can also go back a few years before 1933 and we all know where that ended up.
‘ …filled with enemies of the people, are hereby to be considered outlaws, and are to be arrested immediately and brought before the revolutionary court’.
Vladimir Lenin 28 November 1917.
In The Pub – the use of the term “enemies of the people” is a warning flag, like “cockroaches”, but the specific point about the juxtaposition of the Illustrierter Beobachter(?) article as I undrstand it was that the photos the papr featured included the pictures of judges. Who was Lenin referring to?
Christian Holliday, the Tory councillor for Burpham, set up the parliamentary petition to amend the Treason Felony Act 1848, which previously carried a penalty of death, in order to include anyone who still campaigns for Britain to remain part of the EU after it officially leaves. They did suspend him, but it does illustrate the nature of the Beast Cameron let loose, so I for one was pleased it destroyed his acting career.
Theresa May is not living in cloud Cuckoo land, she only gives the impression of being John Major 2. I just hope I am correct.
In a nutshell anyone who opposed him and his creed. A bit like the papers.
Reblogged this on Sid's Blog and commented:
Theresa May is living in cloud cuckoo land