Brexit court defeat for UK government

It may not be wholly relevant to your argument, but if I recall my history lessons correctly, the first inhabitants of the British Isles were hunter gatherers living here between 840,000 - 950,000 years ago. The Romans were the first invaders.

Casa wrote:It may not be wholly relevant to your argument, but if I recall my history lessons correctly, the first inhabitants of the British Isles were hunter gatherers living here between 840,000 - 950,000 years ago. The Romans were the first invaders.

Well the recorded history of Britain commences with the Roman invasion in AD43. That is the first recorded record of this Island.

I must restrain myself and not get into history issue .

I was merely seeking to make a point in regards to Petaltop''s statement.

Obie wrote:
I was merely seeking to make a point in regards to Petaltop''s statement.

It is obvious from your anti Britsh rants on here that you don't like the British, and I have said that to you before. Why travel thousands of miles to get to the UK and more to the point, then ask if you can stay if you don't have the life you had dreamed of for yourself?

Unless we are doing a job on their shortages lists, earing six figures, or investing millions, then they don't need us. We are their uninvited guests. If you gatecrashed a party, would you then proceed to tell the host what they can and can't do or b-i-t-c-h about them while in their house?

Many immigrants appreciate our lives in the UK and are grateful we can stay. It makes us cringe to hear these few who think they can tell the Brits what to do in their own country.

As for those migrants who can't accept democracy, why did you think that democracy meant that you could get what you wanted?

Petaltop, please if you don't have any positive and meaningful note regarding the topic of the thread just wait until you see Obei, again your note to Obie which i pasted below is disgusting and hurting,i for one don't seek any information from people like you at all. Everyone is free to move around the world if you can abide by the rule. I will be glad if you can let us know your own heritage,my own country accommodate westerners and we don't talk about them this way End off.


Quote' Petaltop. (SURGEON YOU KNOWS WHO LIKE BRITISH AND WHO DOESN'T)

It is obvious from your anti Britsh rants on here that you don't like the British, and I have said that to you before. Why travel thousands of miles to get to the UK and more to the point, then ask if you can stay if you don't have the life you had dreamed of for yourself?

Unless we are doing a job on their shortages lists, earing six figures, or investing millions, then they don't need us. We are their uninvited guests. If you gatecrashed a party, would you then proceed to tell the host what they can and can't do or b-i-t-c-h about them while in their house?

There is a risk that this thread is getting a little too lively and I will attempt to return it to its primary function: discussion of the Brexit court case and its fallout.

@PetalTop: While I appreciate that you pray-in-aid the concept of democracy, it means different things to different people. What I am fairly certain it does NOT mean either "tyranny of the majority" or ochlocracy (mob rule). The will and consent of the people is vital in almost all political system, but it is not the only consideration when taking decisions. Nor is there any rational reason why 50%+1 of people voting can make a decision binding on all. That is why political constitutions have mechanisms to draw out approval and opinions of a range of stakeholders. Unfortunately, in the past fifty to a hundred years, the people (around the world, not just in the UK) have developed a false sense of value as to the worth of their opinions. I would love to elaborate further drawing from both UK and US history, but lack of time forbids.

Now returning to the topic at hand.

Pages 25-30 of the Brexit White Paper expand on the government's thoughts on EU immigration and regulating it. Crucially, Page 10-11 also states that immigration will be dealt with by primary legislation (Act of Parliament), not secondary legislation (Rules and Regulations). That will make them harder to change and may also open up further possibilities.

During an academic Brexit seminar (I have a weird and strange life), one of the speakers suggested that it is not impossible that the government may create new pathways to citizenship for EU citizens already in the UK, as happened when the various routes for Commonwealth citizens for unlimited migration to the UK ended towards the end of the 1970s. It is mere chatter and drawing on analogies, but primary legislation means that a lot more possibilities for EU citizens in the UK emerge.

Amendments have also been put down for the Brexit bill due to be debated next week that will unilaterally give the EU citizens in the UK more certainty. These amendments seem to be backed by MPs from both sides of the House and debate (Leave and Remain). There is therefore a possibility (don't hold your breath though) that some of those amendments may pass into law.

Note that all the above (apart from the documents linked to) is speculation. Do not bet your bottom dollar on it. Just be aware of the possibilities.

Also see: Brexit white paper spells out need for new immigration laws.

And on a different note (dessert any one?), Assimilation and the immigration debate: shifting people’s attitudes

The Brexit Bill: your day-by-day guide to what happens next

Harriett Harman has put down an amendment specifically safeguarding the rights of EU citizens already in the UK. Given that she is a former Secretary of State AND current chair of the Joint Committee on Human Rights, there is a reasonably good chance (though not a certainty) that the amendment will be debated. It may not necessarily be accepted, but the mood of the Commons will indicate to the government whether to offer its own (better-drafted and more detailed) amendment when the bill is debated in the Lords.

To move the following Clause—

• “Effect of notification of withdrawal Nothing in this Act shall affect the continuation of those residence rights enjoyed by EU citizens lawfully resident in the United Kingdom on 23 June 2016, under or by virtue of Directive 2004/38/EC, after the United Kingdom’s withdrawal from the European Union.”

Member’s explanatory statement-This savings new clause is designed to protect the residence rights of those EU citizens who were lawfully resident in the United Kingdom on the date of the EU referendum. It would ensure that those rights do not fall away automatically two years after notice of withdrawal has been given, if no agreement is reached with the EU. This new clause would implement a recommendation made in paragraph 53 by the Joint Committee on Human Rights in its report ‘The human rights implications of Brexit’.

Note that the proposed date is the date of the referendum, not the date of triggering Article 50.

List of all proposed amendments as of 5th February 2017

I see this at page 103:

Meg Hillier
Mr Graham Allen
Ann Clwyd
Heidi Alexander
Stephen Timms
Mr David Lammy
Stella Creasy Ms Karen Buck Ann Coffey
Jim Dowd Mike Gapes Mrs Madeleine Moon
Mike Gapes Chris Leslie Mr Ben Bradshaw
Mr Barry Sheerman Caroline Lucas Angela Smith
Neil Coyle Stephen Doughty Helen Hayes
Meg Hillier Mark Durkan Dr Alasdair McDonnell
Ms Margaret Ritchie Paul Farrelly Maria Eagle
Luciana Berger Ian Murray
17
Clause 1, page 1, line 5, at end insert —
“(3) Before exercising power under subsection (1), the Prime Minister must give
undertakings that all EU citizens exercising their Treaty rights in the UK who—
(a) were resident in the UK on 23 June 2016, and
(b) had been resident since at least 23 December 2015
be granted permanent residence in the UK.”

Good spot.

Meg Hillier, as the chair of the Public Accounts Committee (the oldest select committee), is fairly senior in terms of parliamentary hierarchy. So, again, possible that that amendment may be called up for debate.

What mystifies me are the choice of dates and why a person needs to have been resident on both these dates to qualify for permanent residence.

“(3) Before exercising power under subsection (1), the Prime Minister must give undertakings that all EU citizens exercising their Treaty rights in the UK who—
(a) were resident in the UK on 23 June 2016, and
(b) had been resident since at least 23 December 2015
be granted permanent residence in the UK.”

Does the law require the EU citizens to be exercising their Treaty rights specifically on those two days at least? On either one? Or for atleast all the time in between the two dates? Or on the date of promulgation of the legislation? Or some other date altogether?

Also, the definition of permanent residence is unclear.

Does it mean PR under the EEA Regulations (in which case, how relevant is it after Brexit anyway)? In any case, even the Prime Minister can not grant PR under the EEA Regulations. Only EU law can do so.

Does it mean ILR? Or is it creating a completely new category of residence via primary legislation?

Also, does such amendment exclude non-EU EEA citizens (Swiss and Norwegian citizens, for example)?

You can see why I think backbench amendments are far too imprecisely drafted for them to be actually enacted. What typically happens, as I had mentioned earlier, is that the government gets a sense of the Commons wanting an amendment and introduces a better drafted (by government lawyers) amendment in the Lords, which can then be accepted by both Houses.

Thus far, all amendments moved so far have been voted down, with an almost consistent vote of 333 votes against for each amendment.

Commons Divisions

House of Commons - Votes and Proceedings (6th February 2017)

secret.simon wrote:...

What mystifies me are the choice of dates and why a person needs to have been resident on both these dates to qualify for permanent residence.

“(3) Before exercising power under subsection (1), the Prime Minister must give undertakings that all EU citizens exercising their Treaty rights in the UK who—
(a) were resident in the UK on 23 June 2016, and
(b) had been resident since at least 23 December 2015
be granted permanent residence in the UK.”

Does the law require the EU citizens to be exercising their Treaty rights specifically on those two days at least? On either one? Or for atleast all the time in between the two dates? Or on the date of promulgation of the legislation? Or some other date altogether?

...

Presumably some sort of 'committed to life in (and residing in) UK' test; similar to the 'proof of physical presence' test for naturalisation.

How do EU citizens prove that they were physically present in the UK on a certain date without landing cards, entry nor exit stamps?

If they go by that date then they are essentially implying that EU free movement rights ended on 23rd June 2016. That cannot be right since we are still a member of the EU for atleast another 2 years from the date Article 50 has been triggered and the Brexit date should be the date where exisiting resident rights are protected from.

The Labour ammendents also do not take into account non-EU family members of EU nationals and also those who benefit from EU law. What will happen to the rights of people who fall into these categories?

Look guys, this is going to be a political decision. Nothing will be based on acquired rights. Politicians write laws but are the first not understanding them, never mind respecting them.

I believe this brexit thing in regards to the right of EU citizens will have to be settled in UK courts one way or the other, and we are getting our armory ready for it.

As expected, the European Union (Notification of Withdrawal) Bill - aka the Brexit Bill - passed the Commons without amendment. To make a point, the SNP members sang the Anthem of Europe in the Chamber of the House of Commons during the last Division. Perhaps they should sign up for the Parliament Choir. The Parliament Choir had sang with the German Bundestag choir (Lohengrin from Wagner, I believe) on their visit to London in 2014.

Harriet Harman's amendment, which I had referred to above, was called, debated and defeated as expected (I really should apply for a job in political predictions). For those who are interested in the nitty-gritty of who voted for and against the specific amendment, it is Division 159 on this Hansard page. Those of you with Android devices can also download the Commons Votes app to see the details.

The bill now moves to the Lords, where it is not improbable that the government, lacking both a majority and procedural powers, may concede on certain minor points. The people that I expect to hear making good and detailed speeches are our former EU Commissioners, many of whom are in the Lords (such as Lords Mandelson, Kinnock and Patten) and who will have detailed knowledge of working inside the beast. Also, Lord Pannick, the barrister for Gina Miller, is highly influential and I look forward to his legal analysis in his contributions in the Lords.

The flipside of it is that the Lords see themselves as a tidying-up Chamber. Their interpretation of their role is that the Commons sets the policy out and they do the tidying-up bit. The rights of EU citizens in the UK could be considered tidying-up, or it could be considered tying up the government's negotiating position and hence out-of-bounds. It can go both ways.

But in any case, it is now highly unlikely (if not impossible) that the Brexit Bill will not pass. The triggering of Article 50 now is pretty much a done deal.

I think this will be a day of celebration for you Simon.

The Lord's may well reject it. It can go on for about a year, before the Lords can be bypassed.

So we still have a way to go.

I don't think European Citizens were expecting much from Harriet Harman.

EU citizens have their future in their hands, and don't depend on politician. They will seek to take the British Governments to the courts if any attempt is made to trample on their rights.

No government or Politician is bigger than the court.

Even Donald Trump will attest to this.

Obie wrote:The Lord's may well reject it. It can go on for about a year, before the Lords can be bypassed.

Well, the Lord Speaker and the Leader of the Labour Lords have both said that the Lords will pass the Brexit bill in about a month, though of course it is entirely possible that they may attempt to amend it. So, it is unlikely that the Lords will attempt to override the will of the Commons.

Obie wrote:EU citizens have their future in their hands, and don't depend on politician. They will seek to take the British Governments to the courts if any attempt is made to trample on their rights. No government or Politician is bigger than the court. Even Donald Trump will attest to this.

True, but Parliament as a body is above the courts. I suggest that you reread the Supreme Court judgment in the Miller case, with a particular emphasis on paragraphs 40-46.

43. This is because Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para 41 above. It was famously summarised by Professor Dicey as meaning that Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament” - op cit, p 38.

An Act of Parliament would be untouchable and unquestionable in the courts. Even EU law depends on an Act of Parliament (the European Communities Act 1972) for its application within the UK.

67. ...
That is because of the principle of Parliamentary sovereignty which is, as explained above, fundamental to the United Kingdom’s constitutional arrangements, and EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament.

Paragraph 182 specifically repudiates the EU law doctrine in Van Gend en Loos (Case C-26/62) [1963], that EU law creates obligations irrespective of national legislation.

The Great Repeal Bill that would be introduced after triggering Article 50 will, among other things, repeal that Act, thus ending the automatic application of EU law in the UK.

Simon you seem a bit confused. I told you EU citizens have their future in their hands and not in the hands of Politicians.

Politicians are not Parliament, just likes judges are not the court. The court is a supreme body and judges are mere servants or Judicial officers. So you are clearly wrong to equate politicians and parliament. Some politicians may well be law makers but they are not parliament.

Well if you follow the debate, the Government is aware that it will not repeal the all lot of EU law as that is likely to be chaotic. The government has said they do not want a cliff edge Br exit, and will bring changes to things like immigration gradually.

But Simon I believe EU nationals will do just fine. You need not worry about them.

Obie wrote:Politicians are not Parliament, just likes judges are not the court. The court is a supreme body and judges are mere servants or Judicial officers. So you are clearly wrong to equate politicians and parliament.

Well, Parliament is made up of politicians and it is a political beast. Similarly, judges constitute courts. It is all very well to say that one is not necessarily the other in theory, but they do interlink deeply in fact.

Obie wrote:But Simon I believe EU nationals will do just fine. You need not worry about them.

I am just keeping them informed with dispassionate updates.

I respectfully disagree with you Simon on politician and parliament.

The politician are exercising the power of parliament to make law, and to vote for or against those laws. The Judges are judicial officer, that the power is bestowed upon to make a decision on the interpretation of the law.

Obie wrote:I respectfully disagree with you Simon on politician and parliament.

The politician are exercising the power of parliament to make law, and to vote for or against those laws. The Judges are judicial officer, that the power is bestowed upon to make a decision on the interpretation of the law.

A fine (in at least two senses of that word) distinction indeed. Worthy of a lawyer.

In other news, it has been suggested that the reason that the Harman amendment failed, in spite of some Conservative MPs voicing support for it, was a letter sent by the Home Secretary to some Conservative MPs addressing their concerns in this field.

The Great Repeal Bill will not change our immigration system. This will be done through a separate Immigration Bill and subsequent secondary legislation so nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval.

There is a reasonably good chance that the House of Lords will vote to give EU citizens living in the UK before 23rd June 2016 (the date of the referendum) a right to remain in the UK. However, the Home Secretary has announced that it would be meaningless for the Lords to pass amendments, since the Government would use its majority in the Commons to dismiss them.

The more interesting development in recent days is that an unnamed/unpublished government report suggests that an end to freedom of movement into the UK will be announced at the same time as triggering the Article 50 process.

Such a move may leave multiple questions unanswered, such as the freedom of movement away from the UK and the status of people on the Surinder Singh route and Chen/Zambrano caretakers. I presume that there may be questions in the two Houses to clarify the situation before Article 50 is triggered.

The above post is likely to deceive people.

What the government said, is not ending Free Movement whiles UK is still a member of the EU.

They said they will provide a cut off time for new entrant, so that once UK leaves the EU those individuals will not be able to seek or obtain the right to stay in the UK permanently.

That position is clearly different from the headline on the post you cited, and the views you are seeking to espoused in regards to Suirinder Singh.

The position is that it will only affect the ability of new entrant to stay permanently, once UK has left, but the rules will continue to apply.

The UK said half the population of Romania and Bulgaria are planning to come to the UK, something i find quite absurd.

UK does not even come top of the locations for Bulgaria and Romania, so the Idea that half there population will come here is just crazy.

As expected, the House of Lords have voted to ask the government to protect the residency rights of EU citizens resident in the UK on the day the Bill is passed (expected in March 2017). The government has already declared its intent to try to remove the amendment when the bill returns to the Commons. But if the amendment were supported by Labour in the Commons, only a handful of Tory defections will keep the amendment intact.

The text of the amendment is

Within three months of exercising the power under section 1(1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future.”

The way the amendment is phrased, it is possible that people on the Surinder Singh route and Zambrano caretakers may not be covered.