Is anybody able to find any article by a respectable body or individual agreeing with the Miller judgment? All the sources I refer to have respectfully disagreed with it. Here is the opinion of Lord Norton of Louth (Professor of Government at the University of Hull and a member of the Lords Constitution Committee) on the judgment.The High Court judgment: keep calm and carry on…
This Observer article seems to me to be a sound and correct summary of the situation at the moment.Observer: Brexit judgment reinforces the supremacy of parliament
And while all the world and the cat have been focussing on the London High Court judgment, the Independent points out that the earlier Belfast High Court's judgment, which went in the government's favour, might make the government's job more difficult.A ruling in Belfast makes the high court’s Brexit decision even more complicated than you think
Broadly, the two courts have differed on whether triggering Article 50 is a process that can be reversed (Yes says Belfast, No says London). If the former, that means that people's EU rights will not be lost imminently by merely triggering Article 50 and so the Government can do it without involving Parliament. If the latter, as people's EU rights have been legislated by Parliament, removing them requires Parliamentary approval.
Now, in a case of supreme irony, whether Article 50 can be reversed or not is a question of EU law and the Supreme Court may have to escalate this specific question (not the wider question of parliamentary supremacy) to the ECJ/CJEU in Luxembourg. I can only imagine the Daily Wail practically imploding with anger and rage.High Court Brexit judgment: do all roads lead to Luxembourg?
So, does that mean that Brexit is dead? No, far from it.
All that the Miller judgement says (and that is still subject to appeal) is that the government requires parliamentary approval for triggering Article 50. That moves the ball from the legal sphere to the political sphere. And politics is far more malleable than the law.
Firstly, the Miller judgment does not specify what form the parliamentary approval should take. One alternative would be a motion passed by both Houses to enable the government to trigger Article 50. In extremis
, that can be done in a day.
But in the UK, we do not have the equivalent to a US joint resolution and it can be argued that two separate motions by the two Houses does not constitute parliamentary approval.
What some commentators and politicians are already suggesting is a terse one-line Bill, with a short and sharp long-title (which limits what can be debated and amended in the bill). Such a bill could be passed through the Commons within a week. The Lords would be the trickier House to get it through. Some Conservative peers (such as Baroness Wheatcroft) and the Lib Dems lords (about a 100
) are on record as saying that they will almost certainly vote against such a bill, but the leader of the Labour Party in the Lords has already said that it will support the will of the people and will allow the bill to pass. The role of the Cross-Benchers will be crucial. One to watch is Lord Pannick, who is Ms. Miller's barrister in the Miller judgment and an influential cross-bencher.
Crucially, the government has much less control of Lords procedure and that makes it much harder to rush through legislation and it is not improbable the Lords will slow down the passage of the bill. However, historically, the Lords have always acceded to the public will and it is inconceivable that they will block it. It will be a case of detailed scrutiny in the Lords, but such a bill if introduced would pass before the end of March.
Such an Act of Parliament authorising triggering Article 50 is unassailable in a court of law and then Brexit will have to be triggered.
So, Brexit is not dead, not even on the operating theater table. It has just got an ankle sprain and is walking slowly, still alive but not kicking.
As a closing thought, it is hugely ironic that the details of Brexit will be thrashed out between an unelected Prime Minister and unelected EU commissioners, after being authorised and scrutinsed by unelected Lords. And we are in this situation because of a judgement by unelected judges. The will of the people is like a torrent of water, which is being diverted through structured canals of law and procedure so as not to inundate the landscape with a flood.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice. Being a Respected Guru does not mean I know more, it just means I can google better. Google knows it all.