Brexit court defeat for UK government

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Brexit court defeat for UK government

Postby UKBALoveStory » Thu Nov 03, 2016 11:23 am

I am not an immigration adviser...All IMHO.
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Re: Brexit court defeat for UK government

Postby noajthan » Thu Nov 03, 2016 11:44 am

Government seems to be channelling Liam Byrne.

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Re: Brexit court defeat for UK government

Postby Petaltop » Thu Nov 03, 2016 5:28 pm

UKBALoveStory wrote:http://www.bbc.co.uk/news/uk-politics-37857785


They are going to appeal and I hope they win. It doesn't bode well if the democracy of one vote per person, can be overruled by the servants of the people.
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Re: Brexit court defeat for UK government

Postby vinny » Thu Nov 03, 2016 11:16 pm

Doesn't the UK Parliament represent democracy in the UK?
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Re: Brexit court defeat for UK government

Postby Obie » Fri Nov 04, 2016 1:17 am

vinny wrote:Doesn't the UK Parliament represent democracy in the UK?


Precisely.

I have always thought there is a division of power between the Judiciary, executive and legislator.

The Court's duty is to interpret the law, which is precisely what they have done.

They are perfectly within their right to do it, and the reasons given are robust, and makes an interesting reading.
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Re: Brexit court defeat for UK government

Postby vinny » Fri Nov 04, 2016 1:25 am

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Re: Brexit court defeat for UK government

Postby secret.simon » Fri Nov 04, 2016 6:05 am

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.
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Re: Brexit court defeat for UK government

Postby Manchester171 » Sat Nov 05, 2016 9:13 am

I believe everything is only a show. A party who wants to stay in the power as long as they can. A party who split up into two groups as pro-EU and Brexiters to stay in the power no matter what the result of the referendum would be. The Brexit will never happen.The Scottish Party and Labour Party have a say in the parliament even if they would do another election. The referendum was only guidance on what the public want but it was not an obligation to change the laws without the next stage of the Parliament's approval. This is normal legal procedures worldwide that only parliament must vote in order to change the laws but British public were super excited and thought the referendum result was enough.
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Re: Brexit court defeat for UK government

Postby secret.simon » Sat Nov 05, 2016 3:05 pm

Paragraphs 1 -36 of the Miller judgment gives a very good overview of the constitutional structure of the UK and the interplay of the various parts of government within the UK. Worth a read.

I agree that Brexit can still be avoided. But people assume that Brexit not happening means that the status quo with regards to immigration prevails. And that is simply not the case.

Brexit has made it abundantly clear that unlimited migration, especially unskilled/low-skilled migration, to the UK is not welcome. So, migrants are less likely to choose to come to the UK.

Also, there has been a rise of nationalist parties across Eastern Europe and there is a possibility of their presence being felt in Western Europe. Even if they are not a part of government, the status of nationalist, anti-immigration parties as second or third largest parties in their legislatures will make it clear to the national governments of the EU that free movement is not really welcome.

It is true that it is practically impossible to get EU legislation in place without the approval of the EU Commission. But guess who appoints the EU Commission; the national governments. So, the new EU Commission appointed towards the end of 2018 may be much more open to ideas of restricting free movement. And that will be the case without a Brexit.

So, even if Brexit is avoided, the doors could be closing. Like the US elections, this is a situation that affords no optimism.
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Re: Brexit court defeat for UK government

Postby secret.simon » Sat Nov 05, 2016 6:14 pm

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.
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Re: Brexit court defeat for UK government

Postby secret.simon » Sat Nov 05, 2016 7:31 pm

For those here who are legally minded or just inclined to research into further depth on this topic, the Judicial Power Project has commissioned a short collection of analyses and critiques (and remember that critiques≠criticism) of the Miller judgment.

Miller: Expert Reactions

Also two blogs worth following for developments in the law.

Public law for everyone by Prof Mark Elliott of the University of Cambridge.

EU Law Analysis by Prof Steve Peers of the University of Essex.

Vinny: If you consider the links above relevant, could you transpose them (see what I did there) to the Brexit briefings thread?
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Re: Brexit court defeat for UK government

Postby secret.simon » Mon Nov 07, 2016 11:59 am

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.
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Re: Brexit court defeat for UK government

Postby vinny » Mon Nov 07, 2016 12:21 pm

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Re: Brexit court defeat for UK government

Postby Obie » Mon Nov 07, 2016 12:35 pm

secret.simon wrote:It is true that it is practically impossible to get EU legislation in place without the approval of the EU Commission. But guess who appoints the EU Commission; the national governments. So, the new EU Commission appointed towards the end of 2018 may be much more open to ideas of restricting free movement. And that will be the case without a Brexit.

So, even if Brexit is avoided, the doors could be closing. Like the US elections, this is a situation that affords no optimism.


I am quite troubled by your analysis of the EU and free movement and your comparison with the situation in America.

As a matter of Fact, the whole of the EU, even Denmark for that matter, have no issue with Intra-community movement. Their problems is with the EU external border, therefore there is no appetite within the EU for the restriction of EU national's movement.

The movement of people is an integral part of the single market, and no EU country, Even Ireland are open to a change of that.

It may be argued that there is support for the external border, but that has nothing to do with movement within the EU of Union citizens.

Therefore UK and EU see the concept of EU freemovement in a different way.

The situation in America again is totally different.

There you have Donald Trump, who is uniquely unfit to be a leader of the free world, a man who is temperamentally, intellectually and psychologically unfit to clean the floor of the white house, nevermind occupying it. Thankfully he will be out of the lives of decent people in just over 36 hours.

He is stoking a Nativist sentiment, xenophobic and misogynist strife in the US. However unlike in the UK, the USA is demographically different, and the views espouse by Trump, and his insult of women, muslims, African American, Hispanic and disabled people are likely to affect his.

Trump is a bit like a Benito Mussoliniand figure the more Rabid version of Farage, and his views may thrive in parts of UK and certains part of EUrope, but it has no place in America, save for the deplorable like the KKK whom he advocates for.

With the utmost respect, there are a world of difference between the examples or analogies you have given.
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Re: Brexit court defeat for UK government

Postby secret.simon » Mon Nov 07, 2016 1:04 pm

Wall Street Journal - Europe’s Populist Politicians Tap Into Deep-Seated Frustration

Washington Post - Trump is a threat to the West as we know it, even if he loses

RealClearPolitics wrote:The 'Populist International' — a loose group of anti-globalist European parties and politicians — will continue to advance.


Given that Trump is forecast to lose with upwards of 40% of the popular vote, that Marine Le Pen is forecast to get to the final stage of the French presidential elections and the AfD is forecast to get into the Bundestag, the swing towards a more socially conservative mood is visible and obvious across the Western world and therefore I would not hold out much hope for freedom of movement.

This totally unscientific poll by Deutsche Welle is suggesting support for Trump in France at 70%!!! Poland is at 65%, Latvia is above 50% and even liberal Finland is running at 45%.

Remember that the political pendulum swings both ways. We have had a very liberal twenty years as regards a swathe of topics from women and gay rights to immigration and freedom of movement. And now the pendulum is swinging the other way. We are most likely in for the same period of erosion of rights.

Politics giveth the law and politics taketh away.
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Re: Brexit court defeat for UK government

Postby Obie » Mon Nov 07, 2016 1:10 pm

If you understand US POLITICS well, you will appreciate that Trump is not getting the 40% you quoted, because of his view on Immigrant, Hispanic, African American, women, muslims. There is a variety of reasons why he is getting it. in Trumps own party, he received less than half of the republican votes in Primary . He essentially got a plurality of the votes, as opposed to a majority.
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Re: Brexit court defeat for UK government

Postby secret.simon » Mon Nov 07, 2016 1:14 pm

FiveThirtyEight National Polls overview

Plurality or majority does not matter so much in the grand scheme of things. The winner takes it all, the loser has to fall...
Last edited by secret.simon on Mon Nov 07, 2016 1:26 pm, edited 2 times in total.
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Re: Brexit court defeat for UK government

Postby Obie » Mon Nov 07, 2016 1:23 pm

I have no interest in discussing Donald Trump as he is not worthy of my audience. Suffice to say that his demagoguery views don't determine who the majority of American are.

The situation in England, is very different from the picture in UK nevermind America or the EU at large.

In the midwestern states, people are attracted by Trumps sentiment on Trade, which incidentally be problematic for american, than his lovely.
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Re: Brexit court defeat for UK government

Postby secret.simon » Mon Nov 07, 2016 3:33 pm

Thanks, Vinny, for the link you provided earlier.

I've been browsing through the blog and it is quite interesting how relatively unified the discussion on Miller is. Here is a post that goes to the nub of the law suit.

Mark Elliott and Hayley J. Hooper wrote:The key issue therefore concerns the legal status of those EU law rights which are enforceable in the UK only by operation of the ECA 1972. There are two ways of looking at this. The first sees the ECA as a conduit for the effect in domestic law of rights that are EU law rights. This, we contend, is the correct view. The second view — preferred by the Court — sees the ECA as the creator of domestic rights. By taking this view, the Court triggers the well-established constitutional principles concerning the extent of prerogative power. The upshot, on this view, is that the Government cannot use the prerogative to remove the rights in question — for that would entail using prerogative authority to ‘alter the law of the land’.
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Re: Brexit court defeat for UK government

Postby Petaltop » Tue Nov 08, 2016 11:43 am

vinny wrote:Doesn't the UK Parliament represent democracy in the UK?


They are the sevants of the people. You can't gtet more democratic than the, one person one vote system that was used by the British for Brexit.

As aked on another forum, has the UK ever been in the EU? That freedom of trade vote that took the UK into the EU, was on a public vote. In this judges view, it appears the UK being in the EU was never legal?

How about all the treaties that took the UK deeper into wha tht EU is now, many of these were only signed by the PM at the time. The Lisborn Treaty that many British didn't want, was mentioned in Labour's manifesto, that if you vote for us we will give the country a vote on this treaty. Once in, they then didn't and wasn't that treaty that was signed by then PM Brown, not represented correctly to parliment? On the judges thinking, how are these treaties legal in the UK either?
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