Brexit court defeat for UK government

Petaltop wrote:They are the sevants of the people.

In the traditional British understanding of the role of MP, MPs were never delegates who voted according to how decisions were taken elsewhere, but independent representatives who voted according to their understanding of a specific issue.

MPs are meant to be representative of the communities electing them, something more obvious in the French title of the Canadian House of Commons (Chambre des Communes) than in the English title (in the English title, commons as in village common or common good, not as in commoners). The traditional Burkean view of a Member of Parliament has always been an MP is not bound by the public will, but that it is his duty to use his intellect, industry and judgement to deliver for the common good. It was a wonderful coincidence that the Miller judgment was delivered on the anniversary of Burke's famous speech to the electors of Bristol.

So, no, MPs are not bound by the results of the referendum. The UK has never had a democracy in the Swiss sense anyway. The democracy is moderated through Parliament.

Petaltop wrote: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?

The judges did not rule on the referendum, they ruled on the effects of the European Communities Act (ECA) and whether that restricted the right of the government to treat with foreign governments and organisations.

Legally, the situation for any treaty bar ones with the EU is clear. The government signs and ratifies treaties on its own. Parliament is made aware of treaties and can go into its detail if it so wishes, but it has no powers to stop ratification, which is done by the government.
Further reading - Treaties

The Miller judgment was about the ECA and the interaction of EU rights and UK law. It did not rule on the referendum.

I disagree with the Miller judgment on the same grounds as most legal commentators, in that the High Court has read more into the ECA 1972 than originally intended. Ironically, the High Court has behaved more like a European court in creating a chimera of intent rather than relying on good old-fashioned English principles of plain meaning. The fairly universal criticism of the High Court judgment will certainly suggest to the Supreme Court to be more measured and more specific in its judgment, which will after all become part of the fabric of our constitutional structure.

But the High Court was correct in making a ruling on it. Mob rule, even in the guise of a referendum, does not overthrow the rule of law. The rule of law provides certainty and continuity, while mob rule only provides confusion and chaos.

There was a case during World War I, when a German industrialist resident in the UK and interned during the War brought a case against an MP and won!!! I have faith in the British judicial system and I am sure that the Supreme Court will render a better ruling than the High Court.

secret.simon wrote: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.

Just a simple question. Who give the unskilled/low-skilled migrants work and why? The BRITISH employers. Because the employers feel they can control the immigrants who still have no clue how the system work in the UK and what are their working rights unlike the citizens. Besides their hard working attitude and availability to work bank holidays, weekends and night shift on minimum wage. So, the immigrants find it easy to get a job and send to their friends and relatives to follow them and get a job in their working place. Who is helping and motivating this? British Managers in factories, British HR Managers and British Working agencies Managers. So, the businesses are welcoming the unskilled immigrants with open arms. While a fraction of the public who they feel resentment about that.

Is Brexit reflects the will of British people? No. Only 16 million who voted out (England and Wales) with the turn out 72% of the registered Electorate 47 million. How much the percentages of who voted out? 34% That's why the High Supreme Court couldn't agree with such minority and a low percentage of votes to cut the ties with EU, without the parliament's votes. Adding that the royal family in different occasions hinted that the UK would be better in a strong EU.

Manchester171 wrote:Only 16 million who voted out (England and Wales) with the turn out 72% of the registered Electorate 47 million. How much the percentages of who voted out? 34%

The people who had the right to vote but did not turn out in effect opted not to speak and hence can not complain that their voices were not heard. As an aside, the referendum saw one of the highest electoral turnouts in British electoral history.

I will repeat again, the High Court was not making a judgment on Brexit or the validity of the referendum. They made a judgment on a narrow question of law regarding the ECA and whether it tied the government's hand in triggering Article 50.

There are already moves afoot (as I mentioned in an earlier post) to get parliamentary approval for triggering Article 50 if the Supreme Court agrees with the High Court. And it is highly unlikely that either House will block it. They may question the details, but are extremely unlikely to block it.

We are in for a turbulent few years, as the UK, the EU and the western world change.

My earlier point about not confusing populism/mob rule and democracy made in a more cogent manner by the Constitution Unit.

Apologies for the multiple posts today. It is a fast moving day.

Firstly, an excellent discussion with Prof Mark Elliot and Prof Catherine Barnard (both of the University of Cambridge) on the legal complexities of both the Miller judgment and of Brexit as a whole. Direct link to MP3 of today's episode (to download and listen during the daily commute to save time).

Secondly, the Supreme Court has accepted the Government's appeal of the High Court decision and has listed the court case for 5th to 8th December. The case will be streamed live on the Supreme Court website. The expectation is that the judgment would be delivered in January, but that depends on whether they have to make the reference to the ECJ/CJEU that I referred to in an earlier post.

Manchester171 wrote: Just a simple question. Who give the unskilled/low-skilled migrants work and why? The BRITISH employers. Because the employers feel they can control the immigrants who still have no clue how the system work in the UK and what are their working rights unlike the citizens. Besides their hard working attitude and availability to work bank holidays, weekends and night shift on minimum wage. So, the immigrants find it easy to get a job and send to their friends and relatives to follow them and get a job in their working place. Who is helping and motivating this? British Managers in factories, British HR Managers and British Working agencies Managers. So, the businesses are welcoming the unskilled immigrants with open arms. While a fraction of the public who they feel resentment about that.
.

Patronising and insulting. You are painting a false image of hoards of troglodite European immigrants who don't understand a word of English, let alone understanding UK employment laws, a bunch of Untermenschen willing to work for a dollar a day. Not even the most rabid Daily Express reader would reach this low.

Petaltop wrote:

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

They are the sevants of the people.

It is a common trait in the language used by the fascistoid/radical right wing(ei)r to identify their own opinion as the opinion of "the people".

A funny thing happened on my way to the Forum, however we don't practice Athenian democracy nor any form of democratic confederalism here.
Strictly old school Westphalian nation state 'democracy'.

As I had mentioned above.
Government 'prepares three-line Brexit bill'

Mark D'Arcy wrote:So if the government does lose its Supreme Court appeal, the result might be a short carefully-drafted bill, to be launched into the Commons in January, put through all its formal stages of debate within a couple of weeks and passed through the Lords in good time for the government's self-imposed deadline of triggering Article 50 by March.

While Lib Dem and SNP MPs might well conduct guerrilla operations, there would only be serious trouble if Labour decided to join in.... and with many Labour MPs surveying constituencies which voted emphatically for Leave, that may be problematic.

noajthan wrote:Strictly old school Westphalian nation state 'democracy'.

With respect, Noajthan, there is no such thing. Westphalian nation-state concerns the definition of a nation-state in international public law and does not in any case interact with the internal constitution of a nation-state. North Korea, Nazi Germany and the Stalinist USSR were all examples of a Westphalian nation-state that have nothing to do with democracy.

What we are, at least what I believe and hope we are, is a representative democracy. It is worth remembering that almost all democracies have wrestled with the question of how to moderate sudden populist movements and have almost always interposed non-elected brakes into their body-politic to cool things down (typically in their Upper Houses such as the US Senate and the British House of Lords, and the unelected judiciary in all countries except the US and Bolivia). We have then over time diluted such brakes and only now do we see the risks of having a system of governance that is as fickle as public opinion.

secret.simon wrote:

noajthan wrote:Strictly old school Westphalian nation state 'democracy'.

With respect, Noajthan, there is no such thing. Westphalian nation-state concerns the definition of a nation-state in international public law and does not in any case interact with the internal constitution of a nation-state. North Korea, Nazi Germany and the Stalinist USSR were all examples of a Westphalian nation-state that have nothing to do with democracy.

...

Simon, I know what I mean by my definition, a framework of democracy based on top-down power structures (for good or bad) rather than bottom-up; typically evolving and found in Western nations over past few hundred years.

And at least one of those 'leaders' used the constitution in place at the time to manouvere into power (before changing said constitution).

The transcripts of today's proceedings in the Supreme Court appeal of the Miller judgment.

The Supreme Court's webpage with the timetable of the arguments and links to written submissions and video feeds.

A reputation-only sweepstake on Twitter about the likely outcome of the Supreme Court appeal.

Another court case has also been launched about whether the UK government also needs parliamentary approval for exiting the EEA separately.

The latter may be moot if the Supreme Court rules against the government, in which case the government will have to enact an Act of Parliament to exit the EU. Such a Bill could include authorisation for exiting the EEA as well.

The government faces no meaningful opposition in the Commons, with leading lights in Labour, such as Keir Starmer, the Shadow Brexit Secretary, agreeing with the government that the vote for Brexit was a vote for control of immigration.

The Lords may not be so obliging and there may be some late night sittings. But the Labour Shadow Leader of the House of Lords has also said that they will not block Brexit, though they will question ministers on details.

Does any body know when the supreme court judgement is due?

The Supreme Court only resumed from its Christmas Break today. I would expect the judgment either next week or the week after (i.e some time in January).

The date of the judgment will likely be updated on the Supreme Court's webpage on the Miller case.

Remember that even if the Supreme Court states that the government needs parliamentary approval for Article 50, the Brexit process will rumble on, with the added frisson of a parliamentary bill being debated. Such a bill, authorising the government to trigger Article 50 (and possibly Article 127 of the EEA Agreement), is expected to clear both Houses before the end of March.

We on these forums are also awaiting the outcome of the MM case, about the requirement for £18,600 Miniumum Income Requirement to sponsor the non-EEA spouses of British citizens and people settled in the UK.

In more positive news (which I have not seen reported anywhere else, so take with a pinch of salt), U.K. Considers Promising EU Citizens They Can Stay After Brexit.

Interesting to see the same Government representative releasing contradictory statements to the press in a period of 24 hours, and basically making completely different statements before a Commons Select Committee (on Tuesday) and a Lords committee a day after.

I watched the Lords EU Committee session with David Jones (a minister at DExEU) and an immigration minister from the HO today and they both categorically ruled out unilateral decision to guarantee rights of EU nationals here.

dapto10 wrote:Interesting to see the same Government representative releasing contradictory statements to the press in a period of 24 hours, and basically making completely different statements before a Commons Select Committee (on Tuesday) and a Lords committee a day after.

That would explain why the news was not covered in more than one news source.

dapto10 wrote:I watched the Lords EU Committee session with David Jones (a minister at DExEU) and an immigration minister from the HO today and they both categorically ruled out unilateral decision to guarantee rights of EU nationals here.

Not a conventional source of entertainment, but nice to see a fellow politics nerd on the forum.

Government will lose Brexit supreme court case, ministers believe

A seven-four verdict against the government is expected, by the government.

Ministers have privately conceded that they are very likely to lose a landmark legal case on Brexit in the supreme court and have drawn up at least two versions of a bill that could be tabled after the ruling.
...
It is understood that more than one possible bill has been prepared so that the ministers are ready to respond to any detailed guidance from the judges into what the legislation should look like.
...
And while they think they are likely to lose the case being brought by Gina Miller, which would require them to publish an act of parliament, they are more confident about other aspects. In particular, they do not think it is likely that the judges will order May to seek agreement from the Scottish and Welsh devolved administrations before starting the Brexit process.
...

In other words, Nicola Sturgeon may not have the brake on Brexit that she wanted.

secret.simon wrote: In other words, Nicola Sturgeon may not have the brake on Brexit that she wanted.

You are sounding like the right wing tories and press in the UK.

Sturgeon already has her break. Nearly two thirds of her people voted to stay in the EU.


What could possibly be more of a break than that?

I tend to think of myself as a centrist, but then by definition, I am to the right of people on the left of the political spectrum.

Scotland only comprises 8% of the population of the UK. The UK, as a country, voted for a particular path and while Scotland remains a part of the UK, it should respect that the country as a whole voted for a different outcome. It should be consulted, as should be all regions and other nations in the UK, but at the end of the day, the decision is taken by the country as a whole. Brexit will occur between the UK as an entity and the EU as another.

If she does not like the direction of travel, Nicola Sturgeon can of course opt for the ultimate decoupling; indyref2. That is her choice. Otherwise, she should remember that her car is attached to a specific train driven by somebody else and that she is not driving.

The Orkney Islands are also looking at the possibility of an Orkit. That example may be followed by the Shetland Islands and Western Isles, which used to be ruled by Norway till the 15th century.

Okay lets just keep things in perspective Simon, and lets not get carried away.

You need not trouble yourself with identifying your political position, as many people on the forum will be pretty conversant with your positions on the issues. I for one, am confident as to which part of the political spectrum your view are derived from.

The comments i responded to was in regards to your views on the effect of a 7-4 vote on the Scottish First minister.

I was merely stating that she has the support of her people, and a 7-4 vote could not conceivably add anything to that legitimacy that she holds.

The UK voted to leave the EU, but the UK problem is Teressa May's problem as she is the Prime Minister of the UK.

The obligation of the Scottish First Minister is to represent her people and her view, even if they differ from that of the UK as a whole.

I can tell you that contrary to the view of the England right wing press, Mrs Surgeon is on the right side of public opinion.

Her party has an almost majority in the Scottish Parliament, and she is representing the interest of her people.

Therefore i think this view that UK voted, is simply outrageous and ignores the fact that there are 4 countries that makes up the UK, and those nations have their own devolved government and powers.

The First Minister of those government represent the views of their people.

The fact that Sturgeon's popularity in the UK is more than some leading Westminster political leaders speaks volume.

To summarise my views, the Supreme court ruling cannot add anymore to the legitimacy that Nichola Sturgeon than she already has from 2/3rd of her people.

She represent the Scottish people and nation and not the UK or Northern Ireland.

She has a more principled position than may, who has been consistently pushed in different position by the wave of right wing over-hyperactive zealots in the Torie party.

Scotland has always been a nation before it joined union with the UK, and will continue to be so. Suppressing the views of the people of Scotland will assist no one or maintain the Unity of the UK.

Obie wrote:Okay lets just keep things in perspective Simon, and lets not get carried away.

Says the pot to the kettle.

Obie wrote:You need not trouble yourself with identifying your political position, as many people on the forum will be pretty conversant with your positions on the issues. I for one, am confident as to which part of the political spectrum your view are derived from.

And you could be wrong. I argued the Remain side of the argument with a colleague of mine, who was a Commonwealth migrant like myself, but didn't just vote for Brexit, but campaigned for it in a heavily Remain part of the country.

My arguments are meant to highlight that no one side of the argument is wholly correct.

The Scottish Parliament and the National Assembly of Wales, as currently constituted, are creatures of Acts of Parliament of the Parliament at Westminster. From that point of view, Nicola Sturgeon has about as much authority as the leader of the Oxfordshire County Council.

One could argue that there are four nations in the UK, but it is one state.

Obie wrote:The obligation of the Scottish First Minister is to represent her people and her view, even if they differ from that of the UK as a whole.

Quite correct too, and such representation should be treated with the respect due to a leader of 8% of the country.

Obie wrote:Mrs Surgeon is on the right side of public opinion.

And yet the referendum went against her point of view.

Obie wrote:right wing over-hyperactive zealots in the Torie party.

I find it delightfully amusing that the zealots of the Tory party are called as such, but that the SNP, which is about as zealous as you can get on some topics, is "on the right side of public opinion". From my point of view, both are extremists (in political terms) and should be treated thus (i.e. their arguments should be discounted by the amount of zeal they show for their cause).

The more zeal and passion you show for a cause, the less likely that you will be rational and thoughtful about it.

Obie wrote:Suppressing the views of the people of Scotland will assist no one or maintain the Unity of the UK.

Thence my earlier suggestion that Nicola Sturgeon should call an indyref2.

If I get onto a train from London to Edinburgh, I can't then negotiate with the driver to divert the train to Cardiff. This is the direction of travel of the train, you're either in or out.

secret.simon wrote:

Obie wrote:Okay lets just keep things in perspective Simon, and lets not get carried away.

Says the pot to the kettle.

What do you mean by that? I have tried to be courteous towards you, and tried to reason with you as a supposedly educated person, and i don't know why the insult. I can see no reason for your abrasive, irrational and confrontational response.

I formed a view of you Simon over an extended period. I have ready your post, observed your responses to contributors over a significant period of time, i know my thoughts of what i read.

The SNP are nothing remotely as close as the Tories fanatics.

They are fighting for the interest of Scotland, and for fairness. The Tories are however advancing ideological, or fallacious and distorted views to advance their party interest. They are clearly not acting in the national interest unlike the SNP.

Like them or not, the SNP are not on the wrong side of their public opinion.

Many English people voted to leave the EU, but still want to maintain access to the single market and the custom union and have free movement within the EU. The Tories are clearly not pursuing these interest.

They want to unleash economical harm on people, and applying a policy of divide and rule, and villification of innocent people who have only entered the UK to work and make lives for themselves. Like for example the Immigration minister suggesting a charge of £1000 for any employer seeking to bring an EU national into the UK.

These EU national that pays the taxes which their citizens get from benefits. How can that be anything other than what i described it as.

There's another dimention of the single market debate. It will be interesting to see how law will be interpreted when it comes to the EEA.

The Single Market is effectively the popular name of the EEA. Members of the EEA are the EU states and the EFTA countries. And there's an interesting fact there, hopefully I'm not completely wrong in my reading of it.

The UK joined the EEA with a separate act of Parliament, the EEA Act 1993. The first bit of legislation was the Single European Act from the 1980s (not sure about the year). The interesting thing here is that each EEA member state is a signatory in their individual rigth, not en-bloc (Maggie Thatcher's idea). So if / when we leave the EU, we will still technically be part of the EEA. In order to leave the EEA we'll have to invoke Article 127 of the EEA Agreement and that one requires a 12-month notice.

A simple example how complex the EEA is: Croatia is the latest state that joined the EU. For quite some time it was (and probably still is) a provisional member of the EEA (as a EU member) until all EEA member states ratify the association agreement with that country. Which means EEA does not mean EU and leaving the EU does not automatically mean leaving the EEA.

I personally don't see where and what is the Brexiteer's problem with the EEA, and I do believe it's all ideological, far from any logic even if we talk about the so called sovereignty. The EEA is not part of the Customs Union, the 4th freedom there is explicitly 'free movement of labour' as opposed to 'freemovement of people' and countries have greater control. As a matter of fact Liechtenstein have full control over their borders. Trade disputes are not regulated by the ECJ but at the EFTA court.

One thing Brexiteers forget or prefer not to tell their audience is that whatever major trade deal we enter into, there will be some sort of a court. Call it a panel or arbitrage, whatever you call it, it is effectively a court that interprets the treaties and enforces the rules. Otherwise there can't be a trade deal.

Things will become more and more intriguing and sadly even more stressful for all our friends, co-workers and family members living here and originally from EEA countries.

I may be totally wrong but this is how I see the EEA situation.

BClassBritish wrote:Does any body know when the supreme court judgement is due?

Tuesday, 24th January at 9:30 AM. The judgment hand down will last around five minutes.

David Davis preparing to address Parliament in the hours after Supreme Court verdict

It seems that the government has pretty much accepted that the verdict will go against them. I am fairly certain that an earlier version of the article had suggested that the bill authorising Brexit may be introduced in Parliament on Tuesday itself.

A very elegantly simple explanation of what this court case is about.

I would also recommend to others to keep an eye out for Brexit based events being held in universities and other organisations local to you. Remember that to fight an idea, you have to know about it and understand it. Blindly fighting and idea without having the foggiest idea about it will lead nowhere.

Eventbrite listings for Brexit in London. Of possible particular interest: FREE event: BREXIT and EU Immigration on 11th February.

KCL London seminar series on Brexit(costs £20 per seminar). Seminar of particular interest: 14 February 2017: Citizenship; with Professor Eleanor Spaventa in the Chair.

UCL London: Global Citizenship in a post-Brexit world. Keir Starmer, shadow Brexit secretary will be speaking.