Brexit court defeat for UK government

[UKBALoveStory]

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

[noajthan]

Government seems to be channelling Liam Byrne.

"I'm afraid there is no plan"

[Petaltop]

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.

[vinny]

Doesn't the UK Parliament represent democracy in the UK?

[Obie]

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.

[vinny]

Government loses Article 50 court case. What might it mean for Brexit?

[secret.simon]

Ardent remainers: don't let high court decision raise your hopes

Why are Remainers celebrating? This Judgment will give Brexit more legitimacy

[Manchester171]

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.

[secret.simon]

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.

[secret.simon]

Back to the central point of this thread.

The government has a good chance of winning the Brexit Supreme Court appeal

[secret.simon]

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?

[secret.simon]

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.

[vinny]

See also Nick Barber and Jeff King: Responding to Miller.

[Obie]

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.

[secret.simon]

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

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.

[Obie]

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.

[secret.simon]

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...

[Obie]

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.

[secret.simon]

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.

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’.

[Petaltop]

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?

[secret.simon]

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.

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.

[Manchester171]

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.

[secret.simon]

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.

[secret.simon]

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

[secret.simon]

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.