Brexit court defeat for UK government

[secret.simon]

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.

[Obie]

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.

[secret.simon]

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.

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.

[Obie]

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.

[secret.simon]

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.

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.

[Obie]

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.

[secret.simon]

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.

[secret.simon]

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.

[Obie]

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.

[secret.simon]

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.

[Obie]

Well one cannot help by question the meaning of this meaningless amendment.

House of Lords cannot help EEA national, and they clearly don't the interest of EEA natioanal's at heart.

The only way EEA national and their family can challenge this right wing, xenophobes and overzealous plagues in the tories, is through the courts.

My life has thought me that the only language that this government understands is one of legal force.

It is difficult to understand the mindset of this horrible government. They imposed brexit on us to sort out the in fighting in their party, and now they are blaming the EU for not helping them to clear the mess.

[secret.simon]

Facebook chat on Immigration, Brexit and Article 50 at 1:15PM with Jonathan Portes (Kings College London,formerly of NIESR) and Prof Anand Menon of the University of Westminster.

[secret.simon]

And now we are in the final home stretch. Theresa May is expected to get the authority to invoke Article 50 by Tuesday and is expected to invoke it either Tuesday or Wednesday.

EU prepares for Britain to trigger start of Brexit.

One UK government official involved in the process said he “hoped” that Article 50 could begin on Tuesday when Mrs May is due to address the House of Commons, but would certainly start by the end of the week.

Unusually, the normal budget debates have been taken off the schedule for parliamentary business for this week and replaced with three days of time for any ping-pong between the two Houses on the Brexit bill. The Lords are unlikely to insist on their amendments, but the FT article (above) suggests that up to twenty Conservative MPs may vote for the Lords amendments, including the amendment to grant EU citizens the right to remain in the UK unconditionally.

As has been pointed out frequently by others here, politics does not protect anybody, only the law does. So let the law suits commence (some have already started)!!!

[secret.simon]

Brexit day is going to be March 29th, the Wednesday after the 60th anniversary of the Treaty of Rome.

The FT thinks A sensible Brexit deal is more probable than you think. The Institute for Government has highlighted the scale of legislative work ahead, with estimating between seven and fifteen bills in addition to the Great Repeal Bill. Immigration will be dealt with through a separate bill, not the Great Repeal Bill.

Eastern Europeans fear second class future with Brexit as communities fear being treated differently to French and Germans.

[secret.simon]

But a case has been launched through the Irish courts in Dublin on this very point. The idea is to escalate it all the way to the ECJ, who can give a ruling binding on all EU member states and possibly on the Brexit process itself.

The plan to escalate a query to the ECJ/CJEU as regards the reversibility of Brexit through the Irish courts has been dropped, primarily on lack of time and cost grounds.

In other court-related news, Advocate-General Yves Bot will deliver his opinion in the Toufik Lounes case at the ECJ/CJEU tomorrow at 9AM. This case deals with whether EEA citizens who have exercised treaty rights in the past continue to retain the benefits of Directive 2004/38/EC as regards family members after acquiring British citizenship. While the Advocate-General opinion is not the Court's judgment, it is commonly the basis of the Court's judgment and hence is closely followed.