This is potentially a game-changer!

[pensivepolly]

Breaking news from the High Court on Article 50: www.theguardian.com/politics/2016/nov/03/parliament-must-trigger-brexit-high-court-rules

Sweden was my bad, meant to write switzerland, fingers on autopilot (or possibly autocomplete).

"Manifesto promises are not entirely pointless"

I agree. How else do we even pretend to have some form of political system. However, as battle lines are now being drawn, and the wealthy remain camp have fired a salvo that any and all aspects will be legally scrutinised and challenged and the full weight of judicial process be brought to bear...its worth pointing out that legally challenging a subsequent manifesto promise, isn't going to be difficult as precedent has already been set.

The referendum isn't simply a manifesto promise, its part of constitutional law and as such has to have parliaments assent to do so.

You can't challenge on manifesto promises, there is already legal precedent for that.

The "wealthy remain camp"? Oh so less wealthy than the combined might of the Barclay Brothers, Aaron Banks, Lord Rothmere, Paul Dacre and Rupert Murdoch?

The elites narrative really is rubbish you know.

Misti, "t allows a two year period to determine and negotiate the terms of exit. You don't simply give notice and walk."

The Lisbon Treaty allows two years to negotiate and remove ourselves from a huge raft of financial obligations that we are currently tied long term to. This is the money we pay to them and the monies we receive. This is also the various programmes we are a party to, such as Erasmus etc. Giving notice on a contract means negotiating out of it. There is nothing in the Lisbon Treaty that states we have 2 years to negotiate new trade deals. It's simply about exiting the union. Indeed, Lisbon doesn't read, "if you leave we demand you carry on trading with us under terms we decide". Quite the opposite.

The EU haven't shifted (on the whole) that their position will be the contracted one. No membership no single market access.

Chris two years is plainly much too short to make trade deals. It would however allow for negotiation of the terms of departure - full leave or transitional arrangement involving EEA membership.

Vulpe, I agree with everything you've just said. My points seem to be getting flipped over in some way... (or are you just saying the same?). My points being, Labour promised a referendum. Then u turned. Was then legally challenged and the judgment upheld that despite a manifesto promise, there's no legal obligation to deliver. That's my point. Misti believed a GE with all sides spelling out their view of Brexit, will resolve the situation. Legally, no it wont.

Yes, both sides have enough resources to tie up in legal challenges every step now attempted. That too is my point.

In light of both of those, there's only one thing that can be relied on. The Lisbon Treaty that we have ratified. The exit will be by the terms of that treaty we have already agreed. Its in or out.

Sorry I do agree with that too!

"Chris two years is plainly much too short to make trade deals. It would however allow for negotiation of the terms of departure - full leave or transitional arrangement involving EEA membership."

You would hope. However, there's no obligation on the EU to offer EEA membership. If Jeremy Corbyn can find that agreed commitment somewhere in the LT, we'd all be far far happier.

Vulpe, all I will say is, they started it. By foolishly launching a legal action in the face of a democratic won result, (really? Challenging the implementation of a very rare, truly democratic decision?) Mrs Miller et al, has set wheels in motion she hasn't a clue about. It shouldn't have mattered to Mrs Miller if the Westminster cleaner sent the note to Brussels. The cleaners have as much influence on the Lisbon Treaty as our Parliament and our judiciary combined. Gates, horses and bolt springs to mind.

I don't think the legal action as foolish. In terms of the treaty, if we hadn't been seen to follow the constitutional process of the country, which we wouldn't have done if it had been issued under royal prerogative, then the declaration of article 50 would have been void anyway.

I think the legal case was important, it has shown that really democracy and sovereignty, the only valid reasons for voting out, were actually bullshit.

The MPs gave up their right to decide when they offered the decision to the nation. That was absolutely constitutionally correct and legal. That abdication of decision making was enacted by the 2015 EU referendum act. This will of course have to be decided by the Supreme Court, but TM is correct in seeking higher clarification as any future referendum, as it stands today, will be utterly impotent. If the Supreme Court agree with the Miller verdict, then referenda will have to be removed from our constitution. Doesn't exactly do what it says on the tin does it?

"That abdication of decision making was enacted by the 2015 EU referendum act."

Which states that the referendum was advisory, so no they did not abdicate their right to decide, its there in the very act, it also says that no time limits have to be placed on it, and that it doesn't actually have to be acted upon.

It is also not constitutionally legal as we have a representative democracy, not a direct one, so in order for it to be constitutionally legal it would have to go through parliament.

"Doesn't exactly do what it says on the tin does it?"

No it doesn't do exactly what it said in the act though.

Some of your posts come across as very accurate, especially on article 50, but you have totally misunderstood this.

The act states that the referendum is advisory, it has to go through parliament, and the Supreme Court will agree with that it is unconstitutional for it not to.

www.legislation.gov.uk/ukpga/2015/36/pdfs/ukpga_20150036_en.pdf

Can you show me where vulpe or ref the paras please

Chris, can you show me in the act where it says it IS legally binding and that time limits etc are set?

By their very absence makes it clear, so it does say so in the very act ( amongst all the legalese and references to the previous acts that make this one possible) that the result is not legally binding, and is advisory.

For it to be legally binding would mean that we would have had to have had major constitutional reform prior to the referendum where by parliamentary sovereignty would be displaced by the sovereignty of the electorate in the case of referendums. Farrage admitted as much this morning on Andrew Marr.

So no time frame, no conditions, and no need for the result of the referendum to be enacted.

It would be in the act if it were.

So, as I said, the very act which allows the referendum takes place specifically does set out the fact that it is advisory and not legally binding.

Democracy and sovereignty, don't ya just love it?

from the ruling:

"basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy" in the UK, which "led to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question".
"No such language is used in the 2015 Referendum Act,"

If Brexit doesn't go through I'll feel embarrassed for Britain as it'll be the day democracy died. In fact, why bother voting for anything in future as the majority vote obviously means nothing.

Vulpe, you clearly stated in you post, all your points were clearly stated in the referendum Act.

I asked you to show me, and youve reverted to the Miller Case judgment.

You are, as many are, mis-understanding masses of hot air flying around.

Either show me, where in the 2015 referendum act, it states its only advisory or any other points you are relying on, or accept, your view is based on the Miller judgment........and their view is one of "ommision".

TM is absolutely right to challenge this judgment. Our senior judiciary are selected by royal prerogative. There are many many headless chickens running around at the moment. The impact of this judgment (which considering they were not asked to judge on the legality of the referendum, but were asked to judge on the royal prerogative) is bigger than huge. It is constitutionally far reaching. TM must get absolute clarity on the assumptions the judges in the Miller case used.

You put Farage up as the authority on this. I will just say, as TM our Prime Minister stated yesterday:

"I believe it is important for the UK Government to deliver on that and I think that MPs and peers should recognise the fact that there was a parliamentary decision to give the choice as to whether we stayed in the EU to the people through a referendum. We saw the result of that and it is now our job to get on and deliver it.’"

I re-iterate. MPs, Parliament and the Prime Minister, abdicated their right to decide by the 2015 EU Referendum Act as we have the constitutional right to do. Everything else is hot air and very expensive opinion.

Chris, can you show me in the act where it says it IS legally binding and that time limits etc are set?

Yes. Opening para of Chapter 36 of the 2015 Referendum Act. Yes. Para 1 (1). Yes. Para 1(3)

All other information regards legality is contained there to, in all subsections. Acts of Parliament, voted and passed by our MPs, are enshrined in law. Thats our constitution.

Chris1234567890 There are no provisions in the EU Referendum act to formally set out what would happen in the event of a vote to Leave the EU.

Compare that to the AV referendum bill which was not an advisory referendum, which (a) set out the AV system provisions and (b) stated that the Minister must make an order bringing those provisions into force if the result of the referendum was to implement AV.

As the UK voted against AV, there had to be an order to repeal those AV provisions.

It's an interesting question, that given the UK knows how to draft a non-advisory referendum, why it wasn't done for the EU referendum?

It's also interesting the number of amendments that were knocked back which, with hindsight, would have been eminently sensible to avoid the position that Scotland and N Ireland now find themselves in.

Chris1234567890

Yes. Opening para of Chapter 36 of the 2015 Referendum Act. Yes. Para 1 (1). Yes. Para 1(3)

Para 1 (1) says that a referendum will be held, and Para 1 (3) states the dates that it must be held between.

That has nothing to do with it being binding or a date set by which to implement its result.

"all your points were clearly stated in the referendum Act"

They are in the act, by their omission, if the act was legally binding then it would have to have stated so, because referendums in the UK are advisory because parliament is sovereign.

There are no provisions in the act that set out what will happen if the vote goes to leaving the EU.

There are no acts of parliament which have set out that referendums are binding, and no acts which give up the sovereignty of parliament.

I think you are reading into this what you want to, I linked to the case to show that it backs my opinion.

Even Nigel Farage admits that the Referendum was not legally binding.

"There are no provisions in the EU Referendum act to formally set out what would happen in the event of a vote to Leave the EU. "

Because that wasnt neccesary. Those terms have already been agreed by the Lisbon Treaty.

Comparison to the AV referendum is a moot point, as membership to the EU has clearly been defined in the previous treaties ratified. Exiting those treaties are subject to the agreement we gave to the EU when entering.

To argue the terms of exit, on a previously ratified treaty ( .....is indeed, gate, horses, bolt) but would indeed have required an act of parliament on referenda, to ask to change terms of a previously ratified treaty. That would be impossible to do, as our contract is with the EU. A member state, cant just, after the event, decide they dont like the terms, hold a referendum, have a vote, then dictate to the other party (the EU) that they (the EU) must bow to the now 'law' of that member state, and vary the terms of the original treaty. The only way to vary the terms, is to get full agreement from all member states. This is why, Labours manifesto promise on a referendum BEFORE we signed Lisbon was so important. They were elected, based on that promise. A representative parliament must be exactly that, representative. However, the subsequent legal challenge to Labours U-turn failed as the court judged a manifesto promise is not legally binding.

When people talk about a constitutional crisis. This is the mess we are in. A manifesto is not enforceable as the basis of what you are 'representing'. (We digress)

The AV referendum indeed needed to clarify the position on 'decision' as that very position was being upheld by the decision it was being asked to make. A constitutional change would have had to be made if the AV vote had succeeded.

There was no requirement to change our constitution by deciding if we wanted to continue with our contract with the EU or not. HOWEVER, due to those very 2 important legal challenges, a/ on manifesto (no party was going to xhallenge this further as who on earth wishes to keep to manifesto promises?) and b/ on Miller, it is absolutely right that TM now gets the highest direction from the Supreme court to clarify. Whilst the initial act wouldnt change constitutional law, the judgments subsequently do.

The Miller case was simply to ask to clarify the PMs right to use Royal prerogative. Now that is a whole different debate, but yes, as it now stands, our judiciary are in place by the very prerogative the miller case has over ruled.

To say, the 2015 EU Referendum Act stated it was "only advisory", is wholly incorrect.

"I think you are reading into this what you want to, I linked to the case to show that it backs my opinion."

And thats the point. Opinion. Nothing is "stated" because its "omitted". You persist in saying the Act states its advisory only. It doesnt.

The Act is very clear about the decision that was asked to be made. To the extent that the legalities placed on the Electoral Commission, within that Act, (to ensure the electorate totally understood WHAT that decision was), were clearly laid out. The Electoral Commision were obligated to ensure that the electorate understood. The publicity and Electoral Commisions campaign of "The Nation Decides", couldnt have been clearer and ensured all terms of the Act, were adhered to.