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

I think there's real danger in the principle the government are trying to introduce here that allows them to use the royal prerogative to remove rights granted by Parliament and not be subject to parliamentary scrutiny.

I'd feel different if there had been a settled vision of what brexit meant in the referendum, but I don't think it's possible to argue there was.

makes a very clear statement it will be binding.

Binding on the Government only, that's my point.

The earlier document is a Parliamentary briefing paper - i.e. produced on behalf of Parliament and intended to set out a clear view of the situation.

The later document is a Government document - i.e. produced on behalf of the Government and making promises on behalf of the Government. Without the legislation to back up their promises it's all just hot air though. They can make all the promises they want but unless they can legally carry them out it isn't going to happen.

I've had a proper trawl through Hansard today and it's clear from some of the casual comments on the advisory nature of the referendum that it wasn't considered a big deal and the Government just assumed they'd be able to use the prerogative to do as they'd promised.

The Government blithely assumed that the answer would be Remain, so they wouldn't have to do anything. I haven't read Hansard, so I don't know whether that interpretation backs me up.

What's desperately needed now is to stop the stupid panic and entrenched positions, and for them to say, we need to properly consider the best options. Not just 'the best options for Brexit', so if it really was potentially a disaster for the country they should say so.

Tucker, thats why I linked it from the House of Commons briefing paper. Under sections 6 and 7 of the 2015 EU Ref Act, the government had to produce the 'Process for Exit' briefing (Im going from memory now as to its name, but that Feb 2016 briefing paper). Yes youre right it was a government produced paper, BUT, it was a legal requirement under the 2015 Act to be produced. That in itself, makes it part of the Act and it had to be presented to Parliament. Which it was.

Im guessing no one noticed the 'result will be final' exec summary at that time either. No one?

If a few people more under the difference between politically binding and legally binding that's a good thing. This is some progress at least. Mainly because I think its a pattern we are going to see rather a lot of over the next few years and we should be wise to what's really happening.

I think the difference is problematic as we could get into a situation where what is legally possible differs from what has been politically promised. (this is not just about the triggering of a50 by royal prerogative I might add.).

This is going to cause something of a situation and people are not going to be happy. I think at some point because of the complex nature of Brexit this is a likely rather than unlikely prospect.

Be prepared for it. Things are not going to run the way anyone on either side would like. Mainly because the whole thing is an shambles that wasn't properly legislated for in the first place and the way it has been handled subsequently is even more appalling as, when this issues become apparent instead of coming clean they are spinning in a particular way to try and suggest it is the failing of law rather than the failing of politicians.

This is not good for anyone, on either side and risks more than whether we end up with Brexit or not.

There will be more legal challenges to come. These are likely to be about rights and loss of rights. Or compensation for things. This again is likely to be spun as people being difficult, trying to thwart whatever or just simply trying to stiff the government somehow. This is not the case.

If this happens the fact that they end up in court is a reflection of the fact that government have failed to address the issue sooner and come up with a plan or solution to contain the problem. Thus people going to court are doing so, because they feel they have no other alternative as they have not been listened to earlier in the process.

This is why debating things in parliament is just so necessary. So the government can head them off before they get to court.

Every time something does get to court it is likely to create a ripple effect to other things or delay something or cost more than it should have if it had been handled proactively.

This is how Brexit is going to run for years. Possible for some time after we do eventually leave. Especially if the politicians fuck it up. The courts will be left to clean up their mess from their incompetence. And will bear the brunt of the moaning that comes along with it.

The thing is what it ultimately comes down to is piss poor management and a bunch of dicks blaming everyone else for them cocking up things.

So if and when this does start happening later down the line, ask the question is this something that could have been dealt with before by politicians by them taking explicit action to prevent the situation from happening and ending up in court. Chances are it will be...

I agree with a lot of that RedToothBrush. I don't quite understand why our leading politicians are getting such an easy ride on this. The fault for this mess lies squarely with them, and if any other industry had failed so categorically they'd be hauled up in front of select committees etc.

Chris, it might save you a bit of time if you consider that whether the referendum act was binding or not is so settled the government's submission in the case was that it was advisory.

I've not noticed this linked to before - UK Government agreed referendum could not be legally binding October 17th 2016.

In response, then-constitutional reform minister Mark Harper stated: “The Government agrees with this recommendation.

“Under the UK’s constitutional arrangements, Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

Red I agree too....(though I lost the plot on some of your post, but in general terms I agree on your sentiment).

Just playing devils advocate. There is a huge question that for me, that must be asked. Why in light of the Act, in light therefore of the contradictory briefings, in light of David Camerons promise to implement Article 50 the day after the referendum, did no one pipe up and say "you legally cant?" Disagreeing slightly with what you say red, but the Attourney General? A whole raft of legal government advisors? Legal observers? And no one points out that the referendum DOESNT give authority?

Weve long accepted government and politicians lie. Im not being idealistic. But this was all conducted under very public scrutiny. But no one, in any legal realm whatsoever, piped up? Astonishing. What was the judiciary going to do, if DC had issued Article 50 the day after? Were the 3 judges who ruled on Miller, (and are absolutely clear about their position on the status of the referendum, without any need for discussion whatsoever) on a years holiday with no access to the outside world?

Have the whole raft of UK judiciary sat back and allowed our PM of the day (DC) and our government, make statements to the people that they knew were untrue and unenforceable? Were the people of the UK, the nation, only entitled to legal advice, if we'd have written them a cheque?

The stink just gets stronger doesnt it.

There was no plan for a leave vote though Chris. And certainly no assumption that, in the event of a leave vote, the Gov would attempt to invoke A50 without any reference to Parliament.

I think that probably what everyone expected was an adult response to an unexpected situation which took the needs of the whole country into account - including the c.73% who didn't vote for Brexit. Maybe a council of interested parties would have been the way forward, but then maybe that's a bit 'liberal' for the people in power.

David Cameron never expected the vote to be Leave, or for Boris & Gove to turn against him during the campaign. He cocked up massively. It was a gamble and he lost.

A50 was never meant to be triggered, in his mind. I don't know what would've happened if he'd triggered A50 on the 24th June - it may well still have been challenged in the courts, as unconstitutional.

Fact is, someone was prepared to take it to court, and they won. We'll have to wait to see what the Supreme Court makes of it.

There is a chance the Supreme Court will allow the appeal. ISTM that there are several fairly compelling arguments the government's side could make, if they've a mind to. I'm not 100% sure that they've got the will to do it though, I still think it might all be a bit of a sham.

My problem is that I can detect sneakiness quite easily but I can never quite get into the mindset of genuinely sneaky people.

in light of David Camerons promise to implement Article 50 the day after the referendum, did no one pipe up and say "you legally cant?"
Because everyone was in a blind panic. Cameron would have been better staying on and saying something like that they had heard the public's opinion about a narrow preference to leave the EU, and then, as suggested, have a cross party enquiry as to the best way forward.

Instead, he threw in the towel immediately, thus showing how poor a PM he had been, IMO, and the Labour Party decided to commit Hari Kiri, but went and botched it and linger on crippled, instead of forming an Opposition.

Absolutely. No one expected the result. Defo not disputing that.

Absolutely agree Peregrina too, except that there was no blind panic in the build up and preparations for the referendum.

I too do think the Supreme Court have got lots of wriggle room. Exactly what rights did the high court believe were being eroded by the issueing A50? Not EU rights, as the EU still exists, so UK residents rights under the EU treaty?
Well the Human Rights Act isnt impacted, and we'd all agree absolutely, that any changes to any laws, whether EU originated or not, must be approved through parliament. So what rights did they believe, issuing notice, eroded? Issuing notice doesnt repeal any laws, only our intention to exit a treaty. What rights did we gain when we entered the EU?

I also believe they have wriggle room on the prerogative question in general. Agreeing it isnt particularly democratic, the point is, it does exist, and until Parliament (not the Judiciary) revoke the Royal Prerogative, it remains in its current form.

TM is not requesting to use the RP to change any laws. She is asking to issue notice. (Any and all laws remain in olace unless repealed by Parliament). Faced with the people vs the MPs issue, she has understandably gone this route.

The Miller verdict in my view is twofold, theyve linked their judgment stating the prerogative , if used in this case, erodes legal rights previously imposed by Parliament. Theyve been clear about the 'scrutiny' issue being put before parliament.

All well and good, except, the Lisbon Treaty doesnt allow us to negotiate, prior to issuing A50. Who knows what rights may or may not be impacted? Certainly, according to Lisbon, not the State wishing to give notice. Lisbon makes provision for a 2 year timescale to negotiate those details, but only AFTER notice is served.

No judge can make an order that places the defendant in immediate breach of that order. The same principles apply. Has the Miller judgment indeed placed the Government in a position they could not satisfy even if they wished to? In which case, the Supreme Court must over rule.

Just chewing the cud.....have the polls opened yet?!

Oh and, was the referendum only advisory? If it was, our entire judiciary need to be sent to the Tower with immediate effect, for sitting back and chuckling as observers, whilst these events unfolded.

I don't agree Chris.
As far as I can see, TM didn't have to choose people vs MPs. Until now, the talk has been MPs won't ratify it. WHy? Is there any evidence that this would/could be the case?
I believe that Most MPs will agree on triggering Art50. They are elected and they certainly do not want to be seen as going against what the population wants and not respecting 'democracy' (whether a referendum is a democratic way of solving such complex issue is a different matter).
Look at what all the different parties are saying. EVen Corbyn is agreeing that not starting the proceeding is not a possibility.

So really it isn't abot TM wanting to ensure that 'the will of the people will be respected'. That's what she wants us to believe, which is very different.

Chris, lots of people (legal experts, others) pointed out the advisory nature of the referendum before the vote. I certainly new about it, and I'm not a lawyer. See here, for example: app.ft.com/content/5b82031e-1056-31e1-8e0e-4e91774e27f1?sectionid=home

"If it was, our entire judiciary need to be sent to the Tower with immediate effect, for sitting back and chuckling as observers, whilst these events unfolded."

That's not how it works though. They're not evil overseeers, chuckling at politicians and us mere mortals from their high point on the death star.

They make decisions on points of law in cases laid before them.

What is not in any doubt is that the referendum was advisory though - it was a political promise by govt that it would be implemented, and so far the govt have kept that promise.

The ruling was that this change has to be put through Parliament - not just implemented by Royal prerogative.

Thus far, almost every MP I've heard talking about this have also publicly stated that they must, and will, honour the result of the referendum too. Just that it must be done properly, and debated in parliament.

Chris, have you ever thought of offering your expert services to the government's appeal team? It seems that they are a bit short of lawyers with experience of the finer points of constitutional law.

The thing with the referendum, with the parliamentary advice that I posted before, wouldn't all MPs know it was advisory already so it wouldn't have needed to be discussed?

Im thinking about it Mist

Woodlander, I am aware thats not how it works, however I think the judiciary arent. The judiciary are there to uphold the law. The point about the Miller case, is they have told the government what they must do to trigger A50. They have ruled that Parliamentary Sovereignty must be used. Considering that Parliament sovereignty is entirely decided by Parliament, and all our laws are SET by parliament, I think we're all agreed that Parliament were well aware of DCs promise to implement A50 the day after the referendum. Either he was entirely legally correct in making that pledge, or if the Miller judgment is to be upheld, he was indeed proposing to break the law to plegde issuing A50 on the day after.

Were the judiciary simply sitting back and chuckling on this point of constitutional law? Or were they in agreement that DC, and our government did indeed have the right to implement A50 the day after the referendum? Thats all Im saying. If Miller is to be upheld, then my former point is correct. They sat back and chuckled.

Why in light of the Act, in light therefore of the contradictory briefings, in light of David Camerons promise to implement Article 50 the day after the referendum, did no one pipe up and say "you legally cant?" Disagreeing slightly with what you say red, but the Attourney General? A whole raft of legal government advisors? Legal observers? And no one points out that the referendum DOESNT give authority?

You see I disagree with the sentiment that they didn't.

In the last few days before the referendum, the text of a50 started to be circulated in amongst all the other reasons for not voting to leave. It was on social media and it was in some of the press with the question raised about how it actually worked in practice and what our constitutional process was.

I know, because I remember seeing it, and discussing it briefly on FB. Though at the time I didn't fully comprehend all the implications. I got an inkling as I was more aware of the potential constitutional problems with NI and Scotland (which were definitely talked about but buried as being a bit of an inconvenience by Leave and Remain didn't push it anywhere near as hard as they should have done).

The trouble was it was lost in the noise of all the other things that were going on, people were already switched off to anything that was critical of leave and labelled such concerns as part of 'Project Fear' rather than a legitimate concern.

The agenda was being set mainly by Leave rather than Remain. Which was a failing of the Remain campaign throughout. It was not in Leave's interest to promote the idea that there might be problems with a50. So they didn't.

Which made for a situation where Remain voices (which were not Cameron) were drowned out and labelled as Project Fear and Leave didn't want you to know about the potential problem. Neither served the public sufficiently.

We now have a situation where the Brexit Cabinet has NO lawyer or legal expert in it. This 'oversight' is shocking given the number of issues that of a legal nature. It is setting us up for more similar situations where the legal implications come out after the political course has already been set. This is not in the public interest. It is not managing the situation.

It just proves that nothing has been learned from the referendum in this respect, and its all about the politics of the government rather than serving the people within the legal framework we have and just puts us on collision course for more examples of politics versus law with the courts being held responsible by the media because this fits their political agenda rather than the national interest as a whole.

For me, I do think a huge part of the leave vote was driven by a hatred of the elite, which in part is due to their downright incompetence and ignorance. And of course they have put faith in a new government who are showing spectacular signs of incompetence and ignorance which might even put Cameron to a distant second place, especially since they have not learned from him.

If ever we ever needed government accountability and transparency then now is that time. Yet this is exactly what we are not getting.

Once again voices that are saying that there is a problem here, are getting shouted down and drowned out by the right wing press as somehow being enemies of the people.

The whole dynamic of what is going on, is flawed and setting us up for a future which is not good. This is a view that more sensible elements of Leave are starting to recognise and accept as not being an attack on Brexit but an attack on the government management of Brexit.

The difference once again is important. It not about stopping Brexit - though the more it happens the more likely legal challenges to hamper Brexit are likely to be (and there are people who will use it as an opportunity to try and do that). Its not necessarily even about getting a soft brexit rather than a hard once. Its about making sure that Brexit is managed in the best possible way.

The dishonesty from government to do that is making the problem worse. The should be responsible and trying to heal divisions but are doing the opposite because it is in their political and self interest to do so. (Another criticism of leave voters).

There are limits to how opponents to the government can challenge this, because of the way they are being framed by the media and social media.

Cutting through this and saying there is a more neutral stand point is virtually impossible.

On a personal level I don't like and don't want Brexit. But by the same token I do realise there is a problem if we don't go down that route. But then again I realise that if we go down that route its fraught with a hell of a lot of problems which NEED to be pointed out for Brexit to work. I think Remain voters lurch from feeling to feeling, but most do recognise that Brexit will happen and they have to do their best to ensure its not a total car crash that it looks set to be, from the fundamental way in which it is being approached.

I agree Chris. Many, many sat back on a whole raft of issues from the outset and only when the result was - apparently - not the expected one, did the chorus begin.

**It was not in Leave's interest to promote the idea that there might be problems with a50. So they didn't.

Really?

Well of course Bored, lets be honest lots of things that weren't in the leave sides interest to talk about went unsaid.

I don't think the judiciary sat back and chuckled either, they aren't allowed to intervene in the first place so what do you expect them to do?

"Were the judiciary simply sitting back and chuckling on this point of constitutional law? Or were they in agreement that DC, and our government did indeed have the right to implement A50 the day after the referendum?"

The "judiciary" can't just wade in and issue a ruling. A claim has to be brought to court first. As I mentioned above, David Allen Green and other legal bloggers talked about this before the referendum. The most frustrating thing about this referendum is that although Leave won, it's all the fault of the Remainers for things now not going according to plan... This is the gist of every single discussion I've had with a Leave voter since the referendum. It's all our fault for not explaining the consequences clearly, not agreeing with the vote, pointing out the problems with Brexit, feeling downcast etc.