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Samizdata quote of the day

Throughout our time in the EEC/EU Ministers have regularly used prerogative powers to bind us into EU decisions, regulations and judgements which Parliament has been unable to vote on or prevent. Many of these have adversely affected our right to be a sovereign and free people. It was curious that the High Court of England thought that was acceptable yet using the same prerogative powers to bring the right to self-government back was not. I hope the Judges understand three basic points. The first is the referendum was the decision. Government made that clear in Parliament and in a leaflet to all voting households. The second is Parliament can debate Brexit any time it likes, and has done so extensively already. The third is Parliament needs to make up its own mind on what it wants to vote on, and is free to do so. There can be plenty of votes on the Repeal Bill.

John Redwood

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24 comments to Samizdata quote of the day

  • David Roberts

    Perhaps prerogative powers do not apply.

    The UK government was instructed by Parliament through the European Communities Act 1972 (as amended) to implement the Treaty of the European Union. Article 50 is part of this treaty.

    The UK government is only allowed to not invoke Article 50 when and if the 1972 Act is revoked.
    What are all these judges doing? Hat tip Richard North.

  • staghounds

    As I’ve been saying since before the votes were counted, there won’t be any Brexit. And much as I’d like to see the EU kicked to the kerb, there’s plenty of legal basis for the argument that a referendum has no legal effect under the British Constitution. An Act of Parliament joined Britain to the EU, and it’s perfectly reasonable to hold that it would take one to leave.

    And in any case, no one who has the power to actually file the Article 50 wants to, and no one who wants to has the power to file one. Certainly Theresa “Any Year Now” May isn’t making any effort.

    Parliamentary and Government sovreignty rule you, not the expressed will of the people. Sorry.

  • bobby b

    “Parliamentary and Government sovreignty rule you, not the expressed will of the people. Sorry.”

    Would it be more accurate to say that the expressed will of the people does in fact rule the country, but that that will is only measured and determined through Parliamentary elections?

    Seems to me there’s a difference between saying that the people are impotent and powerless, versus that the people got gamed by leaders who thought they would get away with letting people think they were taking part in a meaningful process but who didn’t expect that it would backfire on them when the vote went awry.

  • PersonFromPorlock

    bobby b
    December 6, 2016 at 4:56 pm

    Would it be more accurate to say that the expressed will of the people does in fact rule the country, but that that will is only measured and determined through Parliamentary elections?

    Hard to explain holding a referendum, then.

  • PaulH

    It’s easy to explain holding a referendum. It was a wild promise made to get Cameron out of a sticky spot. I would hope that if the referendum had been called for a good reason – e.g. Our place in the EU is in question, and only the people en masse can decide what it is the country should be – everyone would have taken both the vote and the result more seriously.

  • Mr Ecks

    You may not have taken the vote seriously but I and millions of others did.

    And–despite Staghounds whining– nothing has happened to stop Brexit. If the lawdogs prove false and treacherous then the HoC scum need to be whipped into line.

  • Gareth

    staghounds said:

    An Act of Parliament joined Britain to the EU, and it’s perfectly reasonable to hold that it would take one to leave.

    The act of Parliament came at the end of negotiations not before. Notifying Brussels as per Article 50 *isn’t* leaving. The rights of British EU citizens will remain unchanged until the negotiations are finished and Parliament approves it.

  • Lee Moore

    there’s plenty of legal basis for the argument that a referendum has no legal effect under the British Constitution

    True, but false. The question at issue is whether or not Ministers have the power under the Royal Prerogative to give Article 50 notice. It is not in dispute that Ministers have hitherto had undisputed prerogative power to enter into treaties and to withdraw from them, unless forbidden by statute. Since there is no express prohibition in statute, you’d have thought that was the end of the matter. But no. The High Court concluded that such a prohibition should be inferred from the ECA 1972, even though the ECA 1972 doesn’t have anything explicit to say on the subject. So, the question of what may be inferred from absent words is very much in play.

    So, if the ECA 1972 can be inferred to have removed the Royal Prerogative, without saying so, it’s not obvious why the referendum Bill shouldn’t be inferred to have restored it. It’s possible to believe in both inferences, or neither. But to believe in one, but not the other, strains the credibility of observers. For those who believe the courts should be careful about straining to read words that aren’t there , I’m sympathetic. But if you’re the sort of judge who likes to strain in this way, you ought to be able to see invisible words in the referendum Bill just as well as you can see them in the ECA.

  • Paul Marks

    There has already been an Act of Parliament – the Act of Parliament establishing the Referendum. The Parliamentary debates are quite clear – the Referendum is mandatory (not advisory).

    Therefore as the people have voted to leave the European Union, E.U. law must not be valid inside the United Kingdom. If people wish to mess about with “Article 50” (and actually there is no reason to do so – as the E.U. will not invade if we just declare UDI, and as they sell us far more than we sell them….. trade war is not on the cards either) then “Article 50” should have been invoked the day the result of the Referendum was known.

    It is hard to escape the conclusion that the months of delay in even “invoking Article 50” was a deliberate effort to give the supporters of the European Union time to think of counter attacks – such as legal challenges.

  • David

    “Parliamentary and Government sovereignty rule you, not the expressed will of the people. Sorry.”

    That sort of attitude led to a civil war in England in 1664 unless my history teacher was wrong.

    Not saying it would happen again but ordinary people are pretty pissed off with the [so called] elites deciding what is good for them.

  • Derek Buxton

    Yes David, I fully agree. Parliament, with the full knowledge of what the EU intended, still gave away our Country and our liberties. As it is said that we have Parliament which represents the People then they should do just that, pitting them against the executive. And when did they last do that? But of course, all MPs are well aware of the goodies available to those who do as they are told by their leaders and dreadful civil servants. Turning democracy on its head. Parliament for once in its long and sad life gave us a chance to right a wrong. As they did this, the result was ours and should be respected.

  • Johnathan Pearce

    Alex Deane, over at CityAM, pours a cold bucket of reality over the heads of those Remaniacs and gloomy Brexiters claiming/fearing that Brexit will not happen:

    Try to remember the basics. A party had a manifesto pledge to hold a binding referendum on our membership of the EU. That party won a majority in a general election. Both Houses voted through an Act to hold the promised referendum. The referendum took place. We voted to leave the EU. After all of the debate (in which the big guns were for Remain), we decided as a nation that our concerns about the Union couldn’t be remedied or ameliorated by change within it.

    So our government will now get us out of the EU on the best available terms. That’s democracy working. Life goes on. The blathering classes desperately trying for some reason to portray discussions about leaving a relatively recent protectionist customs union between neighbouring states as the sky falling in should try to hang on to these basic facts.

  • Johnathan Pearce

    Paul is correct; what we are seeing now from the EU Remainers – or some of them – amounts to a sort of legal version of the Ardennes counter-offensive in 1944. Hopefully, Gen. Patton’s Third Army will do its best to cut them off as winter sets in.

  • Laird

    Perhaps I’m misunderstanding British law (entirely likely, even probable), but if the High Court is correct (and I think it is) that the Government cannot, by exercise of the royal prerogative, overturn statutory law, isn’t it nonetheless entirely proper for it to withdraw from the EU treaty but the implementing laws still remain in effect? In other words, to the extent you have domesticated EU rules they would still apply until repealed by positive law, but the nation would nonetheless cease to be a member of the EU. And of course any such rules which have not been domesticated by statute (regulatory mandates, etc.) would cease to be effective immediately on the effective date of withdrawal. Why is this a problem?

  • bobby b

    Laird, that’s how I read it, too, with the addition that, based on the authority inherent in the referendum, England can now give the proper notice and wait for the two-year (IIRC) period and then a complete withdrawal would be automatic, but it would take Parliament to negotiate and execute any form of separation agreement.

    But then I’m a furriner who doesn’t even speak proper English, so YMMV.

  • staghounds

    But no one who can file an Article 50 shows any intent to actually do it!!

    Unless and until an Article 50 that the EU accepts* is filed, your referendum was exactly what Bobby B. says- a game. I submit that pretending, like Alex Deane does, that your Masters’ “government will now get us out of the EU on the best available terms” is a fantasy which plays into the hands of the remainers.

    The cry should be “Article 50 Today”, and it would be in Parliament if anyone there actually wanted out. If Parliament respected its own Referendum, it would have drafted and passed a bill to implement its result six months ago.

    Once again, the spouse who wants the divorce has told the spouse that doesn’t to file the papers.

    There won’t be any Brexit. My wager offer still stands for those who dream otherwise.

    *The EU Constitutional Article 50 procedure requires that the seceding State have made its secession decision through its own Constitutional process. There’s nothing that tells us who decides whether the secession decision was domestically constitutional, but I suspect that an EU Court will decide that it gets to, no matter what a British Court says..

  • Lee Moore

    IANAL but I think you’re right on EU laws that have been incorporated into UK domestic law by UK domestic legislation. I don’t think anyone disputes that. The question is more over EU laws that are effective in UK domestic law without any specific UK domestic law having been passed to implement them. So say the EU Treaty says “The EU may promulgate laws on water pollution using procedure A, and the EU may promulgate laws on the the quality of beer using procedure B.” When you look at procedure A it says “and these laws become immediately effective EU wide as soon as they are adopted by an EU Ministers’ vote.” But when you look at procedure B it says “once EU Ministers have voted, no EU wide laws are thereby created immediately, but each Member is obliged to pass its own domestic laws to give effect to type B laws.” So when you search the UK domestic statute book you’ll find lots of laws implementing type B EU laws, but no laws implementing type A UK laws. So how do type A laws come into force in the UK ? Because the EU Treaty says so, and because the UK has passed a law in 1972 which says, broadly “EU law is supreme over UK law in matters covered by the EU treaty.”

    So the argument is that if the UK leaves the EU and so is no longer subject to the treaty, these type A laws will disappear in a puff of smoke. And so ministers mustn’t pull the trigger on beginning to leave the EU, lest these type A laws are lost without Parliament’s express consent. But the type B laws will chug on undisturbed, until specifically repealed.

  • staghounds

    Spouse who doesn’t.

  • Cal Ford

    Staghounds is giving pessimists a bad name.

  • staghounds

    What makes you, or anyone, believe the politicians will abide by the referendum?

    I mean, in real life, if you told your yard man to cut the hedges in June, and he said he wouldn’t do it and quit three months later, and you hired another one who told you she’d get around to it in six months, would you expect to see the hedges cut?

    Meanwhile of course she’s busily doing a lot of things you haven’t asked her to do- putting up microphones around the house and things like that.

    I seriously want to know whence comes the faith that they will take the country out of the EU.

  • Cal Ford

    Did you see the result of the vote tonight?

    Yes, I know you can just say ‘It doesn’t mean anything’, but that’s why it’s pointless arguing with you, you just dismiss any evidence that goes against you with a handwave.

    You really think leaving the EU is like cutting the hedge?

  • Paul Marks

    I hope J.P. is correct.

    As for Laird’s point.

    Yes the 1972 European Communities Act may need to repealed. I do not think that has ever been denied.

    “Invoking Article 50” does not, by itself, repeal the Act of Parliament – but the Act of Parliament can be repealed at the end of the process.

  • staghounds

    I just saw that non binding vote about what the Government should do, yes, and it gives me some hope. Not much though, a binding exit bill could be drafted and passed if Parliament wanted to. And of course the Lords is still there.

    And no, I don’t think leaving the EU is like cutting the hedge. I think telling your subordinate what to do and him not doing it is the same whether it’s a yard man or a prime minister.

    If he won’t do what you tell him to do, you aren’t his boss.

  • Mr Ed

    I share a lot of staghounds’ pessimism, and my concern is that the Supreme Court (why not call if ‘Final Court’?) will come up with an arcane judgment indicating that not only must an Act be passed, but it will hint (but not determine, as that is not an issue before it) that the devolved assemblies of the UK (Wales, N. Ireland and Scotland) should also consent to the triggering of Article 50 as the ‘Devolution’ statutes have particular significance and cannot be over-ruled by a ‘simple’ Act of Parliament. And the whole thing gets dragged out to 2020 and the General Election victor sweeps away the whole issue.

    But of course, the USSR collapsed much more rapidly than I ever expected, and actually beat us to it.