I think the government should get started on the Parliamentary route in case the appeal is lost. If they start now there is a decent shot at making June 2017 for the trigger date, if they start in December then it's unlikely.
They should never have even gotten into this position. Irrespective of whether it was necessary or not, the Article 50 Enabling Bill should have been tabled and passed immediately following the referendum result.
Agreed - and your consistency in arguing this ought to be recognised and commended.
IANAL, but the reasoning of the judgement does look very strange to me:
In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect
I don't think that is right. For a start, triggering Article 50 won't change domestic law or repeal the 1972 Act. It will make it obsolete, and parliament will have to clean up the legal position afterwards, but that is a different point. And secondly, the Lisbon Treaty - which by m'luds reasoning was implicitly authorised by parliament in 1972 - include the very provision we are talking about. So how can triggering it not already be authorised by parliament?
I think its that by leaving the EU, UK citizens loose access to the CJEU - 93.(7) of the full ruling, and that is a loss of domestic rights that does happen due to Article 50 triggering..
The judgement mentions other rights you lose, like the right to stand for election as an MEP...
No reason why the government can't run the appeal aginst the Article 50 court ruling whilst also having a vote in parliament.
Should the House of Lords vote against triggering Article 50 that would be their death knell.
Totally. Pitchfork time.
I'm hardly a constitutional knee-jerker and I'm a Remoaner but I would back HoL abolition if it blocked Brexit following a Commons vote.
People are getting very worked up about the HoL. If it got to it, we may very well end up with a new Convention, in which the HoL does not disagree with the results of a national referendum.
I put the odds of an HoL voting down a Commons-approved Article 50 trigger and about 5, 10%.
No reason why the government can't run the appeal aginst the Article 50 court ruling whilst also having a vote in parliament.
Should the House of Lords vote against triggering Article 50 that would be their death knell.
Totally. Pitchfork time.
I'm hardly a constitutional knee-jerker and I'm a Remoaner but I would back HoL abolition if it blocked Brexit following a Commons vote.
People are getting very worked up about the HoL. If it got to it, we may very well end up with a new Convention, in which the HoL does not disagree with the results of a national referendum.
I put the odds of an HoL voting down a Commons-approved Article 50 trigger and about 5, 10%.
But the odds of their tacking on various amendments in an attempt to delay ?
Should the House of Lords vote against triggering Article 50 that would be their death knell.
At this point I really don't think HoL would care. These people would literally sign their political death warrants for the EU.
The Lib Dems would. If anything needs to get approved by the HoL then it will get blocked. It would be better to plan for a GE in early December and get a new mandate and then start the year afresh with a cleaned out HoC.
This is the sort of phony war crap I find most wearying at present - whether parliament triggers A50 or the governemnt does, the referendum is implemented. Suggesting the government does not have the power on its own to trigger is beloved by those wanting not to leave, but doesn't actually prevent us from leaving, so in its response the government is suggesting it thinks parliament will not vote to leave, and why would that be? Only the lords is a potential obstacle, and I'm not convinced they'd be up for that fight either.
Jumping through procedural and legal hoops can be tiresome, particularly when there is endorsement of the final outcome regardless. But tiresome is all it is, it isn't an affront to go through the process, and it is not actually a problem here unless for some reason you think parliament will succeed in preventing implementing the referendum result, and that shows lack of confidence more than anything else. Even an appeal won by the government, which is quite possible, would not make asking the question unreasonable, particularly since we were delaying triggering until March anyway.
Being hounded at every step by those who want to stop you from carrying out something even though you won an election is irritating, but being forced to defend your legal position and justify your procedures to ensure they are correct helps everyone in the end. There can be no complaints parliament was bypassed, that the legal process was not correct. It will all be settled.
The advantage of a vote on Article 50 triggering seems to be not that it stops us leaving the EU but that it provides democratic accountability over what sort of Brexit we have, eg. Brexit lite, EEA no customs union, customs union no Single Market, hard Brexit etc.
What type of Brexit we have shouldn't be left to a small subset of Tory MPs.
IANAL, but the reasoning of the judgement does look very strange to me:
In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect
I don't think that is right. For a start, triggering Article 50 won't change domestic law or repeal the 1972 Act. It will make it obsolete, and parliament will have to clean up the legal position afterwards, but that is a different point. And secondly, the Lisbon Treaty - which by m'luds reasoning was implicitly authorised by parliament in 1972 - include the very provision we are talking about. So how can triggering it not already be authorised by parliament?
I think its that by leaving the EU, UK citizens loose access to the CJEU - 93.(7) of the full ruling, and that is a loss of domestic rights that does happen due to Article 50 triggering..
The judgement mentions other rights you lose, like the right to stand for election as an MEP...
Quite, and if we go for soft-Brexit, the right to representation in the European Parliament seems pretty fundamental.
Johnson + Stein on 9%? There's going to be unwind there come Election Day.
Indeed. They don't give the H2H numbers, although they say the 3 point gap is the same. I prefer that figure as it more accurately tracks the squeeze on third party candidates as polling day looms.
High Court ruling likely to be germane to the forthcoming appeal on the Northern Ireland Article 50 decision.
Brexit is heading into the long grass.
This period may look like an extended interregnum before the return of Osborne and the abandonment of Brexit.
Yes, that's a plausible scenario. I can see the legal quagmire becoming so overwhelming that the Article 50 lark stalls and collapses in a heap. Her government in paralysis, May will have to resign in ignominy, which could certainly pave the way for the return of Osborne as a figure of national unity. EU membership will then be renegotiated, probably with Dave's Deal dusted down and used as a template.
That would send an example to other countries that you can vote to leave to stay on a better deal. I think the EU just wants us out quickly at this point, not another 20 years of unhappy marriage with us.
I agree. Reading the foreign press you get the impression they want this over.
Whatever happens it is crystal clear that the decades long fudge of the UK generally convincing itself "Europe" is about economics and trade with a few political twiddly bits, whilst the Continentals believe "Europe" is about politics with trade etc tacked on is over.
I think many on the Continent have had the depth and breadth of British discontent laid open and bare for all to see clearly for the first time (immigration being the visible touchstone). It's shocked them, and cannot see any way their political project can move forwards meaningfully with the Brits dragging behind. They are right. The fault line between politics and economics papered over since 1973 (or even before), is really an ideological San Andreas fault, not a crack in the plaster you can patch up with a tube of Polyfiller. Real Europhiles are just too few in number here. It's a respectable view, and they are free to keep making it of course, but without whole hearted consent (a Heathian phrase I believe), disaster awaits us all, including Continental Europe, if we were crowbarred by the back door into the world of June 22nd. It's gone. On the Continent they know that. They've accepted it.
This will make leaving the EU much more likely as the Country will act with fury if there is any attempt to prevent the will of the people.
It will teach the Tories that in a parliamentary democracy parliament can't be ignored. First round to those who don't believe in gerrymandering our democracy in order to get elected.
Not guaranteed to get through the Commons, but very unlikely to pass the Lords. Which means a year of delay with the Parliament Act or a fresh election (after repealing the nonsensical Fixed Term Act).
The Lords would be unlikely to agree to repeal of the FTA!
Mr. kle4, minimum six weeks for an election campaign. How long, before that, to repeal the Fixed Term Act?
Fixed Term Parliament Act made the timetable very clear - 17 working days between proroguing of Parliament and polling day.
That is incorrect! The period is now 25 days-ie 5 weeks from Dissolution. That assumes that 2/3 of MPs have agreed. If polls remain close to where they have been recently I cannot see Corbyn bowing to her wishes - despite earlier statements.
I'm perfectly happy for Parliament to have a veto but we have to remember how toxic all this could be. Yu have 56 SNP MPs on one side having won 4.7% of the vote whilst Ukip on the other side have 1 MP with 12.7% of the vote. That's before you get onto the bizarre situation of the Lords - nearly 1000 of them, totally unaccountable to the public.
All very true but the Tories, including the Brexiteers, still support FPTP and blocked Lords reform in last parliament, so can't complain if that is what thwarts them now.
I'm not so worried about the Tories but about English nationalism. David Cameron described the Scottish referendum vote as decisive. The percentages were virtually the same as those in England in the referendum. If Ukip want to they can make hay.
As much as a dislike the royal prerogative I wonder how much it matters. If parliament doesn't like the government they should get rid of it. How hard would a no confidence motion be? Even under the FTPA we'd still get an election within a couple of weeks.
But under that scenario some constitutional experts suggest we could end up with Corbyn as caretaker PM for the election period!
Comments
Will vote against A50
Reading the judgment (thanks for the link, Verulamius),
https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf
I'm not at all sure that there is any likelihood of its being overturned on appeal. I'm not a lawyer, but the arguments are pretty persuasive - and deal with many of the objections being raised here.
I put the odds of an HoL voting down a Commons-approved Article 50 trigger and about 5, 10%.
ABC/WashPost tracking poll has Hillary back in lead - Clinton 47%, Trump 45%
https://twitter.com/MattChorley/status/794131309308346370
Clinton 45 .. Trump 42
http://www.cbsnews.com/news/five-days-to-go-the-presidential-race-tightens-cbsnyt-poll/
'Why do you persist in thinking that Brexit is a fundamental national interest that should be protected from the slings and arrows of due process?'
Because the democratic decision of 17 million voters has precedence over the votes of 650 MP's ?
Jumping through procedural and legal hoops can be tiresome, particularly when there is endorsement of the final outcome regardless. But tiresome is all it is, it isn't an affront to go through the process, and it is not actually a problem here unless for some reason you think parliament will succeed in preventing implementing the referendum result, and that shows lack of confidence more than anything else. Even an appeal won by the government, which is quite possible, would not make asking the question unreasonable, particularly since we were delaying triggering until March anyway.
Being hounded at every step by those who want to stop you from carrying out something even though you won an election is irritating, but being forced to defend your legal position and justify your procedures to ensure they are correct helps everyone in the end. There can be no complaints parliament was bypassed, that the legal process was not correct. It will all be settled.
What type of Brexit we have shouldn't be left to a small subset of Tory MPs.
What would happen if the elite block triggering Article 50?
Clinton 47 .. Trump 45
http://abcnews.go.com/Politics/beneath-close-election-contest-lie-deep-rifts-groups/story?id=43253122
'Not in our system. Sorry! Try another country, perhaps one with less safeguards against the tyranny of the majority.'
Egypt,North Korea ?
'Can you be more elite than being in the House of Lords?'
The House of Commons ignoring a democratic vote ?
NEW THREAD
Labour is finished
Whatever happens it is crystal clear that the decades long fudge of the UK generally convincing itself "Europe" is about economics and trade with a few political twiddly bits, whilst the Continentals believe "Europe" is about politics with trade etc tacked on is over.
I think many on the Continent have had the depth and breadth of British discontent laid open and bare for all to see clearly for the first time (immigration being the visible touchstone). It's shocked them, and cannot see any way their political project can move forwards meaningfully with the Brits dragging behind. They are right. The fault line between politics and economics papered over since 1973 (or even before), is really an ideological San Andreas fault, not a crack in the plaster you can patch up with a tube of Polyfiller. Real Europhiles are just too few in number here. It's a respectable view, and they are free to keep making it of course, but without whole hearted consent (a Heathian phrase I believe), disaster awaits us all, including Continental Europe, if we were crowbarred by the back door into the world of June 22nd. It's gone. On the Continent they know that. They've accepted it.