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politicalbetting.com » Blog Archive » The government should resign if the Courts prevent it from invoking Article 50 by itself

Why should an advisory referendum be binding? That is the question at the heart of the government’s determination to invoke Article 50 without going to parliament. It’s a difficult – but not impossible – case to argue, and one I will argue.

Read the full story here

edmundintokyo

In doing so, I’d argue that it hasn’t taken sufficient account of the change to the constitution that the innovation of referendums have brought about. More specifically, they haven’t sufficiently questioned what the actual nature of sovereignty is or why it lies where they say it does. Does it lie in parliament and only in parliament or does it actually lie with the people, as usually expressed through their representatives in parliament?

The first one. If David Herdson wanted to change this, he should have followed the appropriate constitutional procedure and written a pseudonymous letter to The Times.

edmundintokyo

On second thoughts now that The Times is paywalled maybe writing a pb thread header is the appropriate way to change the British constitution?

Jonathan

In short,,.

Cameron should have built in the consent mechanism into the Referendum bill. He didn't. Why? Because losing the referendum wasn't part of the plan.

So we are now unpicking this constitutional mess. It sits amongst a host of messes caused by one simple fact. The govt did not prepare at all for the Leave outcome.

Where do we go from here?

A general election. But one that answers the question; What does "Brexit means Brexit" mean?

Each party sets out their priorities. The new parliament can then trigger A50 with a clear mandate to negotiate a specific exit and set the path for Britain. Hard, Soft, Left, Right - Whatever.

The trick will be to somehow conduct a meaningful campaign/debate outside the toxic mess we find ourselves in today.

The big question, is this possible? Or are we doomed to talk about "traitors" and descend into yet further chaos.

edmundintokyo

Jonathan said:

In short,,.

Cameron should have built in the consent mechanism into the Referendum bill. He didn't. Why? Because losing the referendum wasn't part of the plan.

So we are now unpicking this constitutional mess. It sits amongst a host of messes caused by one simple fact. The govt did not prepare at all for the Leave outcome.

It's not particularly messy. The government get parliament to pass a bill. The government gets parliament to pass bills all the time. If parliament won't pass it they ask Jeremy Corbyn to join them in voting for a new election, which he does, and May wins and gets a new parliament.

It's true that passing the bill will require discussion and scrutiny and make it harder to conceal bad ideas and policy vacuums, but that's exactly what the constitution is supposed to encourage.

Moses_

"Why should an advisory referendum be binding? "

1) No one said this ref was "only advisory" during campaign
2) Parliament voted with large majority for the people to decide.(they did)
3) Cameron said he would trigger A50 if he lost

Other than that

Tickety boo

CarlottaVance

Laura Kuennsberg concludes:

The only way of making this headache go away could be a general election

http://www.bbc.co.uk/news/uk-politics-37861456

Meanwhile Ladbrokes odds on GE in 2017 now 7:4

I think May will 'keep calm & carry on' - if she fails in the Supreme Court introduce a one line bill and make clear any amendments will trigger a GE....as Prof Goodwin observes: It's like being forced to show your poker rival one of your cards. EU will be laughing their socks off. Bring on early GE?

SimonStClare

Morning all.

Cheers Mr Herdson, an interesting and thought provoking take on yesterday’s court decision.

Speaking personally, tabling an Article 50 Authorisation Bill now is much the safer option, although this will inevitably delay triggering A50 as it battles its way through to the supreme court and beyond, it is after all only delayed. What you appear to be proposing is a nuclear option, fraught with the danger we might never see the will of the majority implemented. Save the battle for constitutional rights of a sovereign people for another day.

RobD

Another good poll for Trump in NH, at a tie.

http://projects.fivethirtyeight.com/2016-election-forecast/updates

foxinsoxuk

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

peter_from_putney

edmundintokyo said:

In doing so, I’d argue that it hasn’t taken sufficient account of the change to the constitution that the innovation of referendums have brought about. More specifically, they haven’t sufficiently questioned what the actual nature of sovereignty is or why it lies where they say it does. Does it lie in parliament and only in parliament or does it actually lie with the people, as usually expressed through their representatives in parliament?

The first one. If David Herdson wanted to change this, he should have followed the appropriate constitutional procedure and written a pseudonymous letter to The Times.

Perhaps he already has!

Sean_F

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

The problem is that setting out endless preconditions and caveats, and requirements for government to spell out its negotiating position in advance of negotiations, makes it practically impossible for the government to invoke A50.

The government isn't just acting on a whim, in wanting to exercise A50. It held a referendum on the basis that A50 would be invoked, if Leave won. Parliament could have voted against holding a referendum, but it chose not to. Granted, Remain-supporting MP's never expected to lose, and had not thought through the implications of losing, but that can be no excuse for trying to frustrate the invocation of A50 now.

The case was brought to prevent Brexit, not to defend Parliamentary sovereignty in the abstract.

RobD

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

Bromptonaut

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

Sean_F

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

foxinsoxuk

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

It takes effect before then (see EDM 165).

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

An A50 bill would pass easily. The debate will strengthen rather than weaken the governments position as it will demonstrate that Parliament backs the position. It stops backsliding.

Bromptonaut

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

Sean_F

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

foxinsoxuk

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Yes. That is how the rule of law works.

It is possible to change bad laws, but a system that simply ignores inconvenient laws is open to tyranny.

Sean_F

foxinsoxuk said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Yes. That is how the rule of law works.

It is possible to change bad laws, but a system that simply ignores inconvenient laws is open to tyranny.

A law should be obeyed. But, it is entirely reasonable to strongly criticise a law, or a legal decision, which is what David is doing.

RobD

foxinsoxuk said:

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

It takes effect before then (see EDM 165).

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

An A50 bill would pass easily. The debate will strengthen rather than weaken the governments position as it will demonstrate that Parliament backs the position. It stops backsliding.

I think only some aspects, since the EU decided that national ratification wasn't required for those?

Bromptonaut

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

CarlottaVance

foxinsoxuk said:

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

I suspect that's why the Civil Service will have been strongly against it......

Apart from giving the suppliers of blood pressure medication a welcome fillip I doubt very much has changed.

Either the Supreme Court will look at this and go 'ooooh, too political' and back the government, or will back the lower court, in which case the government will bulldoze a one line bill through both houses. The Upper House will tamper with it at their mortal peril (and have made an unforgiving enemy in Mrs May once this local difficulty is out of the way) and we'll still trigger Article 50 by the end of March.

Its the Remain voters still in Denial I feel sorriest for - as John Cleese observed in Clockwise 'It's not the despair, Laura. I can take the despair. It's the hope I can't stand."

https://yougov.co.uk/news/2016/11/03/five-stages-grief-most-remain-voters-are-stuck-den/

Sean_F

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

JosiasJessop

An interesting article. Thanks, David.

I tend to think the court's decision is probably right from a legal perspective, but wrong from a moral perspective (if morality should have anything to do with the law).

As someone who thinks it is best if Brexit is sorted out as quickly as possible, I uttered a 'FFS!' in the car when I heard the news. The decision may uphold notional concepts of sovereignty; but it will also harm the country.

Oh, and the Mail's headline is a disgrace.

AlastairMeeks

The referendum was drafted so that the result would not be legally binding. The government conceded that in court, correctly the judges held (paragraph 105 of the judgment). So its effects can only be political not legal.

Once that is appreciated, the question is not whether the referendum decided the matter legally but who legally has the power to start the process of leaving the EU. The government was arguing in effect that it could do so without ever getting Parliament's approval or even consulting it.

This question is more important than Brexit. The executive needs to be subject to proper controls. In a sane world newspapers would applaud a court ruling upholding that.

As for a general election, Theresa May should have called one straight away. The courts may be doing her a favour, forcing her to do what in any case was in her own best interests. Though running on "who governs Britain?" is a risky strategy. It might well be that the electorate are interested in other questions as well, as Ted Heath found out.

Bromptonaut

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

Sean_F

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

It's monstrous arrogance to suggest that non-lawyers who are interested in politics should keep silent about legal decisions which have political implications.

JosiasJessop

AlastairMeeks said:

The referendum was drafted so that the result would not be legally binding. The government conceded that in court, correctly the judges held (paragraph 105 of the judgment). So its effects can only be political not legal.

Once that is appreciated, the question is not whether the referendum decided the matter legally but who legally has the power to start the process of leaving the EU. The government was arguing in effect that it could do so without ever getting Parliament's approval or even consulting it.

This question is more important than Brexit. The executive needs to be subject to proper controls. In a sane world newspapers would applaud a court ruling upholding that.

As for a general election, Theresa May should have called one straight away. The courts may be doing her a favour, forcing her to do what in any case was in her own best interests. Though running on "who governs Britain?" is a risky strategy. It might well be that the electorate are interested in other questions as well, as Ted Heath found out.

Indeed. (*) Congratulations on getting this right from the start, Alastair.

(*) I know this word is one of PB's verboten terms. I must use it frequently, as my two-year old has started using it instead of 'Okay' ...

tlg86

A fantastic piece, Mr Herdson. Irrespective of your view on Brexit, I'd like to think that most on here would agree that referendums should not be called by a government unless they are happy to implement either outcome. I believe that Cameron only agreed to this referendum because he thought he could kill Euroscepticism stone dead.

It's possibly the worst possible reason for voting to leave the EU, but what the referendum has done is to reveal just how far apart the people and the ruling classes are.

foxinsoxuk

CarlottaVance said:

foxinsoxuk said:

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

I suspect that's why the Civil Service will have been strongly against it......

Apart from giving the suppliers of blood pressure medication a welcome fillip I doubt very much has changed.

Either the Supreme Court will look at this and go 'ooooh, too political' and back the government, or will back the lower court, in which case the government will bulldoze a one line bill through both houses. The Upper House will tamper with it at their mortal peril (and have made an unforgiving enemy in Mrs May once this local difficulty is out of the way) and we'll still trigger Article 50 by the end of March.

Its the Remain voters still in Denial I feel sorriest for - as John Cleese observed in Clockwise 'It's not the despair, Laura. I can take the despair. It's the hope I can't stand."

https://yougov.co.uk/news/2016/11/03/five-stages-grief-most-remain-voters-are-stuck-den/

No, this Remainer is not in denial, just wanting our Parliament to be deciding the direction of Leave.

A one line bill is fine.

JosiasJessop

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

Judges can be wrong, and they could have been wrong when they summarily dismissed the arguments as complete tosh.

IANAL, but it seems that courts often have to weigh competing legislation and concepts when making a judgement. It is perfectly possible for them to get that balance wrong.

Bromptonaut

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

It's monstrous arrogance to suggest that non-lawyers who are interested in politics should keep silent about legal decisions which have political implications.

Who said he should keep silent? Read what I said.

Sean_F

JosiasJessop said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

Judges can be wrong, and they could have been wrong when they summarily dismissed the arguments as complete tosh.

IANAL, but it seems that courts often have to weigh competing legislation and concepts when making a judgement. It is perfectly possible for them to get that balance wrong.

For sure. For example, a client has just lost a landlord and tenant case. I think the judge got it wrong. It doesn't mean my client can disobey the judge, but nor am I required to think the judge got it right.

Bromptonaut

Any betting markets up yet for the 2019 European Parliament election?

UK seats, obviously.

CarlottaVance

foxinsoxuk said:

CarlottaVance said:

foxinsoxuk said:

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

I suspect that's why the Civil Service will have been strongly against it......

Apart from giving the suppliers of blood pressure medication a welcome fillip I doubt very much has changed.

Either the Supreme Court will look at this and go 'ooooh, too political' and back the government, or will back the lower court, in which case the government will bulldoze a one line bill through both houses. The Upper House will tamper with it at their mortal peril (and have made an unforgiving enemy in Mrs May once this local difficulty is out of the way) and we'll still trigger Article 50 by the end of March.

Its the Remain voters still in Denial I feel sorriest for - as John Cleese observed in Clockwise 'It's not the despair, Laura. I can take the despair. It's the hope I can't stand."

https://yougov.co.uk/news/2016/11/03/five-stages-grief-most-remain-voters-are-stuck-den/

No, this Remainer is not in denial, just wanting our Parliament to be deciding the direction of Leave.

A one line bill is fine.

LibDem Remainers are least likely to be in Denial (28%) compared to their fellow Con (34%) and Lab (32%) Remainers, although it is still the most frequent response ahead of Depression (25%)., while Con Remainers tend to have moved on (36% Acceptance).

foxinsoxuk

May has once again demonstrated her lack of political nous in how she has handled the issue, and now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

RobD

foxinsoxuk said:

May has once again demonstrated her lack of political nous in how she has handled the issue, and now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

May's blamed other people?

Black_Rook

FPT:

Scott_P said:

Black_Rook said:

This is what happens when politicians encourage, through their malign actions, a corrosive lack of trust in our national institutions. It doesn't just eat away at them, or their opponents. It starts to devour everything.

Like when they say "We have had enough of experts". When rationalism gives way to naked populism.

It doesn't just eat away at them, or their opponents. It starts to devour everything.

Saying "we think these experts are mistaken, the voters can decide who's in the right" is an entirely different thing from saying "we think the electorate is mistaken, so we are going to ignore them." In effect, the former invites the people to pass judgement on politicians' advice, and then to issue them with an instruction; the latter invites politicians to pass judgement on the people, and then do what they damned well please.

So, democracy or oligarchy - what's it to be?

CarlottaVance

RobD said:

foxinsoxuk said:

May has once again demonstrated her lack of political nous in how she has handled the issue, and now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

May's blamed other people?

Yes - link please......

JennyFreeman

What a brilliant article David Herdson.

Mortimer

A very good piece David. I still think there is a fair chance that the SC will overturn this.

Meanwhile the Remoaners are doing exactly what the establishment have done for decades - sneering at the little people and their views. This is an awful state of affairs brought about by people that are used to winning not being able to accept a loss.

rcs1000

Moses_ said:

"Why should an advisory referendum be binding? "

1) No one said this ref was "only advisory" during campaign
2) Parliament voted with large majority for the people to decide.(they did)
3) Cameron said he would trigger A50 if he lost

Other than that

Tickety boo

1 is patently false. The others are true.

foxinsoxuk

Black_Rook said:

FPT:

Scott_P said:

Black_Rook said:

This is what happens when politicians encourage, through their malign actions, a corrosive lack of trust in our national institutions. It doesn't just eat away at them, or their opponents. It starts to devour everything.

Like when they say "We have had enough of experts". When rationalism gives way to naked populism.

It doesn't just eat away at them, or their opponents. It starts to devour everything.

So, democracy or oligarchy - what's it to be?

The court overruled oligarchy in favour of democracy yesterday.

AlastairMeeks

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

AlastairMeeks

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

619

https://twitter.com/alexvtunzelmann/status/794314727337902080

619

Sean_F said:

JosiasJessop said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Oh I see. We can pick and choose which laws we follow depending on personal preference.

I'll start by ignoring the law that prevents me taking things from shops without paying. That OK with you, hun?

A law should be obeyed. There is no reason for a bad law or bad decision to be respected.

Nowhere does David suggest that the government should break the law.

But he has the monstrous arrogance to explain why the judgement is wrong, based on arguments the judges summarily dismissed as complete tosh.

Who's in denial now?

Judges can be wrong, and they could have been wrong when they summarily dismissed the arguments as complete tosh.

IANAL, but it seems that courts often have to weigh competing legislation and concepts when making a judgement. It is perfectly possible for them to get that balance wrong.

For sure. For example, a client has just lost a landlord and tenant case. I think the judge got it wrong. It doesn't mean my client can disobey the judge, but nor am I required to think the judge got it right.

will you be printing their names and calling them enemies of the people though?

AlastairMeeks

The Daily Mail is taking full advantage of the abolition in the last Parliament of the offence of scandalising the judiciary.

SquareRoot

Everyone knew that this referendum was decisive and there was no going back on the result. The judges know this too, but they apply the law as they see it. They may be wrong. Its highly likely the supreme court will overrule this decision. The nation has spoken

Brexit means Brexit.

(I voted Remain btw.)

Black_Rook

tlg86 said:

A fantastic piece, Mr Herdson. Irrespective of your view on Brexit, I'd like to think that most on here would agree that referendums should not be called by a government unless they are happy to implement either outcome. I believe that Cameron only agreed to this referendum because he thought he could kill Euroscepticism stone dead.

It's possibly the worst possible reason for voting to leave the EU, but what the referendum has done is to reveal just how far apart the people and the ruling classes are.

What it has also done is to expose, for everyone to see, just how thin and lukewarm the commitment of not all, but a significant fraction, of the ruling class is to the basic democratic concept that politicians hold a mandate from the people, rather than the people being unfree subjects of politicians.

In essence, the wealthy upper-middle class elite - which dominates politics and the media, through a position of entrenched and often hereditary privilege - has had everything its own way for as long as most of its members have been alive. The Brexit decision was the first time in decades that a major national poll pitted the majority of middle class opinion against a majority of working class opinion, AND that the working class side of the argument won. Finally, the privileged are having to do what the disadvantaged have been obliged to suffer for decades, and watching as something that they really value is taken away because of other people's political priorities.

The refuseniks amongst the ruling class are enraged and very bitter at being thwarted by the plebs, and are determined to reverse the result - hence the wilful denial of the legitimacy and binding nature of the vote itself, the complaints about its narrowness (as if they would give a damn about that if Remain had polled 52%,) and above all the abuse and denigration of Leave voters. Fundamentally, they want the verdict of the majority of those who voted in a fair contest set aside, and the will of the minority imposed regardless - because they think that all voters are equal but some are more equal than others. And democracy is only tolerable for so long as it keeps on delivering results that they feel comfortable with.

JennyFreeman

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Bitter twisted remoaner doesn't like erudite balanced piece SHOCK

AlastairMeeks

JennyFreeman said:

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Bitter twisted remoaner doesn't like erudite balanced piece SHOCK

I appreciate that you're uninterested in facts.

JennyFreeman

CarlottaVance said:

RobD said:

foxinsoxuk said:

May has once again demonstrated her lack of political nous in how she has handled the issue, and now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

May's blamed other people?

Yes - link please......

There isn't one. And I've heard TM called a lot of things but to my knowledge no-one has ever seriously described her as a nasty piece of work. Dearie me, perspective disappears all too easily.

JennyFreeman

Anyway, the British Press have laid into the three judges today with such force that I wouldn't want to be in their shoes.

foxinsoxuk

JennyFreeman said:

Anyway, the British Press have laid into the three judges today with such force that I wouldn't want to be in their shoes.

Yes, i was shocked to see one is a former olympic fencer:

https://politicalscrapbook.net/2016/11/vile-daily-mail-changes-headline-after-attacking-brexit-ruling-judge-for-being-gay/

Judges apply the law, and I am pleased that they are a restraint on an overpowered executive.

felix

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Your interpretation of why the case was brought is just a view. Any Democrat should respect the rule of law.Brexit will happen and it will happen through the will of Parliament as is proper.

ydoethur

What is baffling me about this judgement, and where I think it is likely to be overturned, is that invoking Article 50 does not in and of itself make any changes to the law. It is merely the start of negotiations that will lead to a change in the law. You can't have a binding vote on a negotiating position because otherwise you have nothing to negotiate.

Yes, there will need to be a vote on the final treaty as dozens, even hundreds of laws and plans be affected by that. But that's two years off at least, maybe more.

I wonder if the judges simply didn't quite understand the processes involved, in which case the Attorney General has clearly made a mess of things.

logical_song

UKIP continue downward trend, LibDems good results in Eastleigh and Gloucester

Britain Elects ‏@britainelects 7h7 hours ago
Fair Oak & Horton Heath (Eastleigh) result:
LDEM: 46.0% (+6.8)
CON: 30.7% (+3.7)
UKIP: 15.9% (-6.5)
LAB: 7.3% (-4.1)

Britain Elects ‏@britainelects 7h7 hours ago
Liberal Democrat HOLD Fair Oak & Horton Heath (Eastleigh).

Britain Elects ‏@britainelects 7h7 hours ago
Longlevens (Gloucester) result:
CON: 46.2% (+3.7)
LDEM: 36.9% (+23.7)
LAB: 9.7% (-8.2)
UKIP: 7.2% (-6.6)

Britain Elects ‏@britainelects 7h7 hours ago
Kingswood with Burgh Heath (Reigate) result:
CON: 73.3% (+6.6)
UKIP: 13.5% (-8.1)
LAB: 8.4% (-3.3)
GRN: 4.8% (+4.8)

Britain Elects ‏@britainelects 7h7 hours ago
Burnley Central East (Lancashire) result:
LAB: 68.9% (+10.7)
LDEM: 14.1% (-1.4)
UKIP: 12.7% (-6.7)
GRN: 4.3% (+4.3)

Britain Elects ‏@britainelects 8h8 hours ago
Rainham Central (Medway) result:
CON: 61.1% (+9.9)
UKIP: 16.4% (-5.2)
LAB: 13.5% (-2.9)
LDEM: 5.8% (+5.8)
GRN: 2.6% (-5.2)
EDEM: 0.6% (+0.6)

CarlottaVance

foxinsoxuk said:

May.... now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

Still waiting....I'm sure you wouldn't want the impression to form that the 'nasty piece of work' is the poster making unsubstantiated allegations....

Jobabob

Mortimer said:

A very good piece David. I still think there is a fair chance that the SC will overturn this.

Meanwhile the Remoaners are doing exactly what the establishment have done for decades - sneering at the little people and their views. This is an awful state of affairs brought about by people that are used to winning not being able to accept a loss.

Is it possible to 'sneer' at internationalist, open, liberal people? Or is it just close-minded nationalists that are victims of 'sneering'? Can open-minded, liberal people be little? Or is it just the white working class that are metaphorically small of stature?

JosiasJessop

JennyFreeman said:

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Bitter twisted remoaner doesn't like erudite balanced piece SHOCK

I'm unsure how you can say that from Alastair's comment.

Roger

The story here is the press not the judgement. The Mail article is as shocking as anything I've read. Demonising the judiciary is very dangerous particularly in the febrile atmosphere we're in at the moment.


As for the issue itself. The LEAVE campaign was based on the logo 'TAKE CONTROL'. If insisisting our own parliament shoud hae primacy over the Royal Perogative isn't 'TAKING CONTROL' then what is.

Bromptonaut

ydoethur said:

What is baffling me about this judgement, and where I think it is likely to be overturned, is that invoking Article 50 does not in and of itself make any changes to the law. It is merely the start of negotiations that will lead to a change in the law.

This was the agreed position of both parties. Try to keep up.

logical_song

SquareRoot said:

Everyone knew that this referendum was decisive and there was no going back on the result. The judges know this too, but they apply the law as they see it. They may be wrong. Its highly likely the supreme court will overrule this decision. The nation has spoken

Brexit means Brexit.

(I voted Remain btw.)

Decisive? It was close only 3.8% in it!

Monksfield

There's a lot of guff written on this subject.

We live, thankfully, in a parliamentary democracy. It is right and proper that Parliament should debate important issues that affect us all. The judges are quite right and proper to point this out.

I'm glad that our unwritten constitution works in a way that ensures Prime Minister and Government are regulated by law. Heaven help us if this was not the case.

I don't suppose for a moment tha the A50 vote will not be passed. But at least the Government can now be held to account for its objectives in leading us in that direction.

Casino_Royale

Excellent article David.

I agree with you. Election.

foxinsoxuk

CarlottaVance said:

foxinsoxuk said:

May.... now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

Still waiting....I'm sure you wouldn't want the impression to form that the 'nasty piece of work' is the poster making unsubstantiated allegations....

I am capable of forming my own opinion. Just watch as TM fails to own her decision on the courtcase, and to blame her lawyers.

david_herdson

foxinsoxuk said:

CarlottaVance said:

foxinsoxuk said:

RobD said:

foxinsoxuk said:

Time to have a proper debate in Parliament to set a frame of reference for Brexit, and for the Government to give an indication of its red lines. We suspect one of these is immigration and therefore Hard Brexit, but it needs to be heard in Parliament by our MP's.

The courts are right, and just applying the rule of law to an Executive that all too often abused the power of perogative. A recent example would be signing CETA without consulting parliament.

I think CETA still has to be ratified by Parliament.

Reining in the power of perogative so that Parliament is sovereign is a protection that the rule of law gives us all.

I suspect that's why the Civil Service will have been strongly against it......

Apart from giving the suppliers of blood pressure medication a welcome fillip I doubt very much has changed.

Either the Supreme Court will look at this and go 'ooooh, too political' and back the government, or will back the lower court, in which case the government will bulldoze a one line bill through both houses. The Upper House will tamper with it at their mortal peril (and have made an unforgiving enemy in Mrs May once this local difficulty is out of the way) and we'll still trigger Article 50 by the end of March.

Its the Remain voters still in Denial I feel sorriest for - as John Cleese observed in Clockwise 'It's not the despair, Laura. I can take the despair. It's the hope I can't stand."

https://yougov.co.uk/news/2016/11/03/five-stages-grief-most-remain-voters-are-stuck-den/

No, this Remainer is not in denial, just wanting our Parliament to be deciding the direction of Leave.

A one line bill is fine.

The ruling has nothing to do with parliament deciding the direction. It says that an Act is required simply to begin the process.

FWIW, I think that the government should both hold a debate on broad Brexit objectives prior to negotiations beginning, with a vote in the Commons to approve that stance, and a second vote to agree the final terms agreed with rEU. In both cases, the consequences of voting down the government should be clear.

Monksfield

JennyFreeman said:

Anyway, the British Press have laid into the three judges today with such force that I wouldn't want to be in their shoes.

It's high time someone laid into the British Press. They are increasingly whipping up unwarranted hysteria.

CD13

An excellent piece, Mr Herdson.

I've no legal training but what are judges for? To uphold and interpret the law. Who makes the law? The people through their representatives in Parliament.

Think of a pedant's distinction between less and fewer. If someone says less people, we still know what they mean. The Judges like to be those pedants.

Everyone knew this was a decisive vote on our European future, even the Judges. No one thought ... 'Oh well, it doesn't matter, because if we lose, we'll go over the small print with a fine tooth comb, ask someone to adjudicate who's on our side, and we'll wriggle out anyway.'

What message is being sent here? The pedants pretend they don't understand because they don't like the voters' views. They regards the little people as expendable to their own wants. They are 'experts' in their getting their own way and the will of the people can go ... itself.

I suspect some legal people get it. Some don't want to.

Blue_rog

For the last 40 years we've had primary legislation, impacting the lives of British people waved though parliament by statutory instruments, not requiring a vote. Now, for the first time, there's an outcry and a desperate rush to the courts to prevent something that the majority voted for.

I truly believe that this activity is meant to slow, amend, and finally prevent any meaningful exit from the EU and find it scandalous that some of our elected representatives are so arrogant think they have the right to frustrate the will of the people

CarlottaVance

foxinsoxuk said:

CarlottaVance said:

foxinsoxuk said:

May.... now is blaming her subordinates. I am glad that I don't have to work for her, she seems a nasty piece of work.

Still waiting....I'm sure you wouldn't want the impression to form that the 'nasty piece of work' is the poster making unsubstantiated allegations....

I am capable of forming my own opinion. Just watch as TM fails to own her decision on the courtcase, and to blame her lawyers.

So it is unsubstantiated. And we may form our own opinions on who really is the 'nasty piece of work'.

Jobabob

Hysteria is the word.

Given that Leave was a vague idea and not a policy package, it's right that Parliament should debate the terms of our departure. And that's really all there is to it. Re: the legal ins and outs, given the government itself didn't even try to argue that the referendum was legally binding, what other outcome was really likely?

IanB2

Whilst the Referendum is obviously of enormous political weight, if it is not binding on someone or something then it is clearly of no real significance in terms of the law. That is the point that the judges' legal training has enabled them to appreciate rather quicker than our mr herdson!

Alistair

The level of disgust I have for that Daily Mail front page is immeasurable.

ThreeQuidder

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

Then they were Idiotic and deserved to lose.

foxinsoxuk

Alistair said:

The level of disgust I have for that Daily Mail front page is immeasurable.

the original was worse

https://politicalscrapbook.net/2016/11/vile-daily-mail-changes-headline-after-attacking-brexit-ruling-judge-for-being-gay/

Innocent_Abroad

Thank you, David, for MPs have constituency Associations to placate on the Tory side, and local electorates to consider on the Labour one. I have always believed that Tories despise voters but it is truly heart-warming to have one of their activists confirm it

Fenster

I don't see what the fuss is about.

I think parliament should have the final say in rubber stamping Brexit. The MPs will vote to invoke Article 50, as will the Lords.... and Brexit will be hugely strengthened.

May was trying to circumvent parliament (the kind of move Blair would make). She was wrong strategically to do so because by obtaining a seal of approval in both houses she'll have a stronger mandate.

david_herdson

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Those are different roles from the ones that were voted on in 2011.

SouthamObserver

"The second reason why the government would rather not have to go the parliamentary route is that while they might receive assent to leave the EU, their small majority would leave them vulnerable to the motions being ambushed by amendments so as to give them a framework for negotiation far narrower than they’d like, and quite possibly contrary to what they’d like."

Precisely. This is exactly why there should be a Parliamentary vote on triggering Article 50. Brexit means Brexit, but it is not the executive that should get to decide, it is the people through their elected representatives. It would be an outrage if Parliament did not vote in favour of triggering Article 50 and it won't. But it would be equally outrageous if our elected representatives were not allowed to define what Brexit means.

Sean_F

felix said:

Sean_F said:

Bromptonaut said:

Sean_F said:

Bromptonaut said:

"It is somewhat presumptuous of someone who has no legal training and whose knowledge of constitutional processes and principles is merely that of an enthusiastic amateur (and, 20 years ago, an undergraduate), to tell the Lord Chief Justice and the Master of the Rolls that they’re wrong"

Yes. Suck it up, loser.

David voted Remain. But, he respects democracy.

But not the law, it seems.

If a law is bad, should it be respected?

Your interpretation of why the case was brought is just a view. Any Democrat should respect the rule of law.Brexit will happen and it will happen through the will of Parliament as is proper.

The Claimant did say the result of the Referendum made her physically sick.

No one here is suggesting the government should disobey the High Court.

AlastairMeeks

ThreeQuidder said:

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

Then they were Idiotic and deserved to lose.

The judges made it clear that they agreed with this concession by the government. Perhaps you need to reconsider your own view on this point?

Casino_Royale

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

The purpose of the referendum for the Government was to resolve a political problem by closing down the longstanding debate on the terms of our EU membership for a generation by winning by an overwhelming margin.

The purpose of the referendum for the people was to make a decision on whether the UK should stay or leave the European Union.

foxinsoxuk

ThreeQuidder said:

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

Then they were Idiotic and deserved to lose.

Blaming TM's underlings, not her ladyship? surely not?

partypoliticalorphan

A brilliant piece of writing. My only quibble is that surely the Supreme Court will see the strength of argument and a General Election will not be needed. I hope the Government lawyers read David's piece.

SouthamObserver

CD13 said:

An excellent piece, Mr Herdson.

I've no legal training but what are judges for? To uphold and interpret the law. Who makes the law? The people through their representatives in Parliament.

Think of a pedant's distinction between less and fewer. If someone says less people, we still know what they mean. The Judges like to be those pedants.

Everyone knew this was a decisive vote on our European future, even the Judges. No one thought ... 'Oh well, it doesn't matter, because if we lose, we'll go over the small print with a fine tooth comb, ask someone to adjudicate who's on our side, and we'll wriggle out anyway.'

What message is being sent here? The pedants pretend they don't understand because they don't like the voters' views. They regards the little people as expendable to their own wants. They are 'experts' in their getting their own way and the will of the people can go ... itself.

I suspect some legal people get it. Some don't want to.

Rubbish. The decision yesterday was not about preventing us leaving the EU, it was about ensuring that the executive cannot ride roughshod over the elected representatives of the people and remove rights from private citizens without Parliamentary consent.

Casino_Royale

AlastairMeeks said:

The Daily Mail is taking full advantage of the abolition in the last Parliament of the offence of scandalising the judiciary.

I didn't know that.

PlatoSaid

CD13 said:

An excellent piece, Mr Herdson.

I've no legal training but what are judges for? To uphold and interpret the law. Who makes the law? The people through their representatives in Parliament.

Think of a pedant's distinction between less and fewer. If someone says less people, we still know what they mean. The Judges like to be those pedants.

Everyone knew this was a decisive vote on our European future, even the Judges. No one thought ... 'Oh well, it doesn't matter, because if we lose, we'll go over the small print with a fine tooth comb, ask someone to adjudicate who's on our side, and we'll wriggle out anyway.'

What message is being sent here? The pedants pretend they don't understand because they don't like the voters' views. They regards the little people as expendable to their own wants. They are 'experts' in their getting their own way and the will of the people can go ... itself.

I suspect some legal people get it. Some don't want to.

Quite. It reminds of a book I read decades ago called Outrage - a father murders his daughter's rapist who got off on a technicality. The jury returns a Not Guilty verdict despite all the evidence against him. There's a point where the Law becomes an ass in the eyes of The People. We're there now.

ThreeQuidder

logical_song said:

SquareRoot said:

Everyone knew that this referendum was decisive and there was no going back on the result. The judges know this too, but they apply the law as they see it. They may be wrong. Its highly likely the supreme court will overrule this decision. The nation has spoken

Brexit means Brexit.

(I voted Remain btw.)

Decisive? It was close only 3.8% in it!

Close, but decisive.

david_herdson

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

Yes it did. It's in the leaflet it sent in February, where it says something like "we will implement your decision." No doubt those with more technical skill than me can embed the preciese quote in a comment.

Sean_F

Monksfield said:

There's a lot of guff written on this subject.

We live, thankfully, in a parliamentary democracy. It is right and proper that Parliament should debate important issues that affect us all. The judges are quite right and proper to point this out.

I'm glad that our unwritten constitution works in a way that ensures Prime Minister and Government are regulated by law. Heaven help us if this was not the case.

I don't suppose for a moment tha the A50 vote will not be passed. But at least the Government can now be held to account for its objectives in leading us in that direction.

I think the intention is not to vote down A50, but to hedge it with so many qualifications that it becomes practically impossible for the government to invoke it. So, I agree with the general view that an election is needed.

SouthamObserver

Casino_Royale said:

Excellent article David.

I agree with you. Election.

Yep - completely agree. Scrutiny.

619

PlatoSaid said:

CD13 said:

An excellent piece, Mr Herdson.

I've no legal training but what are judges for? To uphold and interpret the law. Who makes the law? The people through their representatives in Parliament.

Think of a pedant's distinction between less and fewer. If someone says less people, we still know what they mean. The Judges like to be those pedants.

Everyone knew this was a decisive vote on our European future, even the Judges. No one thought ... 'Oh well, it doesn't matter, because if we lose, we'll go over the small print with a fine tooth comb, ask someone to adjudicate who's on our side, and we'll wriggle out anyway.'

What message is being sent here? The pedants pretend they don't understand because they don't like the voters' views. They regards the little people as expendable to their own wants. They are 'experts' in their getting their own way and the will of the people can go ... itself.

I suspect some legal people get it. Some don't want to.

Quite. It reminds of a book I read decades ago called Outrage - a father murders his daughter's rapist who got off on a technicality. The jury returns a Not Guilty verdict despite all the evidence against him. There's a point where the Law becomes an ass in the eyes of The People. We're there now.

I had no idea you has such an expertise in constitutional law.

Maybe the LEAVE people should calm down. It will delay ART 50 for a few months so the Govt can sort more of their shit out. The papers over-reaction is of real interest. Why do they want it done asap without consideration?

AlastairMeeks

david_herdson said:

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Those are different roles from the ones that were voted on in 2011.

I'm sure that will be of great comfort to all those who expressed their view on the first proposal and who had no opportunity to express their view on the tweaks to the proposal that the government imposed on them.

JosiasJessop

david_herdson said:

AlastairMeeks said:

On one point of detail, David Herdson is simply wrong to say that all past referendums in the UK have been respected. If that were true, we wouldn't be getting directly elected mayors of Birmingham and Manchester.

Those are different roles from the ones that were voted on in 2011.

That sounds a little like saying the Lisbon Treaty is different from the EU constitution.

Thanks for the article, BTW.

SouthamObserver

PlatoSaid said:

CD13 said:

An excellent piece, Mr Herdson.

I've no legal training but what are judges for? To uphold and interpret the law. Who makes the law? The people through their representatives in Parliament.

Think of a pedant's distinction between less and fewer. If someone says less people, we still know what they mean. The Judges like to be those pedants.

Everyone knew this was a decisive vote on our European future, even the Judges. No one thought ... 'Oh well, it doesn't matter, because if we lose, we'll go over the small print with a fine tooth comb, ask someone to adjudicate who's on our side, and we'll wriggle out anyway.'

What message is being sent here? The pedants pretend they don't understand because they don't like the voters' views. They regards the little people as expendable to their own wants. They are 'experts' in their getting their own way and the will of the people can go ... itself.

I suspect some legal people get it. Some don't want to.

Quite. It reminds of a book I read decades ago called Outrage - a father murders his daughter's rapist who got off on a technicality. The jury returns a Not Guilty verdict despite all the evidence against him. There's a point where the Law becomes an ass in the eyes of The People. We're there now.

Thus, the father was not guilty. The law worked.

CarlottaVance

Fenster said:

I don't see what the fuss is about.

I think parliament should have the final say in rubber stamping Brexit. The MPs will vote to invoke Article 50, as will the Lords.... and Brexit will be hugely strengthened.

May was trying to circumvent parliament (the kind of move Blair would make). She was wrong strategically to do so because by obtaining a seal of approval in both houses she'll have a stronger mandate.

I agree - all that's happened - no doubt to the Civil Service intense frustration - is that Royal Prerogative has been eroded further - not in itself a 'bad thing'.

We're still leaving the EU and Article 50 will still be triggered in March.....and Remainers in denial have been thrown a worthless lifeline.....

ThreeQuidder

AlastairMeeks said:

ThreeQuidder said:

AlastairMeeks said:

On the advisory nature of the referendum, again, the government didn't even try to argue that it was a source of authority for the decision to trigger. I suspect this will need to be repeated throughout the thread at regular intervals.

Then they were Idiotic and deserved to lose.

The judges made it clear that they agreed with this concession by the government. Perhaps you need to reconsider your own view on this point?

Given that the judges couldn't tell the difference between UK law and international law, I'm not sure why I should respect their opinion.

IanB2

ydoethur said:

What is baffling me about this judgement, and where I think it is likely to be overturned, is that invoking Article 50 does not in and of itself make any changes to the law. It is merely the start of negotiations that will lead to a change in the law. You can't have a binding vote on a negotiating position because otherwise you have nothing to negotiate.

Yes, there will need to be a vote on the final treaty as dozens, even hundreds of laws and plans be affected by that. But that's two years off at least, maybe more.

I wonder if the judges simply didn't quite understand the processes involved, in which case the Attorney General has clearly made a mess of things.

I think your argument might stack up if the article were just some sort of notification process but without the forced exit after two years (requiring a unanimous vote of 27 countries to extend). But as the article is drafted it is in effect a decision to leave two years after it is triggered.