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.
In the court case. Paragraph 105 refers. You're criticising the judges for not deciding the case on a basis that the government thought so hopeless that it didn't try to argue.
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?
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?
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.
Were the government acting on a whim, that would be a fair point. It isn't so acting.
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.
Tbe right of Juries to fail to convict in the face of all evidence is a well established one. It goes back to 1670 and the case of Penn and Mead, when a jury was locked up for failing to convict.
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
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.
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?
I'm sure you're going to post a link......
We can watch it played out in real time. Call me foxadamus...
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.
This is your decision. The Government will implement what you decide.
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.
And that decision has been made. Yesterday's judgement was on the process for achieving that. My rights as a sneering member of the international, anti-British, anti-all that is good and decent in the world, Remain voting elite are just as important as yours, I'm afraid; and before yesterday's judgment the government was going to begin a process to take some of them away without any Parliamentary scrutiny.
That may be the consequence, but does face the same problem that the Leadsom v May member vote faced, namely that whilst the process might itself have been healthy the weeks of delay and uncertainty whilst it took place would be decidedly unhealthy, and quite possibly damaging, in the current extremely fragile economic and business climate.
I keep asking what the point is of debating Article 50. "We're important so we want to know," isn't enough. When we used to have Summit meetings between East and West, no one demanded that the US President or British PM give a complete dossier of how much they would concede. That's because we all wanted them to succeed.
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
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.
This is your decision. The Government will implement what you decide.
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.
Only in the eyes of people who are asses.
The law is imperfect, and judges and juries make mistakes. Few people would disagree with that. But saying that the law is an ass based on reports on newspapers, tw*tter headlines or other social media is a very dangerous road to go down.
Court cases are more complex than newspaper summaries (often going for clickbait headlines) allow for.
I keep asking what the point is of debating Article 50. "We're important so we want to know," isn't enough. When we used to have Summit meetings between East and West, no one demanded that the US President or British PM give a complete dossier of how much they would concede. That's because we all wanted them to succeed.
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
Isn't that the basis of Parliamentary democracy? We do leave decisions to our elected representatives. Their job is to understand things better than voters, who are busy getting on with other things. We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms.
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
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.
We're certainly in an interesting time, and Mr. Herdson's article has a suggestion worthy of consideration.
The Lib Dems are in danger here. Might seem an odd thing to say given Cameron roasted them at the last election, but if their peers bugger this up, it'll reduce the chance of getting tactical votes from both Leave voters and those who voted Remain but quite like the idea of the electorate having its opinion taken seriously.
Obvious potential risk for Labour (I don't think that'll materialise directly unless Lammy gets a lot on-side) and gains for UKIP (if they can hold together).
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?
Because there's been enough consideration - we had months of it, and Leave won. The British people really don't like bad losers, so the reaction to the attempted overturning of their decision is quite understandable.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory. Given the concept of popular sovereignty that is wrong. What Parliament said was that the people would decide, albeit the details of how and when were still matters for the elected government. The Court are not "enemies of the people" as the DM claims but they have not given any weight to the peoples' decision. The people have (narrowly) decided that we are to leave and that Article 50 is to be triggered. This is no longer a decision for Parliament, it has been decided by Parliament's boss.
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
Oh, come off it.
It's a plain statement of fact. Read the judgment.
An excellent header from David. It does pb.com proud. If only some of our national press could bring such rational thought processes to bear. But maybe we each get what our readers deserve....
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.
That would be seen as a political promise, with the same weight as a manifesto commitment, i would imagine. Politically but not legally significant.
The key point is that the Referendum Act did not, unlike its predecessor on the voting system, contain a clause setting out who would take what actions in the event of the voters voting for change.
The position looks clearer if we turn the question around - assume just hypothetically that the government has said, "thanks for your views, we see the leave vote but it was very close and leaving right now would be risky, so we won't do it" - under what law could they be challenged? Despite the very real political outrage that such a response would have generated, I do not see that the discontented would have an obvious legal redress (whether a revolution qualifies is a debate for another day!).
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.
Only in the eyes of people who are asses.
The law is imperfect, and judges and juries make mistakes. Few people would disagree with that. But saying that the law is an ass based on reports on newspapers, tw*tter headlines or other social media is a very dangerous road to go down.
Court cases are more complex than newspaper summaries (often going for clickbait headlines) allow for.
I've read the judgement itself and I still don't agree with them. We don't yet know which laws will or will not be repealed and won't until negotiations are concluded. So as yet there is nothing to vote on.
Leaving aside the legal arguments, the real risk of a Parliamentary vote is that May will be forced into a binding position on things she won't get - e.g. restrictions on movement and access to the single market - rendering any idea of negotiations moot and forcing us into a disorderly hard Brexit, with disastrous implications for everyone including the EU.
If the Supreme Court upholds this, I can't see any alternative to a general election. That may be good news for UKIP and the Conservatives. I wonder if Labour have considered the implications? I suspect not, or that idiot Emily Thornberry might not have sounded quite so triumphalist this morning.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory. Given the concept of popular sovereignty that is wrong. What Parliament said was that the people would decide, albeit the details of how and when were still matters for the elected government. The Court are not "enemies of the people" as the DM claims but they have not given any weight to the peoples' decision. The people have (narrowly) decided that we are to leave and that Article 50 is to be triggered. This is no longer a decision for Parliament, it has been decided by Parliament's boss.
The people were told that Article 50 would be triggered the day after the referendum. If anything, that is what they voted for. The government, therefore, failed to deliver on what it promised. If it had done as it promised, none of this would have happened. But it didn't; it lied. When a government lies, the only protection we have is our Parliament and the courts.
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.
I don't follow that argument. A government can only implement decisions if it commands a majority in parliament; requiring them to go through the process of passing a bill can hardly be seen as frustrating that commitment.
I fully understand the outrage - and there is no doubt that a very large number of people will share the feelings of the Barnsley residents on R4 this morning who were expressing bemusement that we are not already 'out'. May should have, and still must I think, ram a one line bill through the commons, and threaten the Lords with extinction if they meddle. Far better politics than a snap election.
Mr. Observer, it's the court of public opinion. Legally, the Government has lost its case. But most voters looking at it will think this stinks.
The BBC were wise not to show the smug as hell lawyer on the News at Ten, but their reporter describing this as a clash between an overmighty government used to doing what it liked and independent judges is not a view that will find much common ground or favour with the general public, outside of those keen to frustrate and deny the referendum result.
Interestingly Gina Miller makes the point that Brexit isn't a binary choice so the question we were asked doesn't have a single answer. If we were asked whether we want to retain our parliamentary democracy YES or NO it wouldn't be unreasonable for the people to be given better and further particulars before this was enacted and for the judiciary to rule that this should happen
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.
In the court case. Paragraph 105 refers. You're criticising the judges for not deciding the case on a basis that the government thought so hopeless that it didn't try to argue.
They didn't argue it because governments don't really like the concept of popular sovereignty. They were wrong not to do so.
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.
And that decision has been made. Yesterday's judgement was on the process for achieving that. My rights as a sneering member of the international, anti-British, anti-all that is good and decent in the world, Remain voting elite are just as important as yours, I'm afraid; and before yesterday's judgment the government was going to begin a process to take some of them away without any Parliamentary scrutiny.
That simply isn't true. There has been plenty of parliamentary scrutiny on whether the UK should leave the EU and in the end they decided to let the people decide.
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.
Were the government acting on a whim, that would be a fair point. It isn't so acting.
Yes it is. The government told us that Article 50 would be triggered the day after the referendum in the case of a Leave victory. That did not happen. The government is acting on a series of whims.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory. Given the concept of popular sovereignty that is wrong. What Parliament said was that the people would decide, albeit the details of how and when were still matters for the elected government. The Court are not "enemies of the people" as the DM claims but they have not given any weight to the peoples' decision. The people have (narrowly) decided that we are to leave and that Article 50 is to be triggered. This is no longer a decision for Parliament, it has been decided by Parliament's boss.
You should be advising the government.
I certainly that the ruling is far too cavalier in dismissing the result of the referendum.
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
The judiciary's decision in the court case is one hundred percent technically correct. And that is all they can do. I'm in no doubt the supreme court will uphold the decision. (And the ECJ will not overturn the decision of the supreme court however it goes if it is referred to them (I doubt it will be, particularly if HC is upheld)). Basically Cameron fucked up big time when he drafted the referendum (Or whoever did at the time).
The politics however are another matter. May risks the return of UKIP with a vengeance if she messes up from here.
Javid sounded in combative mood on Question Time last night.
Also it is perfectly proper that the Daily Mail should be allowed to print the headline, it is populist right wing nonsense of course - but nevertheless we live in a country with a free press, and have to take headlines we both do and don't like. If they were to publish the judges' addresses and phone numbers of course that would be another matter.
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.
This is the aspect of her behaviour that worries me the most.
She feels she is always 100% familiar with all the detail, and expects her ministers to be the same.
She simply can't do it across everything as PM (not enough time) so when it does happen, she thinks it's their fault, not hers, because she wouldn't make the same mistakes.
I keep asking what the point is of debating Article 50. "We're important so we want to know," isn't enough. When we used to have Summit meetings between East and West, no one demanded that the US President or British PM give a complete dossier of how much they would concede. That's because we all wanted them to succeed.
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
Isn't that the basis of Parliamentary democracy? We do leave decisions to our elected representatives. Their job is to understand things better than voters, who are busy getting on with other things. We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms.
Except that any terms "sorted out" by parliamentary debate are highly unlikely to survive the first day of formal negotiations in Brussels. Or are you suggesting we take a delegation of 650 MPs along ?
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.
And that decision has been made. Yesterday's judgement was on the process for achieving that. My rights as a sneering member of the international, anti-British, anti-all that is good and decent in the world, Remain voting elite are just as important as yours, I'm afraid; and before yesterday's judgment the government was going to begin a process to take some of them away without any Parliamentary scrutiny.
That simply isn't true. There has been plenty of parliamentary scrutiny on whether the UK should leave the EU and in the end they decided to let the people decide.
We are going to leave the EU. That debate is done. The extent to which the rights that British citizens currently enjoy will be removed as a result has not been debated.
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.
Were the government acting on a whim, that would be a fair point. It isn't so acting.
Yes it is. The government told us that Article 50 would be triggered the day after the referendum in the case of a Leave victory. That did not happen. The government is acting on a series of whims.
I appreciate that you're not a Tory, but the hard line taken by the Cameron administration in an attempt to scare people into voting Remain is one the most despicable things about this whole episode.
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
Presumably, the Court would have taken the view that the exercise of A 50 by Cameron was invalid.
"...to what extent did the referendum of itself confer legitimacy on the government to trigger Article 50?"
The judgement did briefly consider that point - in that it referred to the Referendum as being 'Advisory', and therefore as this was debated in Parliament clearly at the time it confers no constitutional legitimacy in itself.
I keep asking what the point is of debating Article 50. "We're important so we want to know," isn't enough. When we used to have Summit meetings between East and West, no one demanded that the US President or British PM give a complete dossier of how much they would concede. That's because we all wanted them to succeed.
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
Isn't that the basis of Parliamentary democracy? We do leave decisions to our elected representatives. Their job is to understand things better than voters, who are busy getting on with other things. We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms.
Yes, but none of that requires them to vote again in a vote that could mean that we don't.
In particular, they have already agreed to the "how" when they passed the Lisbon Treaty.
Mr. Observer, it's the court of public opinion. Legally, the Government has lost its case. But most voters looking at it will think this stinks.
The BBC were wise not to show the smug as hell lawyer on the News at Ten, but their reporter describing this as a clash between an overmighty government used to doing what it liked and independent judges is not a view that will find much common ground or favour with the general public, outside of those keen to frustrate and deny the referendum result.
The media will frame things in the way that the media will frame things. They will spin and they will lie an they will seek to manipulate opinion. That is one of the reasons why we have an independent judiciary and why having one is so fundamental to a democracy. Without an independent judiciary we are China.
This is all very interesting, but the PM could put it to a vote in the HoC and win a handy majority, even without Labour. If it is true that the Labour Lords leader has said they won't play silly buggers then there is no reason not to push ahead with a vote.
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.
Agree with that basic, fundamental issue.
They got it wrong.
I rather think that it is the OP who is wrong, on the basis that if we sent the A50 notification and did absolutely nothing else, there would very clearly be a significant change two years later.
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.
This is your decision. The Government will implement what you decide.
The problem with that is that the Government were being dishonest - as they were about so much else about the referendum. They had no right to make that promise knowing that it was not true. Just as they had no right to make the other false claims they made in their 'neutral' leaflet.
We should not have been fooled by their claims about the EU and we certainly should not have been fooled by their claims about the nature of the referendum.
The people were told that Article 50 would be triggered the day after the referendum. If anything, that is what they voted for. The government, therefore, failed to deliver on what it promised. If it had done as it promised, none of this would have happened. But it didn't; it lied. When a government lies, the only protection we have is our Parliament and the courts.
Yes we were told that and with the benefit of hindsight it is a pity that Cameron did not keep that promise even although he had not done any preparatory work or allowed it to be done. But he was right to acknowledge that the decision had been made. This is not a question for Parliament any more. Of course they still have several very important roles.
They can challenge and test the government's negotiating position. At least in theory they could direct the government to seek membership of the Customs Union for example. If the government does not obey they can dismiss it.
They also require to pass legislation to repeal the ECA and make provision for the thousands of other cases where EU law has become our law. They have autonomy and discretion as to how they do this.
This is all very interesting, but the PM could put it to a vote in the HoC and win a handy majority, even without Labour. If it is true that the Labour Lords leader has said they won't play silly buggers then there is no reason not to push ahead with a vote.
I keep asking what the point is of debating Article 50. "We're important so we want to know," isn't enough. When we used to have Summit meetings between East and West, no one demanded that the US President or British PM give a complete dossier of how much they would concede. That's because we all wanted them to succeed.
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
Isn't that the basis of Parliamentary democracy? We do leave decisions to our elected representatives. Their job is to understand things better than voters, who are busy getting on with other things. We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms.
Yes, but none of that requires them to vote again in a vote that could mean that we don't.
In particular, they have already agreed to the "how" when they passed the Lisbon Treaty.
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.
Only in the eyes of people who are asses.
The law is imperfect, and judges and juries make mistakes. Few people would disagree with that. But saying that the law is an ass based on reports on newspapers, tw*tter headlines or other social media is a very dangerous road to go down.
Court cases are more complex than newspaper summaries (often going for clickbait headlines) allow for.
I've read the judgement itself and I still don't agree with them. We don't yet know which laws will or will not be repealed and won't until negotiations are concluded. So as yet there is nothing to vote on.
Leaving aside the legal arguments, the real risk of a Parliamentary vote is that May will be forced into a binding position on things she won't get - e.g. restrictions on movement and access to the single market - rendering any idea of negotiations moot and forcing us into a disorderly hard Brexit, with disastrous implications for everyone including the EU.
If the Supreme Court upholds this, I can't see any alternative to a general election. That may be good news for UKIP and the Conservatives. I wonder if Labour have considered the implications? I suspect not, or that idiot Emily Thornberry might not have sounded quite so triumphalist this morning.
Yes, we need a general election. That is completely clear.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory.
But the Referendum Act *doesn't* indicate that the vote was advisory.
Liberal version of Trump incoming to a presidential race in the near future....the "he writes the symbol for humility on his hand every morning really tickled my funny bone"
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
Presumably, the Court would have taken the view that the exercise of A 50 by Cameron was invalid.
But the EU would have accepted the exercise of A50.
The ultimate situation might then be the Court claiming that the UK had not left the EU but the EU and the UK government both saying it had.
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
Oh, come off it.
It's a plain statement of fact. Read the judgment.
Given that the judgement is wrong, referring me to it is not a winning argument.
This is all very interesting, but the PM could put it to a vote in the HoC and win a handy majority, even without Labour. If it is true that the Labour Lords leader has said they won't play silly buggers then there is no reason not to push ahead with a vote.
Well, other than to let the appeal to the Supreme Court take its course and resolve an important point of our constitution.
But yes, as I said straight after the ruling, it is now for Labour to be seen trying to prevent Brexit, or it goes ahead as was.
The people were told that Article 50 would be triggered the day after the referendum. If anything, that is what they voted for. The government, therefore, failed to deliver on what it promised. If it had done as it promised, none of this would have happened. But it didn't; it lied. When a government lies, the only protection we have is our Parliament and the courts.
Yes we were told that and with the benefit of hindsight it is a pity that Cameron did not keep that promise even although he had not done any preparatory work or allowed it to be done. But he was right to acknowledge that the decision had been made. This is not a question for Parliament any more. Of course they still have several very important roles.
They can challenge and test the government's negotiating position. At least in theory they could direct the government to seek membership of the Customs Union for example. If the government does not obey they can dismiss it.
They also require to pass legislation to repeal the ECA and make provision for the thousands of other cases where EU law has become our law. They have autonomy and discretion as to how they do this.
But the decision to leave has been made.
Yep. And yesterday's judgment does not change that. But Cameron's lies show just how important it is that parliament holds the executive to account, especially when the rights of private citizens are at stake.
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.
That would be seen as a political promise, with the same weight as a manifesto commitment, i would imagine. Politically but not legally significant.
If it was a political promise it would have had to be a campaign leaflet and therefore fall within the campaign spending limits.
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
Oh, come off it.
It's a plain statement of fact. Read the judgment.
Given that the judgement is wrong, referring me to it is not a winning argument.
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.
Were the government acting on a whim, that would be a fair point. It isn't so acting.
Yes it is. The government told us that Article 50 would be triggered the day after the referendum in the case of a Leave victory. That did not happen. The government is acting on a series of whims.
Yes, that is the key point.
May has already delayed her intention to trigger Article 50 until nine months after the referendum. She could, if she wished or otherwise decided, delay still further, and the betting markets indicate that some people think that she will. She could, when her announced date arrives, decide to delay for a further year, and could, if she wished, continue this process indefinitely. Whilst she would clearly be in political trouble I do not see any legal obstacle here since the referendum act itself doesn't actually require anyone to do anything nor - and this is the crucial point - does the bill contain the clauses often found in legislation that give powers to ministers to deal with subsidiary matters by way of statutory instrument.
"We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms."
True.
However, as you know, the intention of this legal challenge is to subvert the will of the people. That is the problem.
If we decided to have a Referendum on restoring the death penalty, I would vote against. But it might pass. I would accept the decision.
I would not argue, for instance that the supporters had lied by saying that the conviction rate for murder had risen as a result of abolition. Or by saying that it was a result of potential murders thinking they could get away with it. I might suggest it was more likely due to juries being more likely to convict because the consequences of error were less serious, but that's interpretation.
Statistics don't lie, but the interpretation of statistics can be wrong. As Kipling observed ... 'If you can bear to hear the truth you've spoken Twisted by knaves to make a trap for fools.'
Remainers who moan about 'lies', that is the interpretation of facts they don't agree with, make fools of themselves.
But to dishonestly claim that it's all about openness and transparency is clearly absurd.
Mr Meeks has the candour to say why he's against the result. I give him credit for that. I wish others were so honest.
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.
Only in the eyes of people who are asses.
The law is imperfect, and judges and juries make mistakes. Few people would disagree with that. But saying that the law is an ass based on reports on newspapers, tw*tter headlines or other social media is a very dangerous road to go down.
Court cases are more complex than newspaper summaries (often going for clickbait headlines) allow for.
I've read the judgement itself and I still don't agree with them. We don't yet know which laws will or will not be repealed and won't until negotiations are concluded. So as yet there is nothing to vote on.
Leaving aside the legal arguments, the real risk of a Parliamentary vote is that May will be forced into a binding position on things she won't get - e.g. restrictions on movement and access to the single market - rendering any idea of negotiations moot and forcing us into a disorderly hard Brexit, with disastrous implications for everyone including the EU.
If the Supreme Court upholds this, I can't see any alternative to a general election. That may be good news for UKIP and the Conservatives. I wonder if Labour have considered the implications? I suspect not, or that idiot Emily Thornberry might not have sounded quite so triumphalist this morning.
Was the judgement about which laws will or will not be repealed, or about whether the government can start the A50 process without parliament giving it the nod?
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
Presumably, the Court would have taken the view that the exercise of A 50 by Cameron was invalid.
But the EU would have accepted the exercise of A50.
The ultimate situation might then be the Court claiming that the UK had not left the EU but the EU and the UK government both saying it had.
It would have been moot. A50 would have been triggered, so de facto we would be in the process of leaving. At most, it would have meant that if he had stayed in office Cameron would have been forced to resign.
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.
That would be seen as a political promise, with the same weight as a manifesto commitment, i would imagine. Politically but not legally significant.
If it was a political promise it would have had to be a campaign leaflet and therefore fall within the campaign spending limits.
The only point here is the difference between a promise from an actual government as against a prospective one. But we all know that even promises from actual governments are not binding.
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory.
But the Referendum Act *doesn't* indicate that the vote was advisory.
It could have been made binding, but the choice was made not to.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory.
But the Referendum Act *doesn't* indicate that the vote was advisory.
The debate in Hansard does, and that should be read as the 'Intention of Parliament'.
I am not sure that we have yet commented on who these judges actually are. We are not talking about any common or Garden High Court Judge, but instead the most senior judges in the country.
The judges hearing the case were:
The Lord Chief Justice - who is the head of the judiciary. Originally the head of the judiciary was the Lord Chancellor but following the Blair reforms it is now the Lord Chief Justice. He is also the president of the criminal division of the Court of Appeal.
The Master of the Rolls - who is the second highest judge after the Lord Chief Justice. He is the presiding officer of the civil division of the Court of Appeal.
Lord Justices Sales - who is normally a judge in the court of appeal.
Effectively an attack on them could be construed as an attack on the judiciary as a whole.
The only legally based criticism that I seen of the judgement is the one that David raises in his heading - where does power now sit, in parliament or with the people in an "advisory" referendum? Does the constitutional argument that government can not take away rights and powers of individuals unless through an act of parliament continue to exist when the result of a referendum was that the people decided they did not want those rights (even if these points were not necessarily why people voted the way they did)?
Whatever the rights and wrongs of the issue the government issued a leaflet saying something like "we will implement your decision" and then promised to invoke A50 immediately on the event of a Leave vote.
Its an utter indictment on Cameron that we're now in this mess.
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.
And that decision has been made. Yesterday's judgement was on the process for achieving that. My rights as a sneering member of the international, anti-British, anti-all that is good and decent in the world, Remain voting elite are just as important as yours, I'm afraid; and before yesterday's judgment the government was going to begin a process to take some of them away without any Parliamentary scrutiny.
That simply isn't true. There has been plenty of parliamentary scrutiny on whether the UK should leave the EU and in the end they decided to let the people decide.
We are going to leave the EU. That debate is done. The extent to which the rights that British citizens currently enjoy will be removed as a result has not been debated.
And that is a matter for the ECA72 repeal Bill debate.
"We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms."
True.
However, as you know, the intention of this legal challenge is to subvert the will of the people. That is the problem.
If we decided to have a Referendum on restoring the death penalty, I would vote against. But it might pass. I would accept the decision.
I would not argue, for instance that the supporters had lied by saying that the conviction rate for murder had risen as a result of abolition. Or by saying that it was a result of potential murders thinking they could get away with it. I might suggest it was more likely due to juries being more likely to convict because the consequences of error were less serious, but that's interpretation.
Statistics don't lie, but the interpretation of statistics can be wrong. As Kipling observed ... 'If you can bear to hear the truth you've spoken Twisted by knaves to make a trap for fools.'
Remainers who moan about 'lies', that is the interpretation of facts they don't agree with, make fools of themselves.
But to dishonestly claim that it's all about openness and transparency is clearly absurd.
Mr Meeks has the candour to say why he's against the result. I give him credit for that. I wish others were so honest.
No, I don't know that the purpose of the challenge was to subvert the will of the people. The purpose of the challenge was to prevent the government from triggering Article 50 without the approval of Parliament. Parliament will approve the triggering of Article 50, but if it doesn't the government will resign, an election will be called and the governing party will win an increased majority. There is no route from here for the UK to stay in the EU without the express and direct permission of the British people.
10h Julia Ioffe @juliaioffe I spent the day with Trump supporters in Tennessee. They told me the country is on the wrong path, and that the earth is flat. Literally.
Whatever the rights and wrongs of the issue the government issued a leaflet saying something like "we will implement your decision" and then promised to invoke A50 immediately on the event of a Leave vote.
Its an utter indictment on Cameron that we're now in this mess.
I am not sure that we have yet commented on who these judges actually are. We are not talking about any common or Garden High Court Judge, but instead the most senior judges in the country.
The judges hearing the case were:
The Lord Chief Justice - who is the head of the judiciary. Originally the head of the judiciary was the Lord Chancellor but following the Blair reforms it is now the Lord Chief Justice. He is also the president of the criminal division of the Court of Appeal.
The Master of the Rolls - who is the second highest judge after the Lord Chief Justice. He is the presiding officer of the civil division of the Court of Appeal.
Lord Justices Sales - who is normally a judge in the court of appeal.
Effectively an attack on them could be construed as an attack on the judiciary as a whole.
The only legally based criticism that I seen of the judgement is the one that David raises in his heading - where does power now sit, in parliament or with the people in an "advisory" referendum? Does the constitutional argument that government can not take away rights and powers of individuals unless through an act of parliament continue to exist when the result of a referendum was that the people decided it did not want those rights (even if these points were not necessarily why people voted the way they did)?
This is where I think the judgement strays into the wrong areas, when it looks at the rights conferred by the 1972 Act. The narrower point of the judgement looks to be that because of the wording of Article 50, then by implication its lack of ability to withdraw notification repeals the Act without the Legislative authority.
Had the Article allowed notification to be withdrawn at the end of the process, the case would have fallen.
"...to what extent did the referendum of itself confer legitimacy on the government to trigger Article 50?"
The judgement did briefly consider that point - in that it referred to the Referendum as being 'Advisory', and therefore as this was debated in Parliament clearly at the time it confers no constitutional legitimacy in itself.
The Commons debate clearly stated - in the very first sentence - that the referendum Bill was to give the British people the final say. If Parliament didn't like that they could have amended the Bill.
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.
It's rather reminiscent of buying PPI insurance, and then discovering that it doesn't cover you when you lose your job.
How would this ruling have been affected if Cameron had kept his promise to invoke A50 immediately ?
The case would never have been brought.
The law would still be the law. The case could have been brought, and we might have ended up in a *worse* situation: one where we had started A50, but the courts said we had done so illegally.
Meanwhile, the two-year clock would still be ticking as we tried to work out if we had any right to be negotiating ...
This is all very interesting, but the PM could put it to a vote in the HoC and win a handy majority, even without Labour. If it is true that the Labour Lords leader has said they won't play silly buggers then there is no reason not to push ahead with a vote.
Well, other than to let the appeal to the Supreme Court take its course and resolve an important point of our constitution.
But yes, as I said straight after the ruling, it is now for Labour to be seen trying to prevent Brexit, or it goes ahead as was.
Only on this single issue, the judgement made clear that it was not making a judgement on the reserved power of the crown, but the ability of the government to act in this single case and if rights lost by British people with A50 being triggered were irrevocably lost. On balance they probably are, but then again the people just voted to lose them. Anyway, as I said it's of little consequence, it looks like an enabling act will get smooth passage anyway.
@philippa1110: And finally: based on the Leavers' reaction to a court decision in favour of UK parliamentary sovereignty, how dare they call us Remoaners??
Nick Clegg is a dick. He is trying to conflate the triggering of A50 with the flavour of Brexit we get.
He should not. For better or for worse (there are of course discussions to be had around this) it is up to the government to negotiate Brexit. It is up to Parliament to respect the referendum result by setting the process in motion.
Whatever the rights and wrongs of the issue the government issued a leaflet saying something like "we will implement your decision" and then promised to invoke A50 immediately on the event of a Leave vote.
Its an utter indictment on Cameron that we're now in this mess.
Yes, it is.
Except that governments can still be taken to court as judicial review of a decision already taken. Which may well be why Cameron never kept his promise (although clearly other possibilities also spring to mind)
@HolyroodLiam: To be fair when the Leave campaign moaned about foreign judges ruling on UK law they never said they'd be ok with British ones doing it.
The Leavers never said they would respect the rule of law.
Mr. Observer, it's the court of public opinion. Legally, the Government has lost its case. But most voters looking at it will think this stinks.
The BBC were wise not to show the smug as hell lawyer on the News at Ten, but their reporter describing this as a clash between an overmighty government used to doing what it liked and independent judges is not a view that will find much common ground or favour with the general public, outside of those keen to frustrate and deny the referendum result.
The media will frame things in the way that the media will frame things. They will spin and they will lie an they will seek to manipulate opinion. That is one of the reasons why we have an independent judiciary and why having one is so fundamental to a democracy. Without an independent judiciary we are China.
That has validity in all cases except when there is a decision by referendum. If Parliament is to be the servant of the nation rather than its master, it can't overturn a referendum result.
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.
Agree with that basic, fundamental issue.
They got it wrong.
I rather think that it is the OP who is wrong, on the basis that if we sent the A50 notification and did absolutely nothing else, there would very clearly be a significant change two years later.
Very interesting piece David. As I said yesterday the lawyers for the Government seem to have chosen the wrong battleground.
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory.
But the Referendum Act *doesn't* indicate that the vote was advisory.
It is silent on the point but the convention, based on the old idea of Parliamentary sovereignty, is that it is still for Parliament to decide. That is the basis of the Court's decision.
I am not sure that we have yet commented on who these judges actually are. We are not talking about any common or Garden High Court Judge, but instead the most senior judges in the country.
The judges hearing the case were:
The Lord Chief Justice - who is the head of the judiciary. Originally the head of the judiciary was the Lord Chancellor but following the Blair reforms it is now the Lord Chief Justice. He is also the president of the criminal division of the Court of Appeal.
The Master of the Rolls - who is the second highest judge after the Lord Chief Justice. He is the presiding officer of the civil division of the Court of Appeal.
Lord Justices Sales - who is normally a judge in the court of appeal.
Effectively an attack on them could be construed as an attack on the judiciary as a whole.
The only legally based criticism that I seen of the judgement is the one that David raises in his heading - where does power now sit, in parliament or with the people in an "advisory" referendum? Does the constitutional argument that government can not take away rights and powers of individuals unless through an act of parliament continue to exist when the result of a referendum was that the people decided it did not want those rights (even if these points were not necessarily why people voted the way they did)?
We voted to leave the European Union. As there are multiple ways in which that can be done it would have been impossible to define what rights we were voting to give up. As it happens, and for what it is worth, the Leave campaign made great play of the fact that nothing much would change and that the rights we currently enjoy as private citizens would be largely, if not completely, unaffected by a decision to leave. But that is by the by.
Mr. Observer, it's the court of public opinion. Legally, the Government has lost its case. But most voters looking at it will think this stinks.
The BBC were wise not to show the smug as hell lawyer on the News at Ten, but their reporter describing this as a clash between an overmighty government used to doing what it liked and independent judges is not a view that will find much common ground or favour with the general public, outside of those keen to frustrate and deny the referendum result.
The media will frame things in the way that the media will frame things. They will spin and they will lie an they will seek to manipulate opinion. That is one of the reasons why we have an independent judiciary and why having one is so fundamental to a democracy. Without an independent judiciary we are China.
That has validity in all cases except when there is a decision by referendum. If Parliament is to be the servant of the nation rather than its master, it can't overturn a referendum result.
Comments
http://www.constitution.org/trials/penn/penn-mead.htm
https://twitter.com/SamCoatesTimes/status/794107810065874944
While it might be good practice to provide supporting links, the propensity of some to demand them as though it's a human right is mildly amusing.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515068/why-the-government-believes-that-voting-to-remain-in-the-european-union-is-the-best-decision-for-the-uk.pdf
It's beyond make it up land - hate to think what they've found in there.
It's IP address is on Twitter
Unfortunately, 'We want to delay things and then 'reluctantly' vote against,' is definitely the aim of some. They want a fig leaf to subvert the will of the people.
Why not be honest and say outright ... "The people don't agree with me, but as I know I'm more intelligent and have better judgement than anyone else, I should make the important decisions."
The law is imperfect, and judges and juries make mistakes. Few people would disagree with that. But saying that the law is an ass based on reports on newspapers, tw*tter headlines or other social media is a very dangerous road to go down.
Court cases are more complex than newspaper summaries (often going for clickbait headlines) allow for.
They got it wrong.
We're certainly in an interesting time, and Mr. Herdson's article has a suggestion worthy of consideration.
The Lib Dems are in danger here. Might seem an odd thing to say given Cameron roasted them at the last election, but if their peers bugger this up, it'll reduce the chance of getting tactical votes from both Leave voters and those who voted Remain but quite like the idea of the electorate having its opinion taken seriously.
Obvious potential risk for Labour (I don't think that'll materialise directly unless Lammy gets a lot on-side) and gains for UKIP (if they can hold together).
I do agree that the idea of popular sovereignty, that is sovereignty that is based in the will of the people, is an idea that is coming and gaining ever more theoretical support. Detailed submissions were made in support of the concept in the Supreme Court by the Scottish government in respect of the Named Person legislation very recently. Unfortunately, the Court did not feel it necessary to address the question in their judgment.
I think the Scottish Government was both right and wrong on the point. They are right in that it is simply inconceivable that Westminster could abolish Holyrood without the prior consent of the Scottish people. That is in the new Scotland Act but I think that was just recognition of a clear reality. Classical Constitutional theory says that is a nonsense because no Parliament can bind a future Parliament so the legislation creating the Scottish Parliament can simply be repealed but I think we have moved beyond the point where that is a political impossibility into a situation where it is also a legal impossibility. Where they were wrong was to move from the proposition that they cannot be abolished to a proposition that they do not need to play by the rules.
There are strong shades of that argument in the present case. The Court dismissed the argument that Parliament had had a say in the Referendum Act because it said little about what was to happen in the event of a Leave vote and indicated that the vote was advisory. Given the concept of popular sovereignty that is wrong. What Parliament said was that the people would decide, albeit the details of how and when were still matters for the elected government. The Court are not "enemies of the people" as the DM claims but they have not given any weight to the peoples' decision. The people have (narrowly) decided that we are to leave and that Article 50 is to be triggered. This is no longer a decision for Parliament, it has been decided by Parliament's boss.
“do we want him smacking the Queen of England’s butt during a meeting?”
http://lordashcroftpolls.com/2016/11/do-we-want-him-smacking-the-queen-of-englands-butt-my-final-pre-election-focus-groups-in-ohio/
The key point is that the Referendum Act did not, unlike its predecessor on the voting system, contain a clause setting out who would take what actions in the event of the voters voting for change.
The position looks clearer if we turn the question around - assume just hypothetically that the government has said, "thanks for your views, we see the leave vote but it was very close and leaving right now would be risky, so we won't do it" - under what law could they be challenged? Despite the very real political outrage that such a response would have generated, I do not see that the discontented would have an obvious legal redress (whether a revolution qualifies is a debate for another day!).
Leaving aside the legal arguments, the real risk of a Parliamentary vote is that May will be forced into a binding position on things she won't get - e.g. restrictions on movement and access to the single market - rendering any idea of negotiations moot and forcing us into a disorderly hard Brexit, with disastrous implications for everyone including the EU.
If the Supreme Court upholds this, I can't see any alternative to a general election. That may be good news for UKIP and the Conservatives. I wonder if Labour have considered the implications? I suspect not, or that idiot Emily Thornberry might not have sounded quite so triumphalist this morning.
I fully understand the outrage - and there is no doubt that a very large number of people will share the feelings of the Barnsley residents on R4 this morning who were expressing bemusement that we are not already 'out'. May should have, and still must I think, ram a one line bill through the commons, and threaten the Lords with extinction if they meddle.
Far better politics than a snap election.
The BBC were wise not to show the smug as hell lawyer on the News at Ten, but their reporter describing this as a clash between an overmighty government used to doing what it liked and independent judges is not a view that will find much common ground or favour with the general public, outside of those keen to frustrate and deny the referendum result.
FOP CALL **** 1 HOUR **** FOP CALL **** 1 HOUR **** FOP CALL **** 1 HOUR
I certainly that the ruling is far too cavalier in dismissing the result of the referendum.
The politics however are another matter. May risks the return of UKIP with a vengeance if she messes up from here.
Javid sounded in combative mood on Question Time last night.
Also it is perfectly proper that the Daily Mail should be allowed to print the headline, it is populist right wing nonsense of course - but nevertheless we live in a country with a free press, and have to take headlines we both do and don't like.
If they were to publish the judges' addresses and phone numbers of course that would be another matter.
She feels she is always 100% familiar with all the detail, and expects her ministers to be the same.
She simply can't do it across everything as PM (not enough time) so when it does happen, she thinks it's their fault, not hers, because she wouldn't make the same mistakes.
Or are you suggesting we take a delegation of 650 MPs along ?
It seems the mysterious Chinese tourists of Kidlington were already doing that:
' Chinese tourists are descending on an English village in search of "the true sense" of the UK, the BBC can reveal.
Residents were baffled by coaches of sightseers arriving in Kidlington, Oxfordshire and posing for photos in front gardens and against parked cars.
But a guide has now confirmed the tourists are attracted by the quiet houses and gardens. '
http://www.bbc.co.uk/news/uk-england-oxfordshire-37820663
The judgement did briefly consider that point - in that it referred to the Referendum as being 'Advisory', and therefore as this was debated in Parliament clearly at the time it confers no constitutional legitimacy in itself.
In particular, they have already agreed to the "how" when they passed the Lisbon Treaty.
http://www.bbc.co.uk/news/uk-england-37861928
We should not have been fooled by their claims about the EU and we certainly should not have been fooled by their claims about the nature of the referendum.
If they can I think the Mail decided this was obviously a risk worth taking.
They can challenge and test the government's negotiating position. At least in theory they could direct the government to seek membership of the Customs Union for example. If the government does not obey they can dismiss it.
They also require to pass legislation to repeal the ECA and make provision for the thousands of other cases where EU law has become our law. They have autonomy and discretion as to how they do this.
But the decision to leave has been made.
http://www.telegraph.co.uk/obituaries/2016/11/01/molly-rose-spitfire-pilot--obituary/
https://youtu.be/mEM8c46QBi4
The ultimate situation might then be the Court claiming that the UK had not left the EU but the EU and the UK government both saying it had.
But yes, as I said straight after the ruling, it is now for Labour to be seen trying to prevent Brexit, or it goes ahead as was.
May has already delayed her intention to trigger Article 50 until nine months after the referendum. She could, if she wished or otherwise decided, delay still further, and the betting markets indicate that some people think that she will. She could, when her announced date arrives, decide to delay for a further year, and could, if she wished, continue this process indefinitely. Whilst she would clearly be in political trouble I do not see any legal obstacle here since the referendum act itself doesn't actually require anyone to do anything nor - and this is the crucial point - does the bill contain the clauses often found in legislation that give powers to ministers to deal with subsidiary matters by way of statutory instrument.
"We have decided to leave the EU. It is now up to our elected representatives to sort out how that will happen and under what terms."
True.
However, as you know, the intention of this legal challenge is to subvert the will of the people. That is the problem.
If we decided to have a Referendum on restoring the death penalty, I would vote against. But it might pass. I would accept the decision.
I would not argue, for instance that the supporters had lied by saying that the conviction rate for murder had risen as a result of abolition. Or by saying that it was a result of potential murders thinking they could get away with it. I might suggest it was more likely due to juries being more likely to convict because the consequences of error were less serious, but that's interpretation.
Statistics don't lie, but the interpretation of statistics can be wrong. As Kipling observed ... 'If you can bear to hear the truth you've spoken Twisted by knaves to make a trap for fools.'
Remainers who moan about 'lies', that is the interpretation of facts they don't agree with, make fools of themselves.
But to dishonestly claim that it's all about openness and transparency is clearly absurd.
Mr Meeks has the candour to say why he's against the result. I give him credit for that. I wish others were so honest.
http://www.bbc.co.uk/news/uk-scotland-37861162
The judges hearing the case were:
The Lord Chief Justice - who is the head of the judiciary. Originally the head of the judiciary was the Lord Chancellor but following the Blair reforms it is now the Lord Chief Justice. He is also the president of the criminal division of the Court of Appeal.
The Master of the Rolls - who is the second highest judge after the Lord Chief Justice. He is the presiding officer of the civil division of the Court of Appeal.
Lord Justices Sales - who is normally a judge in the court of appeal.
Effectively an attack on them could be construed as an attack on the judiciary as a whole.
The only legally based criticism that I seen of the judgement is the one that David raises in his heading - where does power now sit, in parliament or with the people in an "advisory" referendum? Does the constitutional argument that government can not take away rights and powers of individuals unless through an act of parliament continue to exist when the result of a referendum was that the people decided they did not want those rights (even if these points were not necessarily why people voted the way they did)?
Its an utter indictment on Cameron that we're now in this mess.
10h
Julia Ioffe @juliaioffe
I spent the day with Trump supporters in Tennessee. They told me the country is on the wrong path, and that the earth is flat. Literally.
Had the Article allowed notification to be withdrawn at the end of the process, the case would have fallen.
You won! Suck it up...
Meanwhile, the two-year clock would still be ticking as we tried to work out if we had any right to be negotiating ...
He should not. For better or for worse (there are of course discussions to be had around this) it is up to the government to negotiate Brexit. It is up to Parliament to respect the referendum result by setting the process in motion.
@HolyroodLiam: To be fair when the Leave campaign moaned about foreign judges ruling on UK law they never said they'd be ok with British ones doing it.
The Leavers never said they would respect the rule of law.