One really does have to wonder whether this challenge is really about legality or simply a smoke-screen for something else - stymying the actual vote or at least watering down the effects so that there is no real change; and why the issues were not raised by MP's rather than the legal system

Background

The question on the ballot paper was unequivocal: Did we want Britain to remain in the EU or leave?

The result was a clear majority of 52 per cent to 48 per cent and the vote was to Leave

MP's voted 6-1 in favour of holding the referendum in the first place

Funding for the Original Case

Perhaps not as transparent as it could have been

A great deal of the funding seems to have been provided by expats and others who have chosen not to live in the UK in the first place, as well as undisclosed businesses with their own agenda

Deir Dos Santos - CASE

Written Case of Deir Dos Santos

Question

Is the UK legal system in place to rectify errors, oversights or wishes of the disenfranchised when Parliament passes Acts?

At the time the 2015 European Union Referendum Act was passed, Parliament was quite at liberty to address the matter of the Royal Prerogative and limit its use – as has been done in other instances

Whatever the reasons were, at the time Parliament chose not to do this

Therefore is it appropriate at this stage for the legal system to try to re-write the 2015 European Union Referendum Act to exclude the Royal Prerogative after the event

Surely this approach is an abuse of the legislative process in trying to gerrymander the system in the aftermath of a majority vote that many disagreed with

Original Ruling

Justification for the original ruling seems to have been based upon historic precedents as far back as:

  • 1610 Case of Proclamations. The argument put forward was flawed because the impact of the statement ‘.. Brexit would have a direct impact on substantive legal rights under UK domestic law ..’ 

The actual direct action is to trigger Article 50, which by definition is an international treaty event (Royal Prerogative)

Everything subsequent to triggering Article 50 becomes an indirect domestic (Parliamentary) consequence relating to cause and effect and should not therefore be a material consideration in any judgement

  • 1689 Bill of Rights

‘.. For the reasons set out in the judgement, we decide that the Government does not have power under the Crown's prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union ..’ 

However, once one acknowledges that Article 50 is clearly an international treaty event and therefore subject to the Royal Prerogative then this judgement is instantly flawed. The fact that it is the causation of a 'knock-on' impact under UK domestic law is secondary and entirely irrelevant

However:

Let us just stop and think for a moment about the impact of a ruling against the Government over Article 50 on the basis of any secondary consequential events as a result of 'cause & effect'.

Supposing that as a result of a ruling against the Government the BREXIT vote was 'watered down' or even in the worst case scenario cancelled all together, against the wishes of the people.

What would be the consequence of the judiciary interfering with the peoples vote and effectively subjugating Parliament to their wishes - and if it is deemed acceptible what of anything in the future or even better let's trawl through the past and see if we can mount a legal challenge to anything historic that we don't like

Legality of the European Communities Act 1972

Was the UK's membership of the EU contrary to UK law and therefore invalid?

Was Britain Taken Into The EU Illegally?

Therefore perhaps the Supreme Court should address this issue before passing judgement on something that is dependant on valid membership of the EU in the first place

In any event, if everything was perfectly correct at the time then WHY did the following take place?

'.. In 1975, when the Government changed, Harold Wilson sought to put right the clear constitutional error by organising a retrospective referendum (something quite unprecedented in British history) designed to obtain the permission of the British people for Britain to join something it had already `joined' ..'

Clearly there are some questions that need answers before moving forward on the current legal challenge to Article 50

Legality of the CFP

In fact why not start with the legality of the European Communities Act 1972, when the UK joined the European Union and the impact of EEC and Council Regulation 2141/70, concerning the CFP (Common Fisheries Policy) which was only adopted on the morning of 30 June, the day the British application for membership was made and remained illegal for many years thereafter

In October 1971, Geoffrey Rippon, Britain’s chief negotiator stated ‘.. one thing is certain . . . we should not sign a Treaty of Accession which would commit us to the present fisheries policy..’

A number of Ministers at the time, made a similar statements and MPs voted on accession to the treaty during a debate in which the passage relating to fisheries was NOT published; so the debate was on flawed principles engineered by those who drew up the debate topic

During the first 22 years of its existence the CFP was completely illegal; according to the EEC's own laws and none of the Articles quoted in the treaty, numbers 7, 42, 43 and 235 mention fisheries

Article 38 is usually quoted as the source but was, in actual fact, left out of the regulation in the haste to draw it up

Finally, authorisation was retrospectively inserted into Article 3 of the Treaty of Maastricht many years later! - ergo: no-disclosure is surely definate grounds for a challenge on membership of the EEC

Therefore, if any such challenge on this matter was upheld and it was found that the UK should never have joined the EEC in the first place, then the BREXIT issues of today would surely be extinguished as they could not exist - 'cause & effect'!

Geoffrey Robertson QC 

'.. That’s what the Civil War was about – the right of parliament to stop the Crown doing things that weren’t in the national interest ..' 

However, quoting the National Interest introduces yet another facet - the voting public and a definition of National Interest

Apart from a few pockets, the majority of the population voted to leave the EU, however, in a great many cases their MP representatives in Parliament ignored the wishes of those they represented. Therefore we have a situation whereby the people voted one way and their MP's wanted something else

Where does the National Interest stand in this instance and who takes primacy – MP’s or voters?

Sovereignty

What was the net effect of the 1972 European Communities Act for UK Parliamentary Sovereignty?

This has already been answered and interpreted by UK courts as granting EU law primacy over domestic UK legislation

Therefore, if there was a conflict between an act of the British Parliament and EU law, Parliament would lose out and EU law would prevail. The European Court of Justice (ECJ) became in effect a Supreme Court of Europe, interpreting EU law with judgements that were binding on all member states

Based upon this concept of ‘EU law being granted primacy over domestic UK legislation’ one cannot include the concept of the Sovereignty of Parliament because it has already been relinquished by the 1972 European Communities Act. Until Parliament repeals the 1972 Act and takes back that part of its sovereignty that was lost to EU law, Parliament does not currently have absolute sovereignty because part of it has already been ceded to the EU

Therefore the Sovereignty of Parliament and the 1972 European Communities Act are by definition mutually exclusive 

Royal Prerogative

The Royal Prerogative has always contained powers relating to foreign affairs, which have historically involved the making of treaties at international level. Therefore the ability of the Government to ratify treaties remains a prerogative power, as does the power to amend or withdraw from treaties

However, obligations arising from international law treaties do not take effect at domestic level until Parliament chooses to incorporate all or part of the international law into the domestic sphere, which means a separation between between the two

The EU involves an international treaty and as such falls under the remit of the Royal Prerogative in isolation to separate domestic ratification though Parliament

Is the actual Article 50 an international event or a domestic one? Clearly without clouding the issue by introducing any subsequent 'knock-on' effect, Article 50 falls into the domain of international - ergo: subject to the Royal Prerogative and there can be no other interpretation

In any event, surely the whole point of the Royal Prerogative is that it is a body of customary authority, privilege, and immunity, recognised in the UK as the sole prerogative of the Sovereign and the source of many of the executive powers of the British government

This is especially so where it is recognised that the four major personal prerogative powers which are exercised by the monarch are:

  • The dissolution of Parliament
  • The appointment of the Prime Minister
  • The granting of the royal assent to legislation
  • The dismissal of government

This makes no sense in the context of the Royal Prerogative needing to be ceded by Parliament in this instance – it is already the default position (especially as Article 50 is an international event) and any restrictions needed to be specified at the time of the 2015 European Union Referendum Act.

The assumption of action was implicit when the 2015 European Union Referendum Act was passed - otherwise why bother to have a referendum if Parliament was not prepared to act on the results?

Therefore is it Dominic Chambers who is looking at it ‘.. from the wrong end of the telescope ..’ in his argument

By default Parliament has already ceded the necessary powers and it is up to Parliament to specifically restrict any powers it does not wish to cede – this was not done at the time in the 2015 European Union Referendum Act and one cannot revisit this matter retrospectively after the event because the results didn't go ones way

Arrogance of Dominic Chambers

‘..  Lord Carnwath suggests it would be strange if parliament expressed its will through a resolution but then there was still a need to go back to parliament for legislation to implement it.

Chambers suggests it might be “odd... to the man on the Clapham omnibus” but not to lawyers ..

What a staggering display of arrogance by Dominic Chambers

Surely the whole point of the legal system is to be seen to be fair and understandable by the ‘common man’ and any convoluted argument he puts forward that is impenetrable ‘.. to the man on the Clapham omnibus ..’ cannot possibly be seen to have these qualities

Can Dominic Chambers not understand that this is precisely what the whole thing is about in the first place ‘Elites’ v ‘man of the street’! and once the law and rulings become opaque or obscure the system has failed

David Scoffield QC – N Ireland

He seems to be on different wavelength to everyone else. Is this hearing really about the politics of triggering Article 50 or limited to the legal issues?

Ronan Lavery QC – N Ireland

‘..  It would be unconstitutional to withdraw from the EU without the consent of the people of the Northern Ireland ..’

Don’t be so ridiculous – there was a vote throughout the UK and a clear majority/mandate to follow a certain course of action. Which part of a clear majority does Ronan Lavery QC not understand

Or is he advocating that every settlement within the UK can individually elect to be in or out of the EU? - a flawed argument

Everyone now seems to getting in on the act, pursing their own agenda with little or no regard to the issues

James Wolfe QC – Lord advocate for the Scottish Government 

Scottish Government Stance

‘.. At a constitutional level leaving the EU would limit the competence of the Scottish parliament and the competence of the Scottish government, Wolfe argues ..’ 

Since rewinds over history seem to be in vogue:

  • What about the Darien Scheme (bailout) and the events leading up to the Act of Union - this leads to the heart of historic competence
  • With the benefit of hindsight, the Scottish referendum a couple of years ago could have ended in exactly the same way as the Darien Scheme, with yet another bailout by RUK because of falls in the oil price etc. However, all this seems to have been glossed over by Nicola Sturgeon and her cohorts who backed a potential disaster - this goes to demonstrate present day competence?

Therefore in the light of the two matters above why should there be an expectation of future competence when it has not been demonstrated in the past - and history is often demed to be a window on the future

Once again a participant not restricting their case to the absolute matter at hand – stick to the topic - legality

Lord Pannick QC

Lord Pannick QC seems to be a gun for hire, who potentially has no beliefs other those that he is paid for or where he has an interest coupled with a difficulty over disclosure!

We see in the Sunday Times (11 December 2016)

 

Sunday Times (11 December 2016): - Greens Pannick Stations Mocked

Now the select committee has fired back a salvo. Gabriel Moss QC, who advised the inquiry, has produced a 10-page note responding to Pannick’s report. Moss reckons Pannick’s opinion could not “accurately be described as ‘an independent review’ ” due to his personal connections, and that it was instead “a forceful legal and factual argument” on behalf of Green, 64, and his empire.

Moss goes on to say the committee was free to make a 'value judgment' on 'the question of moral blame'. He argues the rights and wrongs of Green’s behaviour 'cannot be answered simply by pointing to arid technicalities of company law'

 

This is the interesting and very telling paragraphs in his defence of Philip Green which give an insight into Lord Pannick modus operandii

‘.. He argues the rights and wrongs of Green’s behaviour “cannot be answered simply by pointing to arid technicalities of company law ..’

Furthermore:

'.. Cynics pointed out that Pannick, 60, had probably been handsomely remunerated for his work, and that he is friendly with Green associates such as Baroness Brady and Lord Grabiner — a fact that was strangely not disclosed until the 64th paragraph ..' - mmm !

Perhaps we should compare the previous statements to his current task of influencing the BREXIT result - after all so far as Lord Pannick is concerned the law would seem to be nothing but an inconvenience in getting his own way

Tags: , | Categories: European Union | UK Government