IDS AND UNSTYMIED IGNORANCE!

It is worrying when a former party leader makes demonstrably false claims about the Supreme Court's judgement yesterday. He called (HERE) the court self appointed when it isn't and said it was telling parliament what to do when it didn't. He then suggested that there was a question about who had sovereignty judges or Parliament.

A solicitor writing on his own blog described ID'S unstymied ignorance and base stupidity.

This is typical of Duncan Smith. He seems to know nothing but pontificates on everything. His understanding of the EU is utterly lamentable. If he truly understood it he would be a Europhile!

LEGAL ISSUES MULTIPLY

Last week saw a number of developments on the legal front. Firstly, The People's Challenge reported that the government has attempted to get an early site of The Supreme Court's judgement but were rebuffed (HERE). It rather looks as if they are starting to panic. The excuse was that they wanted to put contingencies in place!  Amazing.

Then, in Ireland Jolyon Maughan QC (HERE) has released the "letter before action" which is the precursor to starting a legal challenge to get the ECJ to give a ruling on whether or not Article 50 can be revoked. This may mean we will get the chance to vote on the new settlement and reject it if we do not like it.

And finally, and again in Ireland but this time north of the border, the executive has collapsed with the resignation of Martin McGuiness and this has led to suggestions from NI politicians that Mrs May cannot trigger Article 50 until a new executive is in place (HERE). To do so, they say, would be illegal (HERE). New elections will almost certainly be required and this will take at least eight weeks, meaning Article 50 may be delayed by a few weeks or even months.

On top of this Mrs May is to set out the government's thinking on brexit next week and MPs are pressing her to set out her objectives on the single market and the customs union. If she hints that we are to leave one or both the pound is likely to come under increased pressure. She is in an impossible position. I wouldn't like to be her speech writer.

GOVT SAYS IT WILL LOSE LEGAL CHALLENGE

The government is apparently resigned to losing the legal challenge by 7 to 4 at The Supreme Court as reported by The Guardian (HERE). The only surprise is that four of the justices think the government's argument holds water.  We shall see when the verdict is announced.

IRISH COURTS TO BECOME INVOLVED?

There is an attempt to involve the ECJ via the Irish courts (HERE) which may be helpful if it succeeds. The legal bid is being crowdfunded (HERE) and it may make life that much more difficult for the mad brexiteers - let us hope it does.

You can check on the total in the link above. If it gets more serious I'll put a link on the sidebar.

LEGAL CHALLENGE UPDATE

Lawyers for the claimants have lodged their written submissions at the Supreme Court ready for the case to begin next week (5th). If you're interested you can see the case for The People's Challenge (HERE) and the written arguments for Miller/De Santos (HERE).

I assume we will also get to see the legal arguments for the Scottish and Irish governments and if so I'll post then here as an update.

Update 2nd Dec:

Scottish Govt case HERE
Welsh Govt case HERE

The Supreme Court website on this particular challenge is HERE.  The government is not confident of winning and have published a short bill (HERE) that they will try to rush through parliament in the event their appeal is rejected (as I strongly suggest it will).

LEGAL CHALLENGE LATEST

The Supreme Court sits next week to hear the government's appeal against the divisional court's findings October. There is an update on the People's Challenge website (HERE) and it seems god news. The government has "doubled down" and is not really present any new arguments but it remains to be seen what happens.

Meanwhile one legal expert thinks the government might lose 11-0 in the Supreme Court (HERE).

And in a note at the end of the update, lawyers acting for Gina Miller says the government is also likely to lose any legal challenge to the fact they don't intend to trigger Article 127 of the EEA Agreement and believe that leaving the EU automatically means we leave the EEA. If they're wrong and parliament is involved, they may not be able to get a majority to take us out of the single market.

What a mess it all is.

SUPREME COURT HEARING

The appeal to the challenge to the government's plan to invoke Article 50 using the royal prerogative is due in the Supreme Court in December but the challengers, in the form of Mr John Halford of Bindmans LLP have published a quick note (HERE) to update everyone on the latest position.

There are a couple of points to note. Firstly, the government, contrary to what some commentators were saying, will not argue that Article 50 can be revoked. This might have been difficult for Mrs May to have to admit because the more prominent leavers might have had apoplexy!.

More interestingly, Lawyers for Britain have asked if they can join the case (HERE) and help the government. This seems amazing to me since it was the attorney general himself who presented the case in the high court. It is not at all clear why they think they can help and what they will argue differently to the government. The court has not yet made a decision on this.

I note also, the Supreme Court hearing will be broadcast live.

DOMINIC GRIEVE SPEAKS UP FOR THE JUDGES

Dominic Grieve, the former Attorney General and a man who fearlessly speaks his mind, has written a piece in the Staggers (HERE).

He says:

Our membership of the EU is underpinned by statute law. Brexiters may dislike the fact that this ever happened, but this was sanctioned by the sovereign will of Parliament when it enacted the European Communities Act in 1972. It is for Parliament to undo it and even if the government had won the case it could not carry out its task without parliamentary support.

And also:

This episode illustrates the fact that the growing violence of language and paranoia that now seems to characterise so much of the discourse of supporters of Brexit has other roots. It is difficult to escape the conclusion that its prevalence is a reflection of the insecurity which is inherent when a referendum victory is in part based, to the knowledge of some of the victors, on a prospectus supported by deliberate untruths.

The shadow Brexit Secretary, Keir Starmer, a former DPP has spoke up for the judges (HERE).

SCOTS TO JOIN LEGAL ACTION

The Scottish government has announced it will join Miller et al in the challenge to Article 50 (HERE). The appeal is to be heard on 5th December (HERE).

However, The Telegraph reports (HERE) that Euro sceptic Conservative MPs are trying to organise a quick vote in Parliament to try and get around the appeal court hearing.  They seem to think a short motion authorising the government to invoke Article 50 at any time up to the end of march next year will be enough.  It will be interesting to see if this gets the support of the majority. I am sure the opposition will vote against and it only needs a few Conservative Europhiles to vote against to defeat it.

It will give some idea of the feeling inside the HoC.

David Davis has said he will share his thinking with the devolved governments (HERE) as some sort of sop.

MORE LEGAL ACTION POSSIBLE

The CPS is apparently considering a complaint that voters were misled by the Vote Leave and Leave.EU campaigns, in contravention of electoral law (HERE). The Electoral Administration Act of 2006, which made an attempt to mislead voters an offence of “undue influence” – although it has not been tested by the courts so far.

It looks like another headache for the leavers and a potential flashpoint.

THE HIGH COURT'S DECISION

The High Court's ruling last week is continuing to cause waves. 

The PM writing in The Telegraph , has said,”Parliament voted to put the decision about our membership of the EU in the hands of the British people”. But this is wrong. The referendum was advisory only as was made perfectly clear beforehand but more importantly, as the government has already conceded in court! 

Compare Mrs May's words with these taken from the court transcripts - 

“His counsel [David Davis, Secretary of State] made clear that (the SO’s) does not contend that the referendum Act 2015 supplies a statutory authority for the crown to give notice under Article 50”

But members of the government have continued to claim the decision has been made. Meanwhile Tory MPs were demanding the PM takes action against the newspapers (HERE) but when finally Liz Truss (Lord Chancellor) and then Theresa May spoke out (HERE) it was a bland statement offering no condemnation of the papers and actually supporting a free press!  The Bar Council are outraged (HERE).

Others say the judges are absolutely correct (HERE) and some people think the press has lost touch with reality (HERE) and I think they are right.  Nigel Farage is reported to be arranging a march of 100,000 people on the Supreme Court when it hears the appeal in December. We are entering dangerous times for our democracy.

Incidentally, Sky News are reporting the government is already drafting up a bill - presumably as an insurance policy in case their appeal to the supreme court fails (as I am sure it will) - see HERE

THE BREXIT NEWSPAPERS

There is a lot of vitriol and xxxxx reserved to those who won the High Court case, especially from the right wing press and the fervent Brexiteers.  Jacob Rees Mogg has finally flipped and says even if it takes a new election, a "purge" of Europhiles and a thousand new peers (HERE) brexit will be achieved!

The Telegraph says it is judges against the people (HERE). The Daily Mail talks about the "fury" over "out of touch" judges (HERE). The Sun says Mrs May must not let down 17m voters (HERE) - apparently the other 16m and the 14m or so who didn't vote can go to hell.  UKIP were warning about riots and a revolution (HERE) while Nigel Farage talks of betrayal (HERE).  Other talk of remoaners "last throw of the dice" (HERE).  Suzanne Evans and Douglas Carswell think the judges should be locked up or dismissed - like they do in Turkey or Zimbabwe and North Korea.

All of this is utterly disgraceful but horribly predictable. But there are voices of reason out there. Someone (HERE) says the supremacy of parliament is the whole idea of brexit! Elsewhere another writer says if you think the courts are interfering in democracy you don't understand how Britain works (HERE).  Will Gore in The Independent says the pro-brexit media has finally lost touch with reality (HERE).

Liz Truss the Lord Chancellor has finally come out in support of the judges after two days of silence and Mrs May is urged to do the same although she has said nothing yet (HERE).

And finally if brexiteers think this is the last throw of the dice I am afraid they are very much mistaken - it is only the first!

LAWYERS FOR BRITAIN

After last week's High Court ruling there has been a flurry of comment, mainly from outraged brexiteers about the courts "interfering" in a political process. Brexit Central posted a link to a website called lawyersforbritain (HERE) which criticised the judgement.

However, lawyers for Britain are wrong on at least two fundamental points. Firstly, they say the referendum result was binding  and that the royal prerogative is used in the Council of Ministers of the EU to vote for Regulations which then alter domestic law (HERE).  But I think last week's judgement answers both points.

It was common ground that the referendum was NOT binding with even the government conceding the vote had no statutory power at all.  And Regulations become effective in UK law after the use of the royal prerogative only because parliament has so willed it.

They also argue there is nothing in the 2008 European Union (Amendment) Act to say the prerogative could not be used but it did bring under parliamentary control any further changes to EU law. But last week the High Court accepted that parliament could not have intended to "switch on" EU law but leave it to the executive using an ancient prerogative to switch it off.  And a similar argument was used by the Attorney General that in the absence of a specific part of the original 1972 Act preventing the use of the prerogative, the government should be permitted to use it.

But the court decided that in domestic law (i.e. the 1972 Act), where it is not clear, it must be presumed only parliament retains the power to confer or deprive people of rights. Only in International law, which does not impact domestic law is the crown free to act using the prerogative.

LEGAL MISUNDERSTANDINGS

There is a lot of misunderstanding of yesterday's legal decision and a lot of vitriol towards the judges in the Mail (they are described as enemies of the people - very dangerous stuff).  David Davis and IDS were both on TV decrying the High Court and saying the people had made a decision.

But this is fundamentally wrong. The people were asked in an advisory referendum. No decision has been made yet and the whole purpose of the case was to decide who gets to make the decision. Is it parliament or is it the executive?  The court decided, quite rightly it must be parliament.

It would be a surprise if the Supreme Court were to disagree with the judgement.  Only parliament can take away rights give to us by parliament. If it were otherwise parliament itself would be irrelevant.

LEGAL BATTLE - FIRST HURDLE CLEARED

There was a spectacular victory at the High Court in London today (HERE) and (HERE) when the court agreed that parliament must give the approval before the government can trigger Article 50. BBC described it as a hammer blow against Theresa May's Brexit plan.

The government has said they will appeal the verdict, leapfrogging the Appeal Court and going directly to the Supreme Court in December (the 8th I think). If we succeed again, parliament must then be asked to provide a mandate to allow Article 50 to be started.  Brexiteers are protesting like mad but they (in their own words) should accept it and get on with it!  The Telegraph carry an article this afternoon saying the case should not have been brought (HERE) and even Daniel Hannan, usually such a campaigner for the sovereignty of parliament is talking about the "pomposity" of it.

It is hard for them to argue against it since it is simply making parliament sovereign, something they have all argued for - but only when parliament agrees with them!  I would say if they cannot accept it then they must accept the reverse position. If the government can take us out of Europe without parliament, then a future government can take us back in - without parliament.

It's a great day for democracy and the first time I can smile since June 24th. It is like El Alamein all over again, before it only defeats, afterwards only victories!

Prosper like never before.

Update:  David Davis and Theresa May both now seem to accept the decision (If the Supreme Court agrees) will mean primary legislation pass both houses. Baroness Wheatcroft was on Radio 4 this morning saying the March deadline is all but impossible now.  Mrs May has apparently already said the schedule remains as planned.

LEGAL CHALLENGE TO ART 50 - FAISAL ISLAM'S TAKE

It seems Faisal Islam, the Sky News reporter attended the high court hearing last week where the legal challenge to the triggering of Article 50 by the government was being heard.  He now thinks the decision will be close, having initially believed the judges would find in favour of the government, now he is not so sure (HERE):

What was thought of at first as a marginal case is now looking rather in the balance for the Government, with potentially huge significance for Brexit.

And:

The Lord Chief Justice said twice that [the government's] argument "baffled" him.

It is entirely plausible that the Government will lose this case, which might come as a shock to Westminster.

I think he is right and the significance will certainly be huge.

LEGAL CHALLENGE TO ARTICLE 50 BEGAN YESTERDAY

Reuters (HERE) are reporting the start of the legal challenge to the government's plan to use crown prerogative to trigger article 50. This is a crowd funded legal challenge and you can keep up to date with progress on the link in the side bar on this blog.

I believe the government is going to find it very hard to argue against giving parliament the right to vote on whether or not Article 50 is triggered. The legal arguments seem very sound to me and I think the courts will find in our favour.

The Guardian believe parliament should be heard (HERE).  If the government is wise it will allow a vote otherwise parliament could get very difficult to control. There is a big majority against leaving and while I don't believe they will block it, MPs should have a vote and make recommendations about which sort of Brexit they will support.

DOMINIC GRIEVE

In the debate yesterday Dominic Grieve MP, former attorney general had this to say about repealing EU law (my emphasis):

I have to say that, as a lawyer, I see the repeal process and our leaving as a legal nightmare, and one that will take up an endless amount of the House’s time, to the prejudice of many other priorities on which we should be focused. It undoubtedly impinges on the devolution settlements and competence. We have a duty to maintain legal certainty and the rule of law, which will be jeopardised in the process. There are private legal rights that are likely to be affected, some of which might lead to litigation and claims for compensation.

I am not a lawyer but I have a lot of respect for Mr Grieve and I wonder what it is that he expects?  If litigation does arise I can see Brexit rumbling on for years and years.

THE LEGAL CHALLENGE SET OUT

Bindmans's, acting on behalf of a few concerned citizens and paid through a crowd funding scheme, are trying to force the government to obtain a vote in parliament before triggering Article 50.  I think there are good grounds and these are set out in  a letter sent to the government in July.

Read the letter HERE

The case is due to start this week in the high court in London.

NOW JUNCKER IS BEING SUED!

British ex pats in Europe have launched a legal action against Jean Claude Juncker's presidential order blocking any early negotiations before Article 50 is triggered (HERE).

It looks like Brexit is going to be a bonanza for lawyers!