"For the reasons we have set out, we hold that the Secretary of State does not have power under the Crown's Prerogative to give notice pursuant to Article 50 of the TEU, for the United Kingdom to withdraw from the European Union."
The current problems associated with leaving the EU can be represented as a three-way tussle which is really nothing new. We have been here before. The three parties to the dispute are between the Executive and its Prerogative powers, the elected Parliament and the rest of Europe.
Since 1972 the United Kingdom (as it is now constituted) offered up some of its law-making, administrative and international sovereignty to a supra-national European body, to take advantage of trading benefits. We wanted to join the 'club' but never felt wholly comfortable in it. Although it started as a coal and steel partnership of just six countries, it was always fired by an anti-war socialist idealism and political union that we could never share.
It is rather amazing that even after more than forty years British isolationism and desire for independence has grown stronger than weaker. Recent economic instability centred around fraudulent banking has had an effect, as has the consequences of the fundamental principle of free movement of people.
But fears and reservations go far deeper to the demise of traditional industries such as fishing and mining and a general unaccountable bureaucracy of financial waste and mismanagement. Recent financial indicators, the parlous state of southern country economies, mass movements of refugees and a rocky Euro have all added to the unease.
Five hundred years ago another Rome-based institution dominated Europe for political and religious reasons England wrested itself from. But simultaneously a right royal battle was going on domestically between Crown and people as represented in parliament, as to who actually determined what was law and what the state should do.
Amazingly the present judgement referenced one from 1610! In that the then Lord Chief Justice, Edward Coke declared that, "the King (James I) by his proclamation or other ways cannot change any part of the Common Law or Statute Law, or the customs of the realm." Perhaps it is worth noting in passing, as did he at the ripe old age of eighty-two, his last words were reputed to be, "thy kingdome come, thye will be done. Learne, reader to live so, that thou may'st so die".
"Flying Buttress" or "Flying Bucket"?
This is a Flying Buttress.
This is a Flying Bucket!
From the London Times Diary we learn that at a recent Bratislava gathering of the great and the good, Foreign Secretary, Boris Johnson was called on to explain his understanding of "Brexit". With typical metaphorical flourish he chose to describe it as a "Flying Buttress", meaning presumably Britain would be exterior to the main structure but be supportive of it. Indeed to take the metaphor further, in the absence of the buttress, the building would surely collapse?
Unfortunately the translator, obviously ignorant of medieval building technique and of the term, and told the room that Boris thought Brexit would be a "Flying Bucket"!
The mind boggles as to the mental gymnastics that must have been employed by the assembled audience in order to try and make sense of the imagery. Perhaps they just put it down to his notorious, oblique humour? Perhaps they thought the flying bucket translated to, "Haven't got a clue how it's going to work out"?
We might add another aphorism that applies to the 52% to 48% 'leave' vote, on a turnout of 71.8% with more than 30 million people voting - namely, it has certainly "Thrown a spanner in the works."
There is no doubt the plebiscite result was legitimate and a majority of those that voted, did so to leave. It is also true that it was reasonably evenly balanced. Only 2% needed to change opinion for it to have been a dead heat. Further the clear age-related nature of the vote suggests that had 16+ cohort been allowed to vote, it would probably gone the other way.
Do we say that the future of the country was decided disproportionately by those with the least invested in it, or that age and wisdom prevailed? Was it a triumph of experience over hope or of nostalgia over reality?
Consequences for Government
Whatever view the nation takes or took, and no-one can disagree it is now deeply divided over the subject both inside Parliament and outside it.
Few can surely disagree with the notion that the Government has handled the subject appallingly, not only in the way it presented the facts and pitfalls of leaving, but in completely failing to plan for the possibility of a leave vote. As an example of political myopia, it is unequalled in modern times.
In domestic politics the consequences have been significant for personalities - the removal of Prime Minister, Chancellor of the Exchequer and Justice Minister, to name but three of many. In came the waspish "stay" Theresa May, who in a deft move immediately passes the 'poisoned chalice' to the most prominent 'Three Brexiteers' - Johnson, Davis and Fox, responsible respectively for the Foreign Office, Brexit and Trade. She might just have well said, "You got us into this mess. Now get us out of it!"
We are aware that public opinion is notoriously capricious, that three of the four composite countries (Scotland, Wales, N. Ireland) want to stay and the overall vote is fairly evenly balanced, so we now find ourselves in the position of determining that most ethereal concept of the "Will of the British People" and how to implement it.
Government Plans in Tatters
Mrs May speaking for the government states that 'Leave' is the 'irrevocable' direction of travel and that the 'Article 50' procedure will be 'triggered' not later than the end of March 2017 meaning we would be fully out two years later. Implicit in this plan was that the government could employ the Royal Prerogative to negotiate with the EU, without informing Parliament until it was a done deal. The High Court has decided that would be illegal, effectively requiring the Government to seek Parliamentary approval before it even triggers Article 50.
The recently made assurance as to the timetable is therefore already in tatters. The well-publicised legal challenge was upheld by the High Court. So now Mrs May not only has to jump all the political and practical hurdles listed above, but also - as the law currently stands - she cannot decide the matter unless Parliament - the final arbiter - agrees.
This applies not only the decision to leave in 2019 but the trigger to leave in 2017. In other words the process can not even start without Parliamentary approval.
Taking this a stage further, how can Parliament possibly approve a process, unless it knows what the consequences are? Meanwhile the EU will not start consultations until the Article 50 is triggered. Thus a classic "Catch 22" situation ensures the May's pledge cannot be fulfilled unless the (relatively new and US/EU-style) Supreme Court overturns the decision on appeal.
Unprecedentedly, all eleven Justices will be required for the appeal. Presumably there could be a six/five majority. It will take time before the issue can be decided and is likely to set back the Article 50 process by as much as a year, and thus extending the uncertainty into probably 2020 and another general election. Was this the intention of the legal challenge by a rather eclectic group of individuals with questionable connections!
Who Challenged the Government and Why?
One of the strange anomalies of the appeal, joyously flagged up by Mail and Telegraph, the people who saw fit to challenge the plans of the Prime Minister and Government were hardly 'typical' of the English population. The first claimant in the action was Gina Miller, an 'investment manager' for the firm 'SCM Private', which she co-founded in 2014. She used the services of a "dedicated team at (legal firm) Mishcon (de Reya)". Apparently both she and they have received considerable Internet abuse as a result, that they have announced they intend to pursue.
From Wikipedia we discover she was born in British Guiana (now Guyana) before moving to England, aged ten and that she is the daughter of the former Attorney General of Guyana. She obtained two degrees in management and marketing from the University of London and has been much involved it the support and promotion of good causes. (https://en.wikipedia.org/wiki/Gina_Miller)
From the Telegraph we learn she is, "The founder and chairman of Miller Philanthropy, which she launched with her husband Alan, the original “Mr Hedge Fund”, who made more than £30 million in the City. The couple also launched the True and Fair Campaign, aimed at cutting charges on ISAs and rooting out "dishonesty" in the financial services industry. She and her husband have been major contributors to the Margaret Thatcher infirmary at the Royal Hospital Chelsea, in addition to numerous small UK community charities and projects." (http://www.telegraph.co.uk/news/2016/10/13/who-is-gina-miller-the-woman-leading-the-brexit-legal-battle/)
Are we to rejoice in the fact that we must rely on such a person to uphold our democratic rights or regard it as something of an imposition? Do we see it as a genuinely advocating the supremacy of Parliament or merely an attempt to undermine the Brexit process and make things even more difficult for the government?
We are not clear what prompted the action or motivated this particular person to take it but it is reasonable to question what they were? Is she acting wholly from philanthropic reasons from her own volition or are there other elements and forces at work? Is she representing only herself or others unmentioned?
I suppose in a way we should be pleased that an 'ordinary member of the public', can in fact gain access to the High Court, challenge the Executive on such a fundamental issue and even win, but one cannot help being just a little cynical in the light of all the cases where justice has been withheld or denied to ordinary British people. It has been said that only the rich can afford justice now. Surely the fact her connections and money could not have been a factor in her own case?
But others were involved in the challenge: These include “The People’s Challenge”, featuring an Englishman of Bangladeshi origin; an Irishman; two Scotsmen resident in France; a Welshman and a Gibraltarian, whose wife is Spanish; another group of British expatriates; and British children of EU nationals and non-EU carers of British children or the disabled.
Hairdresser Deir Tozetti dos Santos is referred to as the second claimant. In a pre-trial hearing he was in fact the first claimant and was described by his lawyer as “just an ordinary guy”. (http://www.legalcheek.com/2016/07/brexit-legal-challenge-busiest-court-in-living-memory-hears-judges-say-case-will-be-heard-by-the-lord-chief-justice/) It appears at this earlier hearing it was agreed that Mrs Miller would replace him as lead claimant.
It is pertinent and appropriate to enquire in such a public matter who this gentleman is, what motivated him to oppose the governments intention to reflect the majority view, and if he was doing so at the behest of any others. If so who are they?
It is very difficult to discover any information about Mr Deir Tozetti who appears to be the main mover but who subsequently swapped places with Mrs Miller. What provoked the swap and was it merely that she would be more photogenic on camera?
A Google check for "Deir" brings up only this: https://en.wikipedia.org/wiki/Deir_Yassin_massacre - an early example of Zionist terrorism. Should we take this as an omen? Perhaps given his prominent role in this action, Mr Tozetti should make it clear whether or not he has any connection with either Jewish and/or Israeli interests?
Nevertheless the challenge was made and upheld so perhaps at least we should consider why. To do so we have to look back to times past, for it is the past that has shaped the British Constitution and enshrined its principles. Sadly knowledge about such things is drowned in popular culture and inadequately covered in the education syllabus. As a result there is considerable ignorance about such matters British public although there are signs things are on the change.
Who Decided the Issue?
The people that gave judgement on the matter were the best experienced and most senior legal minds in the land. They were: Lord Chief Justice Thomas, (most senior criminal law judge); Sir Terence Etherton, Master of the Rolls, (most senior civil law judge); and Lord Justice Sales, an Appeal Judge.
Lord Chief Justice, Lord Baron Thomas of Cwmgiedd, PC, QC
Sir Terence Michael Elkan Barnet Etherton MR
The Rt. Hon. Lord Justice Sales
Even so they have come in for considerable 'flak' from the media and 'blog-sphere', that has suggested the judges are intent on frustrating the demonstrated will of the people. This has led to demands that the 'Minister of Justice', Liz Truss, intervene to 'protect' them! Even they must find this somewhat amusing, given that she is neither physically or legally equipped to do so! (http://www.telegraph.co.uk/news/2016/11/05/tory-mps-and-ex--ministers-call-on-government-to-defend-judiciar/)
Indeed the fact that the Minister of Justice and Lord Chancellor is no longer required to have any qualifications in the law, in contrast to the long established principle - it being the only office of state that combined all three domains of legislature, judiciary and executive - rather demonstrates the inadequacy of current constitutional thinking typical of the Blair years but continued by this administration.
Justice Secretary Liz Truss is being urged to condemn attacks on the judiciary
One of the criticisms levelled at the three judges in question was that their backgrounds and inclinations tended to suggest they were pro-European, pro-Jewish, pro-gay, pro-socialist and most importantly opposed to referendum-decision-making. These claims are given a modicum of credibility by the respective public professional profiles. Any suggestion this in any way influenced their judgement is weak to say the least.
Lord Chief Justice Thomas, Baron Thomas of Cwmgiedd, PC, QC became a Lord Justice of Appeal and Privy Councillor in 2003 and Senior Presiding Judge from 2003 to 2006, during Tony Blair's time as Prime Minister. He was President of the European Network of Councils for the Judiciary from 2008 to 2010. He is one of the Founding Members of the European Law Institute, a non-profit organisation that conducts research, makes recommendations and provides practical guidance in the field of European legal development with a goal of enhancing the European legal integration. (https://en.wikipedia.org/wiki/John_Thomas,_Baron_Thomas_of_Cwmgiedd)
Sir Terence Etherton, Master of the Roles, was appointed in October this year. Previously appointed Lord Justice of Appeal in 2008 by Gordon Brown, then Prime Minister. He has held prominent positions in Mental Health Trusts from 1991 and was Chairman of Broadmore 1999-2001. He was married to his civil partner in a Reform Judaism wedding ceremony at West London Synagogue in 2014 where he is Senior Warden. (https://en.wikipedia.org/wiki/Terence_Etherton)
The Rt. Hon. Lord Justice Philip Sales. From Wikipedia we find the following: "Sales used to be a practising barrister at law chambers 11KBW, of which former Prime Minister Tony Blair was a member in his capacity as junior Counsel. At the time of the appointment, there was uproar over Sales' appointment. According to The Guardian, a source close to the case referred to 11KBW as a "network of old boys and cronies", and that there was "no coincidence that the appointment came from Lord Irvine's and Tony Blair's old chambers". Sales also defended the New Labour government's decision against holding a public inquiry into the Iraq War in the High Court in 2005."
All three studied law at University of Cambridge at different times.
Was the High Court Decision Anti-Democratic?
So the question remains, was the High Court's decision supportive of popular democracy and the will of the people demonstrated in a referendum or does it frustrate it? More narrowly was the opinion and decision of the three top judges an accurate interpretation of the Constitution and law of the land?
It is a truism of British constitutional law that only the Queen in Parliament (consisting of Monarch, Lords and Commons) can make, amend or repeal the law of the land. Clearly this basic principle had to be modified to admit the law making powers of the EU once we had joined up to this organisation. Even so in theory at least parliament had the final word as to whether EU legislation was implemented or not, a power that has been continuously eroded over the years.
The Judiciary is obligated to implement the law as it is written and/or intended. This requires interpretation of the Common Law and Statute to particular cases resulting either from civil dispute or criminal prosecution. Judges are also bound by precedent and the hierarchy of the courts in England and Wales. An analogous but separate system operates in Scotland and Northern Ireland.
So basically in theory at least only Parliament can make or remove law (it cannot bind itself) and only the Courts can interpret and apply it. Nevertheless in practice, judgements do in fact clarify and therefore create the meaning of the law which is always evolving organically. As a result a certain tension always exists between legislature and judiciary, as this latest case amply illustrates.
The Impact of International Treaties
To further complicate this picture, international treaty may give powers to supra-national entities that take precedence over domestic courts and justice system. The topic of TTIP is a current hot potato of course. (See: http://www.independent.co.uk/voices/comment/what-is-ttip-and-six-reasons-why-the-answer-should-scare-you-9779688.html)
We all remember a previous Master of the Roles, Lord Justice Denning's pronouncement on joining the EU in 1972 that from that moment on all domestic law was to become subservient to European Law, which of course has proved substantially correct. It still applies in relation to the European Court of Justice and the European Court of Human Rights, made under two quite distinct treaties.
We should be clear that even if we leave the EU we will still be signed up to the latter and incorporated into domestic law, unless as intended, the Government removes itself from that also - probably a much more worrying development.
So now all we (and the government) can do is await the appeal to the Supreme Court which should be interesting. No doubt before it some Treasury lawyers will be burning some midnight oil over the legal cases and civil servants in all the government departments concerned will be playing 'catch-up' on the implications of finally leaving the EU - if indeed we do!
- The full 32 page judgement can be located here: http://www.independent.co.uk/news/uk/politics/brexit-legal-challenge-statement-full-read-judgement-summary-high-court-theresa-may-article-50-a7395071.html)