A reader of my blog has written to me with an update about a case that I referred to her for her expert help some time ago. The appeal against draconian sanctions that she helped our mutual contact…
Source: Most jobseeker agreements ruled unlawful – and the DWP doesn’t care
Even those of us who question the notion of absolute parliamentary sovereignty (eg. whether it should trump the rule of law in extreme situations such as the abolition of judicial review) wholly subscribe to the view that parliament, not the executive, should make or unmake our domestic laws.
In the case of R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), therefore, it seems plain that that in principle the prerogative power should not displace the power of parliament to trigger our withdrawal from the European Union (“EU”). Yet some of our respected colleagues writing on this website contend otherwise, drawing for analogy upon areas as remote from the Miller context as double tax agreements and the decision to exile the inhabitants of the Chagos Islands. Others are seeking to throw doubt on the Divisional Court’s judgment in Miller by questioning one of the…
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When the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers. ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph. These were the crudest examples. Yet, for all that, they are representative of the Brexiteers’ critique. Had not the people spoken on 23 June and decided the issue by a majority in a referendum? How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?
For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise. That…
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Shortly after the referendum on 23 June, demands were made that continuing EU membership should now be considered by Parliament, with a view it seems to stop BREXIT happening, and to frustrate the will of the 17 million who voted to leave. Indeed, the Guardian carried an article only five days later on ‘How we can stop Brexit – lobby our MPs’ (29 June 2016), no doubt as inflammatory and unacceptable to the BREXITEERS as subsequent developments have been to the REMAINERS. Fearing that Parliament was being enlisted with an agenda to defeat the referendum result, it is not surprising that the BREXITEERS should wish to exclude Parliament from the process altogether.
Even better if they could find legal authority to implement the referendum result that would not require Parliament’s formal input until much later in the process. So we discover only 12 days after the referendum that ministers…
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The issues in Miller
In R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) judges had to decide, as a matter of law, on the constitutionally correct procedure for deciding whether and when to notify the President of the European Council that the UK intends to leave the EU, pursuant to Article 50 of the Treaty on European Union. This legal question is fraught with difficulty. The situation is unprecedented, so judges have to answer the question from constitutional first principles. Inevitably in such cases there is room for disagreement as to what the first principles are, and (more intractably) what weight each has as against the others in the particular circumstances of the case.
In Miller, the Divisional Court identified the principles as being (1) that the Queen in Parliament may make or unmake any law by way of an Act of…
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I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigat…
Source: Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer
I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”). However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from…
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The High Court judgment in Miller v Secretary of State for Exiting the European Union last Thursday made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. My view is that an appeal is unlikely to be successful, but on any view we must be prepared for that outcome. The Government and Opposition should consider the form of such an Act without delay. So far, there has been little discussion about what form such legislation might take. This post seeks to begin that discussion, suggesting form, content and conditions that neither challenge the result of the 23 June 2016 referendum nor the Government’s stated timelines for giving notice.
The Form of Legislation
Bringing forward the Great Repeal Bill and trying to pass it before 31 March 2017 would be an awful idea, because it would embroil the…
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On October 2, Theresa May set out plans for a ‘Great Repeal Bill’ to be included in the next Queen’s Speech. There is very little detail currently available, but it appears this Bill is intended to remove the European Communities Act (ECA) 1972 from the statute book following completion of the Brexit negotiations. It would also incorporate current applicable EU law into an Act of Parliament and then allow the government to decide if/when to repeal, amend or retain individual measures in the future, following Brexit.
It seems to be the intention to introduce this Bill into Parliament in 2017, but it will not come into force until after a Withdrawal Agreement is concluded and the UK has actually left the EU. It is not so unusual for Parliament to adopt legislation but specify an implementation date some time in the future. Some (John Redwood, for example) advocated changing UK…
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Well it’s my b’day today – no sleep again but plenty alcohol lol Now I’m trying to decide to I go to sleep or stay awake!!! Meeting friends for lunch so timing may be a little fine – don’t wanna disappoint ppl 😕 But genuinely feeling knackered
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