Article 50 Legal Challenge

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Offline the leveller

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Article 50 Legal Challenge
« on: October 16, 2016, 08:55:28 PM »
The main point is that we must leave by a reversal of the process of joining - rescinding the Treaties. And that was done (on joining) by Ministers alone acting under Crown prerogative. Douglas Hurd always said that Parliament cannot overturn treaties - he was right since they were signed under treaty law, not internal British law. Parliament can only - subsequently - put into UK law what the Treaties demand.

The revolting cynicism of these eurofascists (seeking to persuade the courts to overturn the will of the people) is in using today precisely the same arguments put to the courts by Ross McWhirter in 1972 when he argued that Crown prerogative Powers could not be used innovatively to change the British constitution and law making and therefore our EU membership was illegal.. He lost and we joined. Now those who defeated that argument want to use it to stop us leaving.

I am worried that most of those involved in the law and Government today were still schoolboys in 1972 and the early 90s when eg the Maastricht Treaty was signed.

As soon as the Treaties are rescinded the 1972 Act is irrelevant. Parliament - through the people as sovereigns - can then change any law forced on us in the past by the EU


Nick.  I agree entirely with your earlier post in which you assert that all the EU treaties were and remain invalid under clauses within the VCT, and I have argued this point for some time.

( Notably Rodney Atkinson on his Freenations site has long taken this position too and stated again recently - "As I have made clear in another article on Freenations, the whole relationship with the EU was concluded illegally and that could be used as an argument to leave immediately".)

  However, we now know that the government is intent on pursuing the Article 50 route and now faces a legal challenge from Mishcon de Reya law firm.  I believe the challenge will be thrown out of court and that there is no substantial legal force to their action.  As I understand their position it turns wholly on the single issue as to whether the government has the right to invoke Art.50 using the Royal Prerogative, and IMO on that issue alone the action will stand or fall. 

However, I think the following brief points are also relevant to the issue before the High Court at present:

In March 2004 the Public Administration Select Committee (PASC) published a report on  Royal Prerogative which noted that prerogative powers could be exercised without parliamentary approval (my emphasis) and that restrictions on Ministers’ prerogative powers were limited. The PASC report called for comprehensive legislation, which would require the Government to list the prerogative powers exercised by Ministers amongst other measures, and was accompanied by a draft Bill.

I did not  track every detail of what was a very comprehensive and thorough  review, but note that a 2009  published "Review of the Executive Royal Prerogative Powers: Final Report" issued by the M of J on all prerogative powers of the Crown, including that of foreign affairs and of powers to ratify treaties remains:

1. In the hands of the Prime Minister and ministers, and significantly :

2. "The Crown is not bound by statute save by express words or necessary implication". (my emphasis)

3.  There was no proposal to abolish or change the existing power of the Crown in relation to the all important area of foreign policy or  treaty making powers.

As I understand their position Mishcon & Co seek to argue that the Crown is bound by statute, and they quote the 1972 European Communities Act, and they further claim invoking Article 50   "would remove a large number of rights from our law, including those under the EU Charter of Fundamental Rights, without Parliamentary approval".  In effect I think they are saying that the Royal Prerogative is no longer applicable or relevant in the Brexit debate, or if it is then it must needs be subjected to the will of parliament.  A position which I find inexplicable in constitutional terms.

 I personally would argue further with John Bingley (as set out in his excellent paper "Unlawful Governance) that the whole period under which the UK Constitution was 'buried'  over four decades under EU jurisdiction was and is indeed "unlawful",  and that "the principles of our Constitution are fundamentally self-preserving and allow no provision for its dismantling, diminishment, or destruction. Are you familiar with JB's contribution in this paper?

My tentative responses to the case brought by Mishcon are in italics as below


Graham Wood



- The judicial review application raises an issue of constitutional importance concerning the limits of the powers of the executive branch of Government.

Indeed so, but the legal basis for the call for a judicial review is highly doubtful, and probably unprecedented in  modern times as it calls into question the treaty making powers of the Crown.

- The European Referendum Act 2015 was, as a matter of law, advisory. Nowhere in the 2015 Act does it specify the consequences that should follow from the referendum result.

The Act does not address the issue as to whether it was advisory or mandatory, but only relates to the mechanics and administration of the referendum.   The point therefore is irrelevant in legal terms. However, repeated statements by the Prime Minister and other government ministers made it abundantly  clear that in political terms the result of the referendum would be binding upon government and was therefore more than "advisory" in that the final decision about leaving or remaining in the EU was specifically and expressly given to the people.

- The Defendant states however that Parliament enacted the 2015 Act on "the clear understanding" that "the Government's policy" was to respect the outcome of the referendum. Government policy is not law, not least because Government policy may change.

It is correct that government policy at any time is not "law" unless and until such policy is translated into statute law by parliament, or by the Royal Prerogative.  It is of course true that government policy may change, but the declaration of the Prerogative once issued is not subject to change. Traditionally and for many centuries treaty making powers have been vested solely in the hands of the reigning Monarch and exclude interference by parliament.   

- An "understanding" as to how the Government would respond to the referendum result is not enough to give rise to prerogative powers.

That is an opinion, and once again begs the question as to who has the authority to make or rescind treaties.  As constitutionally parliament has never been given such treaty making powers then clearly the Royal Prerogative power exists for the Crown to assume.  The "understanding" that the government would endorse and act upon a decision made by the British public via the referendum was thoroughly debated in parliament itself  prior to the referendum and afterwards,  and further confirmed by government ministers' many public assurances to that effect.  The government even went to the length of sending its own booklet to every household in the UK further clarifying and repeating such an understanding.

- The Defendant argues that the Royal Prerogative can be applied in this case allowing the notification of Article 50 without consultation with Parliament.

- However prerogative powers may not validly be exercised where this would frustrate or substantially undermine rights and duties established by Acts of Parliament. They may also not be used to pre-empt the decision of Parliament on whether or not to continue with a statutory scheme. This principle was first established as long ago as 1610 by Sir Edward Coke.

The counter argument is that the invocation of Article 50 of the Lisbon Treaty in and of itself does not "frustrate or substantially undermine rights and duties" and is only a formal declaration of intent by government to depart from the European Union as the first and necessary step to implement the decision of the people to leave. All such rights and duties remain in place therefore and are guaranteed by the provisions of the 1972 European Communities Act until such a time as the Act is amended or repealed.

- The notification of Article 50 given by Royal Prerogative would frustrate or substantially undermine rights and duties established by the European Communities Act 1972. Parliament decided in the 1972 Act to make EU law a part of United Kingdom law and therefore only Parliament has the sovereign power to repeal the 1972 Act, should it wish to do so.

It is indeed a fact that the 1972 Act is a matter of internal law (separate entirely from an action to be taken on Article 50) and therefore subject to the will and decision of parliament.  As stated therefore such rights and duties remain in place whilst the '72 Act remains as statute law, and may indeed remain for a further two years during proposed negotiations with the EU under Article 50.  It follows that there can be no "undermining of rights and duties" during this period, and the argument in irrelevant in the wider context of  the UK's departure from the EU   

- The Article 50 notification by Royal Prerogative would remove a large number of rights from our law, including those under the EU Charter of Fundamental Rights, without Parliamentary approval. - The Great Repeal Act announced by Prime Minister May on 2 October would not preserve EU law rights in their entirety. Amongst those rights are ones which can only be conferred under EU not national law, not least EU Citizenship and the EU Charter of Fundamental Rights.

 It is claimed that "The Article 50 notification by Royal Prerogative would remove a large number of rights from our law". This is not the case as already stated, unless and until the ECA 1972 is amended or repealed.  It is a debateable matter as to whether parliament may decide to incorporate all EU law into domestic  law through an amendment to the Act so that such existing rights are protected until, and possibly well beyond the time that the UK leaves the EU. After that point all such laws could be progressively repealed or retained after parliamentary scrutiny.  It seems clear that the Great Repeal Act, whatever form it takes, would follow at some stage, not precede a formal notification to leave the EU via Article 50.  It should be obvious after that point  that all EU law would legally be subservient to UK  national law, and rulings from the European Courts rendered null and void.   (as for "EU citizenship"  - this has never been formally recognised by any British government and has defied all attempts at legal definition for decades)

 - In fact, the Great Repeal Act is no more than the statement of the existing and longstanding position which is that only Parliament can change an Act of Parliament.

- By committing to the Government doing just that before the end of March 2017, the Prime Minister is effectively on a collision course with the Courts by pre-empting the outcome of the case which is due to be concluded before the end of this year.

« Last Edit: October 16, 2016, 09:02:45 PM by the leveller »

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