Monday, November 07, 2016

Quote of the day 7th November 2016

"The first thing to say about ministers triggering Article 50 is that they are not doing it simply because leaving the EU is now government policy. They are doing it because this was the clear instruction of the British people in the referendum on 23 June."

"There is one and only one way in which a Member State may lawfully leave the European Union. That is by that state triggering Article 50. So the result on 23 June was a direct instruction that Article 50 be triggered, because it was a direct instruction that the UK should leave the EU."

"The second thing to say about this is that the British people were able to give ministers this clear instruction because – and only because – Parliament enacted a law that authorised the referendum to be held (the European Union Referendum Act 2015). It wasn’t government ministers that authorised the referendum: it was Parliament."

"My first problem with the High Court’s judgment is that it ignores all these facts. Indeed, the fact that ministers wish to trigger Article 50 early in 2017 because and only because they have been instructed to do so by the British people is overlooked in the judgment. This is a stark omission. Ministers’ exercise of the prerogative to trigger Article 50 is no ordinary executive act: it is an act ministers have been told to undertake in a referendum authorised by Act of Parliament."

"Anyone with any knowledge of my views of the relationship of prerogative to statutory power will know that I take no pleasure in the conclusion that the High Court is wrong. I am no lover of prerogative power. I would dearly like our constitution to provide that in the exercise of such momentous powers as the triggering of Article 50 UK ministers must first seek and obtain clear parliamentary authorisation (and not merely clear popular authorisation). But, whatever I would like our constitutional law to be is immaterial to what I think our constitutional law is. And, however much I may wish it were otherwise, I am of the view that it would be perfectly lawful for UK ministers to trigger Article 50 under the prerogative and that the High Court was mistaken to rule to the contrary on Thursday."

(Extracts from an article by Professor Adam Tomkins MSP, "Brexit, democracy and the rule of law.")


Jim said...

Whilst I can agree with Professor Adam Tomkins on the majority of his quote, I still don't see that the high court was mistaken.

To me it was the high courts sure fire way of "kicking it upstairs". Those 3 judges knew that there was not a snowball in hells chance that the government would not appeal a decision that went against it. So they knew if they ruled against the government this was a way to make 100% certain this case would find its way to the supreme court.

- before the hearing had even started there was a provision in place so that in the event of an appeal, this case could "bypass" the court of appeal, and go direct to the supreme court, and the supreme court had already penciled in 7th and 8th December to hear it.

All cases must be heard by the High court first, before the Supreme. Kind of like even a trial for Murder you go to magistrates court first, though they will just kick it right to the Crown Court.

Its the High Court saying "we are passing this one up".

Its a bit like when you call a company and get someone in a call centre, You ask a question that is not on the "FAQ" list, so the person in the call centre says "I will just ask my supervisor", well its kind of the same thing.

So lets discuss the outcome of this case when we have it, and that will be when we have the verdict - From the Supreme Court.

Chris Whiteside said...

Interesting view and you might be right. Nevertheless they made a legal argument and it is reasonable for people to explore both arguments for and against that argument.