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Brexit does not mean Brexit

164429550-2e399bab-d396-45ab-88ce-f7acda47d73c“You may think that your democracy is based on the sovereignty of the people. It isn’t. You may think the use of a referendum changed the constitution. It didn’t” – John Warren unpacks the Brexit politics.

Brexit does not mean Brexit. The British public (both lawyers and non-lawyers: I am not a lawyer) may draw that conclusion from the High Court of Justice decision in London on 3rd November. The case also provides robust evidence that Theresa May’s claim that ‘Brexit means Brexit’ was, and is, meaningless; which either her Government already knew, or it should have known. The Government has powerful legal resources at its disposal, and the Conservative Party never, ever stops telling the British public that it (alone in the body politic) understands the British constitution; through some ethereal, near-miraculous wisdom peculiar to Toryism. The ‘Daily Telegraph’ (4th November) was still attempting to peddle this egregiously risible doctrine in an ill-thought leader, while simultaneously headlining “The Judges Versus the People” (presumably without conscious irony) as it sank towards the vulgar discourse standards of the ‘Daily Mail’.

Three of the most senior judges in the English legal system begged to differ, and found against the Government in a case that the Conservative Government very, very conspicuously failed effectively to defend. The over-hysterical critics of the legal decision should look first at the adequacy of the case the Government brought; there lies the guilt, which tellingly, if disastrously, was represented at court in person for the Government by the Attorney General. The Government therefore, has no excuse and nowhere to hide from its own comprehensive failure. The critics should first look closely at the substance of the Government’s case that the Attorney General selected so badly, and then chose so ineptly to defend. We may then consider why such a thoroughly perverse course of action was even attempted by the Government. I shall return to this later.

proxy-4First let us examine the judgement, rather than leave it to the dubious collection of vested interests that dominate British public discourse; which are invariably drawn from a rag-bag of ill-disposed media outlets, pre-disposed Conservative (or Neo-Conservative) politicians which most typically represent the Conservative Party’s indispensable paymasters’ vested interests; all existing exclusively to interpret every contentious issue on behalf of the British public, and to guide us unerringly towards a consensus understanding that will, in the event, rarely be in your, or for that matter in the public interest. If you do not wish your interests to be comprehensively filleted, spatchcocked and slowly cooked at leisure; and finally sliced and diced to serve as tasty morsels for someone much more powerful’s vested interest, it is best that you think for yourself.

Here is the judgement, and if you do not like my reading, read it for yourself here.

You may think that your democracy is based on the sovereignty of the people. It isn’t. You may think the use of a referendum changed the constitution. It didn’t. Our democracy is parliamentary; it is rooted in the sovereignty of Parliament. It is perhaps surprising that both Brexiteers and Unionists who have fought so bitterly over two referendums and three years (2014-16) to defend above all what they chose to emphasise was a British constitution founded exclusively on the sovereignty of Parliament; yet are now aggresively determined to abandon it wholesale and with immediate effect, for a conception of the ‘sovereignty of the people’ that they have resisted with equal, bitter antagonism through both referendums. These are indeed strange times.

Such a conception of ‘the sovereignty of the people’ that is now being promoted by the most improbable British advocates would, for example, conventionally require a written constitution. The first three words of the US Constitution (which is conceptually definitive in the Western political history of this tradition), are “We the people”: determining first in whose name the Constitution is written, establishing the terms in which this principle is best expressed, and finally defining whom it represents.

Returning to the British, Unionist conception of Parliamentary democracy we may now examine what question the High Court of Justice was called on to decide. This is not a matter of dispute.

“The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union” (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (a)4).

The Court Judgement makes clear that it is “agreed on all sides” that this is a justiciable question which it for the Courts to decide. The Judgement also makes clear that the Court “is only dealing with a pure question of law. Nothing we say has any bearing on the merits or demerits of a withdrawal by the United Kingdom from the European Union” (Miller v. Secretary of State Judgement; Introduction, (b)5). In the same paragraph the Judgement continues with a precise description of the nature of its legal ruling:

“The legal question is whether the executive government can use the Crown’s prerogative powers to give notice of withdrawal”.

The issue at stake is the use of Crown prerogative powers by the Executive Government to give notice of withdrawal from the EU (technically, Article 50). This is an issue essentially about the limits of power accessible to Executive Governments to exercise absolute authority, and not about the implementation of a referendum decision. It is the Conservative Government that deliberately chose to use Crown pregrogative powers to give notice of Article 50, and thereby by-pass Parliament. Effectively the purpose of this manoeuvre cannnot exclusively be a matter of using the only available method to give notice of withdrawal, because using Crown prerogative is not the only option open to Government to give the required notice, or to implement the Brexit decision. Such a claim is simply a canard trumped-up by interests who seek much more than the narrow Brexit decision itself, but complete control over your future, your liberties, and mine.

Why would the Government seek to use Crown Prerogative powers? Crown Prerogative is simply rather grand terminology for the Executive to take exclusively to itself, under special sets of circumstances, the absolute powers that in the British consitution are vested in Parliament alone. This is a matter of the dictatorship of the Executive, and it sets a dangerous precedent if it was sanctioned by the Courts.

The Judgement usefully summarises the agreed constitutional position:

“It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme. Parliament can, by enactment of primary legislation change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provsion to allow that to happen“ (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (b)20).

In order to cement this statement the Judgement provides precedent and authorities, including among the precedents Burmah Oil v. Lord Advocate (1965), and the authorities Sir Edward Coke, ‘The Case of Proclomations’ (1610), not long after the Union of the Crowns. But the first authority to which the Judgement appeals is Dicey, “still the leading account”; who argued that, in the Judgement’s words “Parliamentary sovereignty means that Parliament has”:

“the right to make or unmake any law whatever; and further, that no person or body is recognised by law … as having a right to override or set aside the legislation of Parliament” (Quotation from AV Dicey, ‘An Introduction to the Law of the Constitution’, 1915: 8th edition, Ch.1, p.38).

The Judgement goes on to quote Dicey further, where he makes it abundantly clear that:

“The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors” (Dicey, pp.57 and 72).

Where then does the Crown prerogative intrude into the untrammeled and absolute power of Parliament to represent alone the ‘Crown in Parliament’? The Judgement states:

“…. as a general rule, applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; Introduction, (d)30).

While this applies to international relations, the judgement makes clear that:

“An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers” .… “The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised” (High Court of Justice: Miller v. Secretary of State Judgement;(c)25. The precedent quoted in the Judgement is Burmah Oil v. Lord Advocate (1965); (c)24).

The Judgement goes on immediately to emphasise that:

“This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom” (High Court of Justice: Miller v. Secretary of State Judgement; (c)26).

Notice that the Judgement is more down-to-earth than the ethrereal vapidity in which Conservatives (the ‘Daily Telegraph’, or perhaps Jacob Rees-Mogg are exemplars) only too readily wrap the concept of the ‘Crown-in-Parliament’ in a heady, self-intoxicating, narcissitic stew: in Dicey’s terms the Crown simple represents absolute power; and in the High Court of Justice’s terms the Crown IS the executive government, whenever the Executive borrows Crown prerogative powers from Parliament; where, otherwise sovereignty permanently resides. The cold, hard matter at the bottom of this debate is who is entitled to exercise absolute power in the British constitution. Whatever Brexiteers suddenly, and totally out of character, now wish the public to believe; the ‘sovereignty of the people’ does not register on the Brexiteer menu, save solely to usher absolute power into the hands of a Brexiteer Executive. The question at stake is only whether the Courts would allow the Conservatives to accomplish this dangerous and essentially piratical raid on the British constitution.

More important here, the Judgement crucially emphasises that The Crown “cannot change domestic law by any exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (e)32; reinforcing the point raise by the Judgement in (c)25).

The stark problem for the Conservative Government attempting to exercise Crown prerogative powers over giving notice of EU withdrawal, is that in issuing Article 50 there are, beyond any argument, serious implications for domestic law.This is not an abstruse matter of arcane constitutional law, of interest only to Jurists; nor an issue of small moment: it potentially affects everyone in Britain. It is, therefore a well established principle of the working constitution, and it is no small matter.

There is a direct link between the creation of EU law in the appropriate EU Treaties, and British domestic law (High Court of Justice: Miller v. Secretary of State Judgement; (e)32; reinforcing the point made by the Judgement in (c)25). The EU Treaties could only have effect on domestic law through Parliamentary enactment (the exercise of Parliamentary sovereignty): in this case through the key European Community Act (ECA) 1972; which has been termed a ‘constitutional statute’ because of its profound effect on the daily lives of the British people.

In what the Judgement describes as the “nub” of the Government’s argument, which rests on its interpretation of ECA (1972), and particularly section 2(1) of that Act; the Secretary of State contended that EU rights were:

“ …. defined by reference to the EU Treaties. This means that Parliament intended for there to be a contunuing condition for the existence of any EU rights to be given effect in domestic law under section 2(1), in the shape of the continued membership of the European Union on the part of the United Kingdom; and that whether that condition is satisfied or not was intended by Parliament to depend entirely upon the action of the Crown on the plane of international law” (High Court of Justice: Miller v. Secretary of State Judgement; (a)77).

In this case EU rights would be subject to “removal by executive action on the plane of international law through the use of the Crown’s prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (a)78).

The Court’s decision, which ruled against the Government interpretation of the law on this issue, rested on the two principles discussed above:

1. The Crown “cannot use its prerogative powers to alter domestic law”
2. The Crown’s “prerogative powers operates only on the international plane”.

The Court ruled that “Parliament intended EU rights to have effect in domestic law” and “Parliament also intended that British citizens should have the category (ii) rights [ECA 1972] and that, likewise, they should not be capable of being undone by the Crown by exercise of its prerogative powers” (High Court of Justice: Miller v. Secretary of State Judgement; (e)94). The finer details of the technical legal arguments may be reviewed by readers in the Judgement, paras.,79-94. In the words of the Judgement:

“The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law” (High Court of Justice: Miller v. Secretary of State Judgement; (e)93, sub-para.,8).

Finally, notice here that Parliament (and the Courts) stand as the defender of the citizen against the exercise of absolute power by the Executive.

On the (principal) action that the Claimants brought against the Government, to the effect that

“the Crown could not change domestic law an nullify rights under the law unless Parliament had conferred upon the Crown authority to do so either expressly or by necessary implication by an Act of Parliament. The ECA 1972, in their submission, contained no such authority” (High Court of Justice: Miller v. Secretary of State Judgement; (f)95).

The Courts agreed with the Claimants primary submission, and decisively, that “the Crown cannot give notice under Article 50(2)” (High Court of Justice: Miller v. Secretary of State Judgement; (f)96).

The Court’s Judgement was less a decision against the Government, than a rout; with the Attorney General at the head of the flight. Within the careful wording of the Law Lords, we find the following insights into the scale of the defeat: the Court refers to the Secretary of State’s submission being “flawed” at a “basic level” (para., (b)85); the Secretary of State “goes too far” (para., (a)81); the Secretary of State’s submission “glossed over an important aspect” of the interpretation of ECA 1972 (para.,(b) 84); the Secretary of State’s submission “left out part of the relevant constitutional background”, indeed “It was omitted” in spite of his submission making recourse to the omitted approach a “keystone” of his submission (para.,(b) 84); the Secretary of State’s submission “gave no value to the usual constitutional principle” that the Crown “should not have power to vary the law of the land by the exercise of its prerogative powers” (para., (b)84); the Secretary of State’s case is “substantially undermined in a case such as this, where [he] is maintaining that he can through the exercise of the Crown’s prerogative bring about major changes in domestic law” (para., (d)89); the decision in ‘ex. p. Rees-Mogg’ “on which the Secretary of State sought to place considerable weight, does not provide guidance in the present case” (para.,(d)89); within detailed analysis of the provisions of ECA 1972 there is a long list of examples in which the Secretary of State’s interpretation is exposed to “inconsistent” reading, not once but twice (in sub-para., (1) and (4)), in which the implementation of the relevant “Treaties” (section 2), “refutes the Secretary of State’s own textual argument on section 2(1)”, and “There is nothing in the constitutional background to warrant reading the words in that way” (para.,(e)93); further on ECA 1972, section 2(2) the judgement concludes that “On the Secretary of State’s argument, this [section 2(2)]…. …. would make little sense if Parliament had intended that the ECA 1972 should be interpreted as the Secretary of State intends” (para., (e)93).

316709BF00000578-3461844-image-a-6_1456312670977This was a disastrous submission and raises the question what the Government thought it was doing. The weight of evidence suggests there is not much prospect of the Government overturning such an overwhelming decision in the Supreme Court. What is even more extraordinary was the speed with which the Government stated that it would appeal the verdict to the Supreme Court; before the Government could conceivably have given mature reflection on the ruling, or the scale of the Government legal failure. It may have been more appropriate if the Attorney General had first considered his own position (as some critics surmised – there were critics who were astonished that the Attorney General undertook to lead the case, against a formidable barrister representing the claimants, and which merely suggested yet another bad judgement within Government); or more importantly, the Government itself and Theresa May should have very seriously ‘considered their positions’ given the scale of this defaet for a Government now notable for failure, blunders and bad judgement.

Put simply, the Government has demonstrated, beyond peradventure, that it does not understand the British constitution; nor does it seem to care. Presumably it is too intent on ruling by decree and turning Britain into a redoubt of Executive absolutism, given only the opportunism presented by unfolding political events in the wake of a contentious referendum. But of course, at its very heart this profound instinct for absolutism is Toryism incarnate.

The background to Brexit and the status of this Government is not as it appears. David Cameron’s Conservative Government lost the referendum. The honourable response to a catastrophic failure, at least on such a scale, and in the central plank of the Government’s policy, would be to resign and call a General Election. Such a defeat suffered by any Government provides the clearest conceivable evidence that it no longer has any mandate to govern.

Instead, the Conservative Party clung to a devious manipulation of political fair-dealing in order to present a neat false-binary option to the British public throughout the referendum campaign: two faces. The Conservative Party effectively represented the leaders (David Cameron on one side; Johnson and Gove on the other) of both sides of the Referendum campaign. Wherever you looked; Brexit or Remain; there were the Conservatives leading the campaign. The Conservative Party fought a campaign it did not intend to lose, whatever the British people chose. Heads, they win; tails, you lose.

Following the result of the Referendum in favour of Brexit, a few token sacrifices at the top of the Conservative Party and Government were made (for the superficial appearance of decency); Cameron resigned, and failing the capacity of Johnson and Gove to mount anything more convincing than headlong flight into the long grass (to emerge later almost unscathed and within the ‘fold’), Theresa May, a senior member of the failed Government was promoted (Crowned following a disingenuous ‘election’, which was the only ‘election’ the British electorate would be allowed). Theresa May became Prime Minister for being a key contributor to a failed Government. This is politics; it certainly works in our Parliamentary system, for there they are, and there they remain, no matter what: but Theresa May and the Government are in no position to lecture anyone about the nature of ‘democracy’. They plead the ‘Crown prerogative’ over whatever they can railroad through without the inconvenience of Parliamentary scrutiny.

May and her Government have made much of the need for the Crown prerogative in issuing Article 50, because Parliamentary scrutiny would ‘reveal their hand’ to the Europeans; as if this was a ruthless business negotiation in which the principle purpose was to disadvantage as many people as possible in pursuit of profit.This is, of course, a ‘red herring’. The absurd lengths to which the Government has sought to protect secrecy has two principal purposes.

First, the Crown prerogative is being used to hide the extent to which the sheer scale and complexity of the legal, political, economic and social consequences of Brexit is far beyond the normal resources and capacity of this or any Government (in its widest sense), and far beyond the administrative, management and statesmanship talents of this particular, notably low-grade Conservative Government.

Second, the Crown prerogative is being used as a screen to achieve whatever solution for Brexit that the Conservative Government decrees (I choose the word carefully). This is absolutism; to provide the Government with the maximum freedom to set an agenda to change radically the whole shape of rights and responsibilities of all the British peple within Britain, on the basis of a philosophically hard-right, neo-conservative agenda; and without let or hindrance from either Parliament or people.

The Government wishes the capacity to introduce a political programme that goes further, deeper and more comprehensively into peoples lives, rights and prospects than anyone could rationally claim was contained in a simple binary ‘Yes/No’ referendum question; a bald question about continued membership of the EU, or not. The government is appealing to the Crown prerogative in order to keep its decisions on the detailed nature of the implications of Brexit a secret: a secret, not from Europe, but from the British people. The fact that they still do not know what they want to do is no bar to the scale of the Conservative Government’s ambition to access untrammeled power: indeed they appear to believe it is theri ‘right’. When Theresa May says “Brexit means Brexit” she does not mean the tautologous “Brexit means Brexit”; she means “Brexit means Brexit, whatever the Conservative Government chooses to negotiate the meaning of Brexit, without recourse to Parliament or people”.

I wrote above that the prospects for the Government were not high that it could overturn the High Court of Justice ruling, on appeal to the Supreme Court. What arguments could they advance? As I also pointed out, I am not a lawyer so I am scarcely resourced to offer an interesting, still less authoritative opinion. In these extraordinary times, I would however wish to advance one strange, unsettling line of attack that may have some adhesive properties. I was put in mind of it by the statement made by a distinguished Scottish judge who served the European Court of Justice, Sir David Edwards. He explained to the House of Lords European Committee ‘The Process of withdrawing from the European Union’ that:

“It is absolutely clear that you cannot be forced to go through with [withdrawal from the EU] if you do not want to: for example, if there is a change of Government” (HL Paper 138, 4th May, : Ch.1.10, p.4-5)

Sir David Edwards was supported in the interpretation by Professor Derrick Wyatt, Emeritus Professor of Law, Oxford University who indeed supplied further legal analysis (HL Paper 138: Ch.1.10, p.5).

It seems clear that the key difficulty for the Government exercising Crown prerogative is that in giving notice of withdrawal from the EU through Article 50 (which initiates the opportunity to introduce Crown prerogative), i.e., once notice is given of Article 50 the process of withdrawal takes over and Britain inevitably leaves the EU. The implications for domestic law in the UK become real and manifest, and the Government is disbarred from resort to Crown prerogative power.

However, if Sir David Edwards is correct, and there is little reason to doubt his or Professor Wyatt’s opinions, then giving notice of Article 50 would not, in itself, mean that all the other consequences flow; the implications for domestic law may not be realised; because Article 50 could then be withdrawn. If Article 50 does not automatically lead to the UK leaving the EU, and domestic law is not affected, then the negotiations presumably remain entirely on the ‘international plane’, and the Government may indeed apply Crown prerogative (or there may be a ‘prima facie’ case to be made). It does not seem to be an issue on which the High Court of Justice ruled (I did not spot it), presumably because the Claimants did not raise it, and the Government could not raise it; because the Government has committed isself to giving notice of Article 50 on the understanding it cannot be withdrawn; or to put it in simpler terms, the government has been hoist by its own petard.

This raises a nice conundrum: if this argument has merit (I do not claim to know), the Government could indeed operate with Crown prerogative, in secrecy and out of sight of Parliament and people; only to do so, it would have to give notice of Article 50 on the understanding that it could be withdrawn at any time before Britain exited the EU. In other words:

“Brexit does not mean Brexit”.

Comments (37)

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  1. Alistair Livingston says:

    Constitutionally then, we are still stuck in the seventeenth century when the problem of the ‘Royal prerogative’ was first fought over.

  2. c rober says:

    Seems like a precedence to me for Holyrood to declare next years council elections as a mandate for INDY by voting SNP – thus the sovereignty of the people in action?

    1. Frank says:

      The SNP will use their victory in next years council elections to pass on the worst cuts in a generation to local government. Parcel o rogues if you ask me…

      1. c rober says:

        Cant argue with you on that one , i still have a beleif that council tax freeze was a ploy to dishearten labour councillors being elected on deliberately restricting supply – then riding in on a white horse with a big bag of grants.

        But if the end justifies the long term means….

  3. Robin Kinross says:

    Yes. The High Court judgement has the great virtue of showing the true nature of the British constitution – in real time and up-to-the-minute. I learned all this years ago, from Tom Nairn, Neal Ascherson, Anthony Barnett, and other New Leftish writers, but it’s good (and depressing) to have it demonstrated so vividly.

    Ways to change the British constitution? Becoming part of the EU has been one way. Replacing the monarchy with an elected head of state would be another. The best way now will be independence for Scotland, in whatever way this can be achieved – perhaps quite slowly and undramatically (staying in the EU while England leaves, etc).

  4. Crubag says:

    It’s academic. The rEU has moved on and are now just looking at the clock and tapping their toes.

    There will be nothing substantive for UK parliament to vote on, as formal negotiations won’t start until notice is given.

    1. John S Warren says:

      Forgive me, but I do not understand your point. Under the terms of the Court ruling notice cannot be given until Parliament has scrutinised it:

      “the Crown cannot give notice under Article 50(2)” using Crown Prerogative (see articel above and the Judgement). Parliament will require to be consulted first.

      1. Crubag says:

        I’m saying it doesn’t matter when we give notice, we’re not part of the rEU future. All that’s left is tidying up the loose ends.

        The rEU have made their adjustment and are already meeting to plan the way ahead – without us.

        1. John S Warren says:

          Given the amount of everyone in Scotland’s (and UK’s) rights and liberties are tied up intrinsically in EU law (which this Judgement implicitly reveals), whatever this amounts to: it is not a “loose end”.

          The ramifications for absolutely everyone here, in almost every area of life, are vast and virtually endless.

          1. Crubag says:

            The rEU is meeting to discuss post-Brexit EU in December, and again in January. We (UK or Scotland) are not invited.

            I suppose UK parliament could have a vote of confidence on it, elections, then Article 50. But the result would ne the same, just drlayed and with a bigger Tory majority.

            Sturgeon could go for indy2 now, but that would be opportunism rather than principle – which would have been to go straight away. I think the numbers just don’t add up for the SNP, the EU is too umpopular.

  5. Blair paterson says:

    The law used by the 3 judges was passed in 1604 13years before the act of union so I would think their judgement can only apply to England only ?

    1. John S Warren says:

      The Judgement says this:

      “The law we were taken to was primarily the law of England and Wales, with some reference to the position in the other jurisdictions in the United Kingdom, Scotland and Northern Ireland. Although the court only has juridiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown’s prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic” (para., (a)19).

      On this basis the court referrred therafter to “UK constitutional law”. It is worth pointing out that there was a QC who represented “Scotland under the Act of Union 1707 and the impact of devolution”. Counsel for the Lord Advocate of Scotland was also present, but played no part (para., (c)7).

      Whether this is satisfactory or not would be for a Court (the Supreme Court?) to decide.

      This is an important Judgement. May I suggest that readers take a little time to read it for themselves.

      1. c rober says:

        One could also take from this that Westminster has no right over the decision of Scotland remaining or leaving the EU – but has none of the SNP and the many lawyers they empoer with wealth creation not also somehow noticed this?

        This is a constitutional fustercluck for Westminster – in that my theory of using the Council elections to confirm the sovereignty of Scotland can and should be done by standing on a mandate by the SNP of independence – then declaring a UKREXIT date soon after by Holyrood.

        No need for permission , as English law does not apply in Scotland – as I have said nearly my whole life , due to the protection of the Scottish legal system from the act of union itself.

        The simple fact that there is to be no Scottish contingent from Holyrood during brexit negotiations will also mean that Nic was in fact correct in the veto – that is if this is upheld in the supreme court. Then its onward to the European court – which is above the supreme court – for the time being.

  6. Eleanor Ferguson says:

    I just cannot understand how a whole country can be forced to leave the EU when leaving would cause such harm to it. To an ordinary person like me, it just doesn’t make any sense.
    I asked someone today why she voted to leave and she said it was a protest vote- but couldn’t say what she was protesting about. I wonder how many people just blindly jumped on the same band waggon without thinking it through.

    1. c rober says:

      The protest vote was against the eu , as the blamehound for Westminster long term failures – but like a Trump voter obviously two prescriptions are needed , one of mental illness and the other for a very thick pair of untinted glasses in order to see beyond the bullshit they are fed that a billionaire will be removing the wealth of millionaires and dispersing it.

  7. Alan Crocket says:

    In deciding that the EU referendum was merely advisory and that only parliament can authorize an Article 50 notification, the English High Court overlooks an essential fact. Parliament may have been told that it was only advisory, but the people certainly weren’t. We were told, every one of us, repeatedly and expressly, that the government would implement the result. Consider the very words of the government pamphlet, delivered to every house in the land:

    “It’s your opportunity to decide if the UK remains in the European Union.”
    “The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union.”
    “This is your decision. The government will implement what you decide.”

    Put into legal language, that is telling the public that the government did indeed have the prerogative power to issue the notice, and had bound itself to do so if that was the result. On those assurances, parliament did not lift a finger to disabuse us. It knowingly acquiesced in inducing the people to believe that the power lay with the government, and cannot now claim a right which it thereby surrendered. That is the crucial point, but the High Court does not even mention it, and it will now be for the Supreme Court to amend that glaring oversight, and rule that as far as the Article 50 notice is concerned, parliament can get stuffed.

    1. John S Warren says:

      Whether or not Parliament “knowingly acquiesced” or not, I would hazard the speculation that under the constitution, Parliament may change its mind whenever it likes. This is the essence of sovereignty, perhaps especially where there is no written constitution.

      The Supreme Court will, of course have the final decision, but I must confess to some doubt that your “crucial point” is necessarily a crucial point – in law. Perhaps you have a legal principle or precedent, to provide us with a definitive source for your crucial point that may help your case?

      1. Alan Crocket says:

        The point is that the court could and should have applied the law to the facts of this case, and that if it had done, it would have held that this particular referendum could not be regarded as merely advisory.

        1. John S Warren says:

          Both the Claimant’s and the Government’s case specifically referred to the Referendum Act 2015. The Government argued that although the Act did not confer statutory powers on the Secretary of State, the fact that the Act was “silent on the issue” supported the contention that “Parliament accepted the continuation of prerogative powers” (para., (d)1,76,(7)).

          This was taken into account in the Judgement, which stated that the Referendum 2015 Act “was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only” (para., (8,) 108:. See also (8) 105-108).

          If the Government wished to exercise prerogative powers it could have done so by passing legislation in Parliament that allowed it do so. The Government catastrophically failed to do so and indeed has therefore badly misled both the public and Parliament; first by telling Parliament it was an advisory referendum (when it did not intend it to be so – if in fact that is true); then, after the event (remember the Government lost the referendum) it cynically attempted to adopt Crown prerogative powers it did not have so that the public did not realise it had mishandled the legislation badly. Presumably because if it had been candid the public may have wondered why the whole wretched crew had not resigned.

          The Government, in confusion or incompetence or mere self-interest, has thus completely misled everyone, including, it seems, yourself. The problem is entirely the responsiblity of Government, and it has acted with craven disregard for candour in trying to steer attention towards tha Courts; which is an outrageous disgrace. It defended a bad execution of policy with a hapless defence of its blunder in Court.

          Your problem is not with the Court. Your problem is with the Conservative Government. I suggest that you take it up with them.

          Meanwhile, may I respectfully suggest that you read the Judgement.

          1. Alan Crocket says:

            I read the judgement when it first appeared, and again later. I have no quibble with its description of the strict law, and if that was all there was to it, fair enough. But it’s not all. The issue is not what took place between government and parliament, but what took place between them and the people. Parliament knew fine well that the referendum was being put to the people as mandatory, and could easily have corrected that. It chose to do nothing. The court’s statement that express wording is required to make a referendum mandatory is an abstract statement of the strict law, not as applied to any particular set of circumstances. It did not even consider the question of what happens when parliament actually allows the public to be told it’s mandatory, as here. If the judges had asked themselves that question, what would the answer have been? We don’t know. My view is that if the Supreme Court addresses it, the answer will be that in those circumstances, the referendum was mandatory.

    2. John S Warren says:

      You have criticised the Courts and Parliament as responsible for your stated problem; but it seems fairly clear and obvious that the responsibility lies entirely with the Government that brought forward the legislation, led (both sides of) the referendum, used the Crown prerogative, and were defeated in Court. Why you choose to critique everyone but the people resonsible for the mess, I cannot hazard a guess; but there is clearly little more to be said on the matter, certainly by me.

      1. Alan Crocket says:

        OK. I was keeping strictly to an exposition of why I think the court got it wrong here, though it does take some effort to avoid extraneous criticism of the whole Westminster fright show.

    3. John S Warren says:

      One final point of clarification. The Court did not say that “express wording is required to make a referendum mandatory”. As I pointed out above the Courts made quite clear that Referendum 2015 Act “was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only” (para., (8,) 108″.

      The obligation to ensure the correct legislation is passed and the policy is usable falls wholly on the Government: nobody else. The failed. Take it up with thwm. I can say no more on the matter.

      1. Alan Crocket says:

        Quoting from the judgement: “A referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act.”
        I make no comment on what the government and parliament said to each other. My point is entirely about what they said to us, the people. By leaving that out of account, the court fell into error.

        1. John S Warren says:

          I set a very bad precedent for myself by returning to this.

          Nevertheless the Government’s legislation (and its own untenable defence) depended on being “silent”, not “clear language”. This is the Government’s legislation. It is not an accident that the government drafted the legislation as it did, and steered it through Parliament as it did using its majority. It wished to manipulate Parliament and people; the Conservative Party was split asunder and only solved the problem by leading both sides of the referendum campaign. What was said to the people was largely their argument, on both sides. This was a Conservative referendum: the whole show (and it was a ‘show’).

          The failure is entirely the responsibility of the Conservative Government. Your argument is going to increasingly absurd lengths in order to avoid the facts – both in law and the politics. What you are advocating as a rule of law – is power without responsibility; any responsibility at all. It is unsustainable.

          1. Alan Crocket says:

            Fair enough. I’m not denying that the politics are grotesque, just not discussing them, because as far as the court case is concerned they’re neither here nor there. Government by its action and parliament by its inaction were both responsible for running a referendum which the people were told was mandatory. I think that is a compelling fact, but it is one which did not even occur to the English High Court. If it had, might it have come to a different decision?

  8. Alf Baird says:

    “Crown “cannot change domestic law by any exercise of its prerogative powers”

    Could this judgement similarly apply to EVEL? Maybe the SNP group could take that to court? (It would give them something to do.)

    1. John S Warren says:

      I am not in a position to speculate on whether EVEL required the use of Crown prerogative powers; I rather doubt it, but I do not know.

      There is, however an interesting line of enquiry; whether there have not been other misuses of Crown prerogative powers by Government over the years, that have affected domestic law in some material way The High Court emphasised the special importance of ECA 1972 as a “constitutional statute” so there it would presumably require to a major brach, rather than a technical infringement. Nevertheless, the Government was stopped dead in its tracks not through conventional political action in Parlaiament, but because a few independent electors brought the case as Claimants. It therefore does not mean there are no other examples to be discovered. It merely means neither Parliament, people or claimants have stepped forward and challenged the illeginimate use of absolute power. It happens.

      1. Alf Baird says:

        EVEL, and the subsequent exclusion of Scottish MP’s from making laws, does appear to be a breach of the 1707 Acts of Union. I’m shocked (but not surprised) that the SNP have yet to notice.

  9. e.j. churchill says:

    Mr Warren, with apologies, you need an editor – BAD!

    1. John S Warren says:

      Mea Culpa. I do not need an editor; I require to be more careful, less in haste and not be fatigued when I send the article. None of these are adequate excuses for an egregious fault. However, with all due respect, why do I feel you have perhaps been saving up a little ‘schadenfreude’ for your little opportunity?

    2. Alf Baird says:

      e.j. Churchill – For a number of years I reviewed academic journal articles and acted as occasional editor and I can see no need for editing here. Personally I found John’s article to be very well researched and structured, easy to read, as well as extremely comprehensive and highly informative.

      1. John S Warren says:

        Kind words. I must confess I thought the pointed criticism was about a number of spelling mistakes I had allowed carelessly to slip through my editing; nothing more.

        Shows what I know!

  10. William Ross says:


    Your article is very scholarly but I do not really have the time to understand the detail.
    Practically speaking, one of two things will happen. Firstly, the Supreme Court can overrule the High Court. Game over. Secondly, the Supreme Court will affirm the High Court. Result: the Prime Minister introduces a one clause act into Parliament and will make its passage a matter of confidence. The SNP can certainly vote against the Bill with no fear but no English Unionist can.
    Thus, the Bill becomes an Act. Game over.

    Brexit means Brexit. Be sure of that.

    1. John S Warren says:

      Nice point, but I do not think informing the world that you do not have time to understand the detail is an entirely convincing announcement of your forecasting credentials.

      At the same time, I believe the world is much, much more complicated than you allow (sometimes it may help, to explore the details). Reality is uncertain and the future unpredictable. The government have already found that out, and the Conservative leaders are, in all honesty, not very good at what they do. You see, it is not a game. And we are all going to find that out.

      I do not think anyone knows how this will fall. Least of all the Government.

  11. William Ross says:


    It looks like this correspondence is winding down. I honestly think that your article is well thought out. I am familiar with detailed legal argument and I know it is all about understanding the nunaces.
    I am a busy person and I apply a simple analysis to matters. I was asked on 23 June whether I wanted to remain in the EU or not. I voted Leave. Either the two possible ways forward I detailed above are applicable or there is a third. That is, that the Government is required and fails to pass an Article 50 Act in Westminster. This could be an outright failure ( very very unlikely) or a Tim Farron ” emasculation” failure ( merely very unlikely) That means we have a general election.
    The SNP will ride it well but what about Labour? They will think of Michigan and tremble.

    Keep up the good writing.

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