Thursday, November 10, 2016

874 High Court to announce whether Parliament can Veto Brexit Referendum by refusing to trigger Article 50

High Court to announce whether Parliament can Veto Brexit Referendum by
refusing to trigger Article 50

Newsletter published on 3 November 2016

(1) Brexit: High Court asked to steal the referendum by the back door
(2) High Court to announce whether Parliament can Veto Brexit Referendum
by refusing to trigger Article 50

(1) Brexit: High Court asked to steal the referendum by the back door

Theresa May and Piggy Muldoon

Written By: Andrew Rosthorn

Published: October 25, 2016 Last modified: October 25, 2016

WHEN Theresa May sent her attorney general to court last week to stop
Parliament deciding on Brexit, she stepped on a legal trip wire laid
forty years ago in New Zealand by a former Desert Rat.

The chief justice of New Zealand, Sir Richard Wild, ruled on June 11,
1976, that the country’s new prime minister had breached Section 1 of
the 1688 Bill of Rights, a law enacted 288 years earlier in London.

     that the pretended power of suspending of laws, or the execution of
laws, by regal authority, without consent of Parliament, is illegal.

Sir Richard delivered judgment only eight days after trying the case
that is now known as Fitzgerald -v- Muldoon and Others.

Just one private citizen, assistant pensions clerk Paul Fitzgerald,
complained that before New Zealand’s incoming prime-minister could
assemble his new parliament, the ‘abrasive, dogmatic and impatient’
Robert Muldoon, known around Parliament House as ‘Piggy Muldoon’, had by
abolishing a pension fund thereby suspended an act of parliament:

     exercising a pretended power to suspend a properly made law, the
Superannuation Act 1974. [...]

Forty years later in Court Four of the High Court in London, before the
Lord Chief Justice, the Master of the Rolls and Lord Justice Sales, in a
case to be cited decades from now as Santos & Miller -v- Secretary of
State for Exiting The European Union, the human rights barrister Helen
Mountfield QC raised the spectre of Fitzgerald -v- Muldoon.

Helen Mountfield QC is crowd-funded by a group of EU citizens known as
The People’s Challenge and was joined by eight QCs, including Lord
Pannick, for the businesswoman Gina Miller, and Dominic Chambers, for
the London hairdresser Deir Dos Santos, all asking for a ruling that
Brexit minister David Davis

     may only notify such a decision to the European council under
article 50 (2) TEU once he has been properly authorised to do so by an
act of parliament. [...]

The battered pound sterling soared against the US dollar on first
reports that that the Treasury Devil had conceded that after enactment
of Article 50 a new treaty between the EU and the UK would ‘be subject
to ratification process in the usual way’ and would be likely to require
an act of Parliament for ratification.

Downing Street made similar noises.

But David Pannick QC, a cross-bench baron in the House of Lords who has
fought sixty cases in the European Court of Justice and the European
Court of Human Rights, had already argued that notifying the EU under
Article 50 of the Lisbon Treaty, which has never yet been done by
anyone, is like firing a bullet from a rifle. It cannot be revoked. If
the bullet is ever fired, the fate of the United Kingdom falls into the
hands of the governments of the other 27 member states of the EU:

     once you have pulled the trigger, the consequence follows. The
bullet hits the target. It hits the target on the date specified in
Article 50(3). [...]

The pound peaked at $1.23 on the world market as the Lord Chief Justice
of England and Wales Lord Thomas of Cwmgiedd began asking Mr Eadie for
more detail on the concession.

The pound slipped back as Lord Thomas extracted an admission that the UK
government and the EU could theroretically agree to take Parliament out
of the ratification process. Lord Thomas asked,

     But could the United Kingdom and the European Union agree it didn’t
need ratification? Is that what you mean?

Eadie QC replied ominously,

     They could. [...]

Dominic Raab, a parliamentary under secretary for civil liberties in the
Theresa May government, whose own father came to England in 1938 as a
refugee from Czechoslovakia, opened a personal attack on Gina Miller:

     This is a pretty naked attempt to steal the referendum by the back
door. I don’t think it’s right that a fund manager with deep pockets and
legal friends in high places can try and block or frustrate that
process. It takes a pretty special kind of arrogance to think that one
person’s view trumps that of 33 million.

Theresa May delivered her own public message to Miller and Santos, in a
conference speech in Birmingham:

     Those people who argue that Article 50 can only be triggered after
agreement in both houses of parliament are not standing up for
democracy; they’re trying to subvert it.

     They’re not trying to get Brexit right, they’re trying to kill it
by delaying it. They are insulting the intelligence of the British
people. [...]

(2) High Court to announce whether Parliament can Veto Brexit Referendum
by refusing to trigger Article 50

Brexit legal challenge: High Court to announce whether Theresa May can
bypass Parliament when triggering Article 50

The historic case could hand Parliament the opportunity to challenge, or
even delay, the process of leaving the European Union

Rob Merrick Deputy Political Editor

Wednesday 2 November 2016 17:51 BST

The High Court will rule tomorrow morning whether Theresa May has the
right to bypass Parliament when she triggers Britain’s exit from the
European Union.

Three judges will decide a historic case which will either allow that
exit to start by the end of March - or could hand MPs and peers the
opportunity to challenge, or even delay, the process.

Legal experts believe the case – to determine whether the Prime Minister
can use the Royal Prerogative to invoke Article 50, without the
involvement of Parliament – is "finely balanced", after weeks of argument.

When it began, the Government was expected to win, but the three High
Court judges have appeared far more sceptical about its case than many
had expected.

If it loses, Parliament will be given the muscle to influence the
Government’s negotiating position, to demand regular checks on its
progress – or even to choose when Article 50 is triggered.

Such a ruling will send tremors through Downing Street, which is facing
growing criticism that it has no strategy to deliver Ms May’s promise to
"make a success of Brexit".

Already, in recent weeks, MPs have become far more outspoken in
demanding a say over what appears to be her determination to pursue a
so-called ‘hard Brexit’.

It seems likely that – whoever wins – an appeal will go to the Supreme
Court, to be heard by a full panel of Britain's top judges, or even to
the European Court of Justice.

But, at that point, the Government might be forced to change its
argument in order to retain control of Article 50, perhaps by agreeing
the exit process can be halted, if necessary.

That would represent a huge setback for the Prime Minister who has
staked her authority on her insistence that "it is up to the Government
to trigger Article 50 - and the Government alone".

At the Conservative conference last month, she tore into anyone arguing
for Parliament to influence the process, claiming they "are not standing
up for democracy, they’re trying to subvert it".

"They’re not trying to get Brexit right, they’re trying to kill it by
delaying it. They are insulting the intelligence of the British people,"
Ms May said.

"That is why, next week, I can tell you that the Attorney General
himself, Jeremy Wright, will act for the Government and resist them in
the courts."

The challenge was brought by Gina Miller, a London businesswoman,
arguing the inevitable consequence of invoking Article 50 was the loss
of statutory rights enjoyed by UK and EU citizens.

They included the right to refer a legal case to the European Court of
Justice, of freedom of movement and to sell services – rights which
should only be taken away by Parliament.

But the Attorney General argued the court challenge was an attempt to
"invalidate" the public’s decision, in the June referendum, to leave the EU.

To add to the tension, none of the lawyers have been given advance
drafts of the judgment – as they usually are to check for mistakes and
to prepare their submissions.

One expert said that suggested concerns about leaks, or that that the
judgment was still being refined, ahead of the 10am announcement.

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