The Divisional Court of the Queen’s Bench Division of the High Court has today declared that there is no prerogative power to invoke the famous Article 50: it has to be done by Parliament. None of the reports I have yet seen tells me exactly how Parliament has to make the decision (whether Act of Parliament or simple vote), but I hope a study of the judgment may reveal that.
At the moment I am like almost all my readers: I haven’t read the judgment, all I have seen are the noisy comments of those on each side of the argument (those who want the popular vote to be disregarded and those who want it to be honoured).
Within minutes of the judgment (it is very long) being delivered politicians rushed to the awful Twitter machine to give their considered opinions on what the judges had said. It was all boringly predictable. Those who disliked the decision went on and on about dreadful pinkoe judges ignoring the law. Those who liked the decision expressed their new-found love of Parliamentary sovereignty and the rule of law.
As I have said, I haven’t yet read the judgment (which ranks me with every politician who has expressed a view on it). All I will say for the moment is that, though it would be naive in the extreme to believe that the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales did not allow whatever their prejudices are to influence their decision, I deprecate, in the extreme, the appalling comments of some Brexiteers to the effect that their Lordships were motivated only by their desire to prevent us from leaving the EU.
I know that the arguments on both sides were very strong. I know that the judges (I do accept that they are probably all remainers – because that is what Islington folk are) will have been determined to put aside their prejudices (in so far as that is ever possible) when weighing up the arguments. I am quite prepared to believe that the judges’ decision was not plainly wrong (though if they didn’t say whether there should be an Act of Parliament or a simple vote I do have to say they fell down in their duty).
I must now read the judgment. When I have done that I will say whether I agree or disagree with the Divisional Court. But I doubt, if I come down against them, that I will indulge in the sort of abuse of the judges which many Brexiteers have chucked about with gay abandon.
Actually, of course, all depends on the views of the Supreme Court. We must wait for their decision. My guess, even though I haven’t read the judgment in the Divisional Court, is that the majority will agree with it. The Supreme Court is much more political than our other courts and most of its members will be confirmed opponents of the people being allowed a say on anything as important as our membership of the EU. Nevertheless, I am longing to read Lord Sumption’s dissenting judgment. It is likely to be a masterpiece.
Charles
The Bulletin 
Thanks for this, Charles, having cast a very inexpert and hasty eye on the judgement earlier I agree with the verdict, and it would surprise me greatly if an appeal will succeed.
But then I’m not a lawyer and in my humble opinion it all hinges on the EU Referendum Act 2015 which made no mention of it being binding, a rather serious omission although the government may have intended it to be so.
Look forward to your further thoughts on the matter.
LikeLike
Hithertofore, the Crown has been competent to negotiate treaties with foreign states. It was the government, acting under the prerogative, that signed the accession treaty that was adopted, retrospectively, by parliament by way of the ’72 ECA.
It is the government, designated in the Treaties as the ‘High Contracting Party’ that has competence.
The idea that parliament has a role, in the pre-ratification phase, in the negotiation of a treaty is a novelty.
LikeLike
HMB, yes, but once a treaty has been ratified even retrospectively as an act of parliament it seems that it requires parliamentary authority to un-ratify it. It’s all a bit convoluted and even expert legal opinions disagree, but it would seem from this judgement that this may be the case.
I do not doubt for one moment that Brexit will happen, but it would seem to me that included in the judgement was view that the referendum was merely advisory and not binding and this could open a whole new can of worms.
The appeal could be interesting.
LikeLike
Supreme Court is a rip off title from the US. Had to giggle when some hack mentioned “the constitution” as UK does not have one. (Unwritten? Like paying for groceries with an unprinted 20 quid note?) Brexit, here is the deal – 17.5 million voted out, more than voted stay. Therefore Britain leaves…but wait…big buisness now howls after realizing white working class communities are fed up of mass (Polish) immigration. So Ms Miller (Guyanese, not British) bungs a spanner in de works. Comme d’habitude the sheeple accept the result. Try that abroad;)
LikeLike
The judges are in Soros’s pocket.
Only revolution and a great terror will, with blood, cleanse the stables.
LikeLiked by 1 person
Charles, I suspect your judges are probably no different than some of ours. If given a chance they will make law on their own. Also, are the wigs optional or required attire?
LikeLike
Judges lost all their authority when they discarded their wigs (but we barristers still wear them).
Charles
LikeLike
From what I read elsewhere it seems one at least of the judges might have a conflict of interest in that he founded some movement that was concerned with binding English law ever more tightly to Continental law.
I’d give a link but I’m on my phone and it’s too messy go searching.
LikeLike
http://www.dailymail.co.uk/news/article-3901170/The-three-judges-blocked-Brexit.html
LikeLike
I would be prepared to bet that the Lord Chief Justice is a fully paid up member of the remain camp, but I honestly don’t think that is a reason for preventing him ruling on cases like this one.
Charles
LikeLiked by 1 person
No, I agree, Charles, but it is interesting that the media think so.
LikeLike