Prerogative Powers and the European Union


Prerogative Powers and the European Union
By Sean Gabb
(3rd November 2016)

Because I have other business today, and because the comment I have to make is most relevant for today, this will need to be a short essay.

I have read the Judgment of the High Court in the case of R (Miller) Secretary of State for Exiting the EU. So far as I understand, the Government claims that it may give notice to leave the European Union as a matter of prerogative power. The European Treaties are international agreements. These are not a matter for Parliament, though Parliament may be consulted for the sake of politeness, and must be asked for any change of domestic law for bringing a treaty into effect. But it is for the Crown alone to decide whether to make or withdraw from a treaty.

The opposing argument is that the European Treaties are unique, so far as they directly confer rights on British citizens. For example, it is the European Treaties that give British citizens the right to bring cases before the European Court of Justice, for the interpretation of the general rights and obligations created by our membership of the European Union. Even if all these rights and obligations are to be re-enacted into our domestic law, withdrawing from the Treaties abolishes the right of access to the European Court of Justice.

Now, the withdrawal process, once begun, is accepted to be irrevocable. At the end of two years following notification of intention to leave, we do leave, regardless of what agreement has or has not been reached.

For this reason, for the Government simply to notify its intention to leave the European Union is to give notice of the withdrawal of rights from British citizens. Therefore, notice can only be given once an Act of Parliament has been made to allow notice to be given.

The Court accepted this opposing argument. The case may yet go before the Supreme Court, and the Judges there may be of a different opinion. But, having read the Judgment with reasonable attention, I doubt the Supreme Court will be of a different opinion.

This leaves the Government with two options.

First, it can try to get a Bill through the current Parliament to allow notification of its intention to leave the European Union. The Government has a majority of twelve, or ten – I cannot recall what effect the resignation of Zac Goldsmith has on the matter. Whatever the case, this is a small majority. Many Conservative Members are against leaving the European Union. The Lords will probably vote any Bill out – the Salisbury Convention requires them to pass Bills sent up from the Commons without amendment or delay only if a Bill was a manifesto commitment at the previous general election. Since the Government did not promise, in the 2015 general election to leave the European Union, the Lords are at liberty to block or delay to the full extent of their powers. At the least, they may demand another referendum, this time with a threshold requirement.

The Government could create enough new Peers to flood the Lords. But even this threat has only been made in recent centuries once a general election has been called and won by the Government. For reasons I will discuss in a moment, this may not be possible.

This probably means that any resulting Act of Parliament will have tacked onto it any number of limitations on the manner and extent of our departure from the European Union. It may in effect prevent us from leaving the European Union in any meaningful sense.

Second, the Prime Minister can ask the Queen for a general election. However, the Fixed Term Parliaments Act 2011 prevents her from asking for this without a weighted majority in the House of Commons. Since Labour will not consent to an election that it would certainly lose, I do not see any easy way to call fresh elections.

The result, so far as I presently see it, is that either the Remainers will get some of their way, or the Government lawyers will need to think of something clever.

My suggestion is that the fixed Term Parliaments Act should be suspended. The relevant sections of the Bill of Rights 1688 says:

That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.

Let the House of Commons pass a resolution, by simple majority, asking for the Act to be suspended. Since this is a matter affecting elections to the House of Commons, the Lords need not be involved. Once the Act is suspended, new elections can be called.

Search me what else can be done. I suppose this is what happens when too many people with degrees from Oxford are allowed to rule the country

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118 comments

  • Sean, the Fixed-Term Parliaments Act at http://www.legislation.gov.uk/ukpga/2011/14/pdfs/ukpga_20110014_en.pdf does say “This Act does not affect Her Majesty’s power to prorogue Parliament”. It is curious that that was put in at the end of an Act of Parliament specifying the length of parliament, but the prerogative remains. And Theresa May is still entitled to advise the Queen to exercise the prerogative. If I were May, I’d call an election now. The court judgement shows how inadvisable it was to wait so long before implementing Article 50 – it has allowed the bitter remainers to reorganise and regain the initiative.

    • Yes indeed – it is clear the Establishment was wrong-footed by the referendum result. Time is our enemy here – it will give them the opportunity to figure out how to circumvent the wishes of the people – as they have done with every single referendum ever held in the EU. Remember what happened when France and the Netherlands killed off the Constitution for Europe?

    • Proroguing is just sending the MPs home until they are needed again. It isn’t a dissolution.

      • In that case, if I were in power, I’d be replacing judges on the “Supreme Court” (as if the UK had such a thing) with reliable judges to get the desired result.

        • Judges can only be replaced following a joint approach by Lords and Commons to the Crown (Act of Settlement 1701)

          • Well, what about a suit of judicial perjury against the judges for violating their oaths of office? If the judges are arrested by Order in Council, there are then vacancies. The prerogative can do many things not previously done.

            • There was a case in 1701, where, I believe, the Lord Chief Justice voided an Act of Parliament. The Speaker of the House of Commons turned up with his men at arms, and a probably drunken argument ensued over who could have whom arrested for contempt. It might be fun to see this repeated in the full glow of the media.

              On the other hand, if the Government hands in notice now, it could be refused on the grounds that our internal constitutional rules have not been followed.

              Time for those Government lawyers to start earning their salaries.

              • I have heard it said that if the Queen orders a soldier to arrest a government minister, he is to arrest the minister. If a minister orders a soldier to arrest the Queen, he is to arrest the minister.

            • The judges have not violated their oaths of office.

              • They have violated their oaths of office. They have sworn to uphold English Common Law — under which Parliament had no right to transfer lawmaking capacities to Brussels in the first place.

                • In 2003 the Queen ‘re-took’ her Coronation vows, in which she promised to rule her people “according to their laws and customs”, at the same time as she was preparing to sign the Nice Treaty.
                  While Her Majesty was inside Westminster Abbey, I was driving a bus round & round Parliament Square with these words emblazoned on the sides; “Your Majesty, remember your Coronation Oath – save us from the Nice Treaty”.
                  Got our picture on page 2 of the ‘Sun’. Opposite the lovely Nicola from Croydon as I recall, who was adorning page 3.

                  • What did Nicola from Croydon have to say about it? And did she have big tits?

                    • I think she was quoted on the subject as a matter of fact – I would have to seek out the newspaper cutting to see what her opinion was on the subject. And in answer to your second question, quite pleasant, I would say 🙂

                • Here is a link to the oaths: https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/oaths/

                  There is no specific mention there of upholding “English Common Law” as a specific institution.

                  • Our laws and customs = the Common Law. It does not means laws handed down to us from abroad.

                    • I don’t think I can agree. In this context, laws and customs cannot only mean common law but must mean all laws. There has been no breach of the judicial oath and the oath of allegiance. As far as I can tell, the judges are just ruling according to the laws of the land.

                      However don’t take my scepticism about your specific point as lack of sympathy for your broader position.

                    • You fail to understand. The fundamental law of the land is the Common Law. Parliament’s right to sit and the Queen’s right to reign are ultimately Common-Law Rights. Statute law is a subset of the Common Law – and as Sir Edward Coke, Lord Chief Justice, ruled in Dr Bonham’s case. He argued there were things that Parliament could not do, as the Common Law did not allow Parliament to do them. Our laws and customs is a phrase that clearly refers to English Common Law, as statute law is not part of our customs. The law of the land did not permit Parliament of the Queen to take us into the EU. As Sean Gabb has pointed out, the Weights and Measures judgement was quite significant, as it supported the judicial overturning of the Weights and Measures Act based on the principle that it could not overturn previous constitutional law. Where was this principle when the ECA was enacted?

                    • “To govern Her peoples according to their laws and customs”. That is in the Coronation Oath, isn’t it? Is it also in the Bill of Rights? And that bit about “foreign princes, prelates and potentates” – that was in the Bill of Rights, wasn’t it? Taken together, assuming they can be taken together, laws imposed on us by foreign princes etc would not seem to be part of our “laws and customs”. Whaddya think?

                    • I think that bit’s in the Act of Supremacy.

                    • The Lord Chief Justice, on the judges in the recent ruling, is also a privy counsellor and took the privy counsellor oath, including “You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.” There is no doubt that implementing EU law in a UK court, or upholding purported statutes claiming the right of the Crown in Parliament to impose EU law on us, is a violation of the Common Law, and thus the laws and usages of this realm. The Lord Chief Justice, Lord Thomas of Cwmgiedd, is a perjuror, and judicial perjury is possibly the most serious crime.

                    • I don’t think I’ve “failed to understand” you. I just disagree with you. Or if I have failed to understand you, it is not due to any misunderstanding of the subject matter. In the event, I’d love to be able to agree with what you are saying and denounce these judges for “judicial perjury” (whatever that is – it sounds serious), but I can’t. They’ve ruled on the law and complied with their oaths. I think you are conflating a policy disagreement with a judge’s duty to uphold the law.

                      You state that the ‘Common Law’ (you use a capitalised ‘C’ and ‘L’) is the “fundamental law of the land”. It’s not clear what you mean by that. If you mean ‘fundamental’ in the historic sense that common law provides the basis of much law in this country, and even what we recognise as the rule of law itself, then I agree; however that in and of itself is not specially germane to the point in hand, which is your allegation that these judges have broken their oaths. The oaths refer, among other things, to “laws”, the expression “laws and customs” [‘usages’ in the judicial oath] referring to two different institutions, and the courts are not the only, or even the primary, source of law in this country. You know that. And even if the references you cite were intended only to mean “common law” (they don’t, as that would make no sense, but let’s suppose they do), I’m not clear why you think the judges are breaking a promise to uphold the common law. I don’t think you’ve really explained this., other than to say that you are think they are ruling in favour of a supranational authority, which is not what they have done. The Miller ruling does not, in and of itself, favour or disfavour any specific policy view. Of course, it could be that the judges are privately pro-EU and have ruled accordingly, but I’m not clear how you think we should go about proving that. Should we put them on the rack and torture them?

                      If on the other hand you mean that common law is supreme or takes precedence in some sense, then you are manifestly mistaken. A basic constitutional principle is that Parliament is sovereign and supreme. Parliament can do what it likes (admittedly this is subject to a number of important qualifications involving custom and convention). That principle, in and of itself, defeats any pretence that the courts are somehow a superior source of law. You might make reference to Factortame I and Thoburn v Sunderland City Council in support of your position, but those rulings refer to the voluntary acceptance by Parliament of the supremacy of EC/EU law. Parliament reserves its supremacy at all times and this was reaffirmed in the Miller ruling.

                      Of course, if I have truly misunderstood you, then I would welcome further clarification regarding your views.

                      In closing, I ought to clarify that my comments here reflect my understanding of the legal and constitutional position ‘as is’. I am not telling you what I think – what I think is not of any importance – rather I am basing my comments on my understanding of how the law in this country works.

          • The relevant law on removal of Supreme Court Justices is actually contained in section 33 of the Constitutional Reform Act 2005, which states that a justice may be removed “on the address of both houses of Parliament”: http://www.legislation.gov.uk/ukpga/2005/4/section/33. There is no mention of the Crown.

            Incidentally, in point of interest, the law on removal of High Court judges is now contained in sub-sections 11(3) and (3A) of the Senior Courts Act 1981: http://www.legislation.gov.uk/ukpga/1981/54/section/11

            In that regard, Dr. Gabb’s interpretation is correct, but sub-section 11(3A), added by the Constitutional Reform Act 2005, also states that Her Majesty is to be advised by the Lord Chancellor in the matter, the Queen relying on his recommendation. Not that these provisions are relevant any more, as the case is now in (or will be in) the Supreme Court.

            • I regard the “Supreme Court” as an unconstitutional body. The Common Law makes no provision for a Supreme Court, but rather for a House of Lords which is part of the upper house of Parliament. To argue that the court is supreme, and not the Crown in Parliament, is ipso facto treasonous. As Lord Sudeley pointed out a few years ago, the Common Law allows the full House of Lords to dismiss the Law Lords and take over cases into the full house, and so the House of Lords as a judicial body is part of and not antagonistic to Parliament. Our Constitution is in tatters.

              • Yes, I realise that the existence of the Supreme Court has removed Parliament’s judicial function, but doesn’t Parliament remain the supreme court of the land, notwithstanding that administratively we may also have a court called the ‘Supreme Court’? My point being that the new Supreme Court is merely the highest domestic appeal court, but it does not and cannot abrogate parliamentary sovereignty and supremacy, which remains intact. Essentially, Parliament can still do what it likes.

                • Nooooooooo! The highest court in the land is the ECJ. We are living in a new country called Europe now, in case you hadn’t noticed 🙂 This is the problem – until very recently we heard politicians and others talking about our ‘relationship’ with the EU, as if the EU were something ‘over there’. We do not have a relationship with the EU any more than Florida (where I am writing from) has a ‘relationship’ with the United States.
                  Remember what happened to South Carolina when they tried (perfectly legally) to leave that Union?

                  • Hugh,

                    I said that the Supreme Court is the highest domestic appeal court. I realise there is a European judicial level above the Supreme Court.

                    I see what you are getting at, and I agree we could very easily end up in a federal system, but I think you overstate the case. I don’t agree that we are living in a federal super-state at this time. The EU is still founded on an international treaty and Britain still retains sovereignty (whether that sovereignty is absolute or relative, and other details, are, I accept, more complex).

            • Ok, you say in response to D J Webb; ” You might make reference to Factortame I and Thoburn v Sunderland City Council in support of your position, but those rulings refer to the voluntary acceptance by Parliament of the supremacy of EC/EU law. Parliament reserves its supremacy at all times and this was reaffirmed in the Miller ruling.”
              I believe Lisbon has changed all that. The European Union prior to Lisbon was an intergovernmental-treaty based organisation. A voluntary union of sovereign states. Lisbon abolished this intergovernmental Union, and created in its stead a new unitary state, also confusingly called the European Union. The Constitution for Europe a.k.a. Lisbon Treaty is now the constitution of this new country called Europe.
              To give an example of the subtle changes created by Lisbon, prior to 2008, when the British Prime Minister attended meetings of the European Council, he did so as a representative of this country. Now, post Lisbon, he, or she, attends as a representative of the EU. I cannot now remember the precise legislative means by which this change was effected, but effected it was.
              What I am getting at is that our acceptance of the supremacy of EU law is no longer voluntary (as it was prior to Lisbon). It is a consequence of our acceptance of Lisbon as our new constitution. Pre-Lisbon, we could have just repealed the ECA and left on our own terms. Post Lisbon we have agreed that the only way we can leave is on THEIR terms. Pre-Lisbon we could have just declared UDI. Post-Lisbon that would be illegal.
              Lisbon changed everything. We’ve been done up like a kipper.

              • Again, there is a problem with your terminology. The EU is not a unitary state, and is very unlikely ever to be so. It can’t be because, even if we accept fully your case that the EU has a distinct national identity of its own, there are significant competences devolved to the lower levels of government. Thus, at most, the EU would be considered a federal state, not a unitary state.

                The EU has always been hybrid and difficult to classify. It is international, but it is also supranational in that its institutions have delegated competences in their own right. It is federal but also intergovernmental. I would agree that in the last twenty years, the EU has moved in a definite federal direction and away from intergovernmentalism, but if we withdraw, we withdraw. Beyond that, I don’t see what else can be added. It may be that the EU has schemed to make it more difficult for states to withdraw, but until the Lisbon Treaty there was no formal codified process for withdrawal. Now there is. That probably reflects the ongoing federalisation of the EU, in that sovereign Member States that are moving towards deeper political integration need to set down an exit procedure for those Member States, such as the UK, that don’t want to go along with the project.

                Unlike you, I don’t necessarily read anything sinister into this aspect of it. It has long been acknowledged that the British take a philosophically different position to, say, the Germans. In an EU context, the British are anti-federalists and sovereigntists and wish to retain a distinct global presence, whereas the Germans are federalists and want integration for geopolitical reasons. This cleave was always going to have to be resolved at some point. We have now arrived at that point. If Brexit happens – and I think it will – then this will assist the federalist project because it will mean that a major counter-federalist influence will no longer be part of the EU.

                • You’ve posted 2 very long replies to me. I’m not even going to bother reading them. If they were in two sentences, I would have read them. This is turning into a green ink debate. See my article on oaths on this website somewhere.

                  • You do seem to struggle when people disagree with you, even when politely.

                    I’m sure your article on oaths is very interesting, but I don’t find your views on the subject to be very relevant or enlightening, frankly.

                    The basic difficulty is this – you are not actually analysing the law, rather you are giving us your (pseudo-legal) opinions about how you think the law should work.

                    • Well, if you understand the judiciary’s current interpretation of the law to be a key part of how the law works, then yes, I’m not analysing the law. On the other hand, I’m looking at the law the way it was viewed for centuries before Blackstone.

                • Here I find myself diametrically opposed to you. You seem to take the view that the EU is acting in good faith. I do not. Here is what you say “until the Lisbon Treaty there was no formal codified process for withdrawal. Now there is. That probably reflects the ongoing federalisation of the EU, in that sovereign Member States that are moving towards deeper political integration need to set down an exit procedure for those Member States, such as the UK, that don’t want to go along with the project.”
                  Prior to Lisbon we didn’t NEED a ‘codified process for withdrawal’. We could just tell them we’re off, and we could do it on our terms. I am certain that the reason this procedure (Article 50) was introduced with Lisbon was to make it impossible for anybody to leave. I am told Stalin had a similar clause in the Soviet Union. Look what happened in Budapest and Prague.
                  Once again I am unable to provide the precise language that describes the legal process by which the ‘old’ EU was abolished and superseded by the new ‘unitary’ EU, but it is firmly imprinted in my mind, and it is not something of my own invention.
                  Once again, I feel it is worth re-stating my starting premise; their dream of a politically unified Europe has been seventy years and more in the making. If we leave, and if we make a success of leaving, there will be a stampede for the exit and the dream is finished. They are NEVER going to allow this to happen.
                  We can debate the niceties of the legal position for ever, but it won’t change the ‘realpolitik’.
                  I am intrigued by the fact that after all these most interesting exchanges, we are no nearer a consensus among the various contributors (other than that everybody seems to agree that I’ve got it wrong, which doesn’t bother me in the slightest).
                  I think we can all agree that we have got ourselves in an unholy mess, which will take some unravelling.

                  • I wouldn’t trust the people who run the EU as far as I can pick them up and throw them, and I do think you are right that this is a political project – don’t think I’m ignoring your point – but we’ve voted to Leave and it benefits the federalists if we Leave. But Leave will probably mean that we Stay in some sense (i.e. EFTA or something similar).

                    I think you again overstate your case when you say that we will NEVER leave. You can’t be sure of that, just as I can’t be sure we will leave.

                    • I don’t think it benefits the federalists if we leave. I think that where I differ from most other commentators is that I am viewing this whole situation from the other end of the telescope. I study things from the perspective of the EU, and I think it is undeniable that if we leave, and if we are successful on the outside, others will follow. In fact there will be a veritable stampede for the exit. Their dream of 70+ years will collapse when it is within sight of its goal.
                      The notion that they are just going to sit back and watch us destroy all their plans – encourage us even – given how ruthless they have been in pursuit of their objectives, seems to me to be utterly preposterous.
                      Those driving the ‘Project’ do so for a whole spectrum of reasons that lie between promoting world peace on one hand and raking in vast amounts of cash on the other. It is the ideologues who are the most dangerous; their goal is to abolish any notion of the Nation State and create a new country called Europe or indeed a new country called ‘The World’. We foolishly talk of ‘EU immigrants’ without realising that Romanian thieves and Polish builders are all now EU citizens just like you and I are, and indeed Her Majesty the Queen is, with exactly the same rights to live, work, and milk the system as we do. This is a massive undertaking, and they have succeeded in bring it about. They are not just going to throw it all away now.
                      Then there are the practical considerations. Without the UK, the EU cannot survive. It is already broke, and if it loses all the money we pour into it, plus our fish and whatever other resources it is allowed to plunder, the game is over.
                      We keep using the word ‘leave’, and I think that is misleading. The question is whether or not we will continue to be bound by the Treaties. My conclusion is an emphatic ‘Yes’.
                      This damned court case has cost me a lot of money. I was going to go to the bookies and bet a large sum of money that we would still be bound by the Treaties in the year 2020. This court case must have scuppered the odds. I already made a couple of thousand by betting on a ‘leave’ vote in the referendum. By placing a larger bet on the outcome of negotiations, I would be in a ‘win-win’ situation; either we’re free of the EU or I make a lot of money 🙂

  • You say “Now, the withdrawal process, once begun, is accepted to be irrevocable. At the end of two years following notification of intention to leave, we do leave, regardless of what agreement has or has not been reached.”
    I do not think this is correct. I believe there is provision for the two year period to be extended, subject to a unanimous vote in the European Council.
    The key word here is ‘unanimous’. According to Article 50, the so-called ‘negotiations’ will be conducted by the European Council. This consists of the Heads of State, or heads of government, of the Member States, plus the President of the Council and the President of the Commission, Messrs Juncker and Tusk. But the elephant in the room (pun unintentional!) is paragraph four of Article 50, which reads (from memory) “The representative of the withdrawing Member State shall not participate in discussions concerning it”. In other words, the ‘negotiations’ will be conducted by the leaders of the other 27 Member States, with the singular exception of Mrs May, who will be excluded from all talks concerning our future. So it will be a simple matter for them to reach a ‘unanimous’ decision.
    It has always been my view that the ‘other 27’ will have two years of secret talks amongst themselves with which to chew us over and spit out whatever is left of this once great country. My instinct is that by the time they have told us what the terms of our departure will be, we will go down on bended knee begging to be re-admitted.
    . Since the Treaty states the negotiations will be conducted by the European Council, quite what the role of David Davis and the other May appointees will be in all this I have no idea.

    • Sorry but I think you may be misreading paragraph 4 of Article 50. Here’s a link: http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html

      Paragraph 4 has to be read in the context of paragraphs 2 and 3, to which it refers. What paragraph 4 is referring to are the internal deliberations of the European Council during and concerning the negotiations. It is saying that the withdrawing/seceding Member State shall be excluded from such discussions. This is entirely proper. There is no reason why the other Member States should allow the UK government to participate in such European Council discussions, which will obviously be highly sensitive. It does not mean that the withdrawing/seceding Member State is excluded from its own negotiation, which would be ridiculous.

      However you are correct that paragraph 3 allows for an extension of the two year period, and this does introduce some uncertainty into the Article 50 withdrawal procedure because the negotiation period could theoretically be extended indefinitely until a new ‘Article 50 compromise’ is agreed with the withdrawing Member State allowing it to remain within the bloc. That could well happen here. I think a second referendum asking for popular ratification of an ‘Article 50 deal’ could be one of the gambits planned by the hardcore Remainers.

      • I can’t see it that way. Maybe I’m missing something. Here’s the text; “4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.”
        So for the purposes of the negotiation described in para 2 & para 3, we are excluded.
        Here is an interesting phrase; ” the Union shall negotiate and conclude an agreement with that State”. Does this mean “negotiate with and conclude with”, or does it mean “negotiate and (then) conclude with”?
        Of course it will ultimately mean whatever they want it to mean. Such niceties have never bothered the EU.

        • I’m afraid I really don’t follow you. The plain meaning of Article 50(4) is that the withdrawing Member State shall not participate in the confidential discussions of the Council involving or concerning the negotiations. That is perfectly proper. Why on earth should the Council allow the withdrawing Member State to be a party to such discussions?

          But it has nothing to do with the negotiations between the Council, acting on behalf of the Union, and the withdrawing Member State, which obviously must involve the Member State or they would not be negotiations and the entire purpose of Articles 50(2) and 50(3) would be defeated.

          • Ah, I see what you mean. North said something similar but I didn’t quite follow his meaning. “Discussions”; “negotiations”; two different things, right? I wonder. I cannot agree with you that the meaning is plain.
            In any case, your argument runs straight into an obstacle; you say “Why on earth should the Council allow the withdrawing Member State to be a party to such discussions?”. Because the UK is still a member of the Council, that’s why. If we are excluded, it’s not the European Council. It would be an informal meeting of 27 Heads of State.
            Remember DeGaulle’s ’empty chair’?
            With the greatest respect to you and the other contributors, I think so many of you are thinking like Englishmen; that the law and the correct procedure must be followed, whether it is in our interests or not. This of course is the issue that has blighted our membership from day one. We play by the rules, they don’t. Dan Hannan challenged the Commission about opening foreign embassies long before Lisbon gave them the authority to do so. “Where in the Treaties does it say you can do that?”, he said. “Where does it say we can’t?”, came the response. Maybe I have a slight advantage in that I was raised a Catholic. I know how these people’s minds work 🙂

            • None of that has anything to do with it. I think you’re complicating something that is very simple.

              You asserted that Article 50(4) excludes us from our own negotiations. It plainly doesn’t. The plain meaning of Article 50(4) is that once an Article 50(2) notification is sent, we are excluded from the European Council when it convenes to discuss the negotiation – which is as you would expect things to work. If we’re negotiating with the EU for our withdrawal, we wouldn’t expect to be privy to internal discussions among the remaining Member States about the terms of our withdrawal. Those discussions (which I suppose may also informally entail bilateral and multi-lateral negotiations between Member States) are confidential to the EU and its remaining Member States.

              The negotiations, however, are a different matter. We are party to those and Article 50(4) doesn’t say otherwise. If we weren’t, then it wouldn’t be a negotiation.

              I’m not sure how else I can express this. If you’re still struggling, I can only suggest you read through the whole of Article 50 again and then let me know if you still disagree. If you read it properly, you should see that the provisions make sense.

              • I have read Article 50 dozens of times and I cannot see what seems to be ‘plain’ to everybody else. I wonder why that is. I am very grateful for your comments but I can’t see it your way. I will sleep on it.
                You say “Those discussions […] are confidential to the EU and its remaining Member States.”
                But there are no ‘remaining’ Member States. We will be a Member State until the whole thing is concluded. We are still bound by the Treaties, and with that obligation comes the right to attend Council meetings. They cannot just shut us out. Sorry, they cannot just LEGALLY shut us out. If they do it’s not the Council.
                You also state ” If we’re negotiating with the EU for our withdrawal, we wouldn’t expect to be privy to internal discussions among the remaining Member States about the terms of our withdrawal.”. Actually I would expect that. It’s not us against them. After withdrawal it will be, but for now, and until the negotiations are concluded, we are ‘one of them’ and have exactly the same rights as the other 27.
                ‘Discussions’ to me means sitting around a table discussing these things as equals, not being told to leave the room while the grown-ups decide for us.

                • They can legally shut us out of European Council meetings if the Treaty says they can.

                  And Article 50 says they can – and rightly so. Why should we be allowed to be part of confidential discussions among contracting principals regarding our withdrawal? That would be like a negotiation for the purchase of a house where I am allowed to listen in on what the sellers say to each other.

                  On the other hand, if they were to say that there will be a negotiation without us, then yes, I agree that would be outrageous – and it would also amount to a ridiculous, oxymoronic situation where there would be a negotiation without a negotiation: a sham, in other words.

                  But that’s not what Article 50(4) says or means. You’ve just got it wrong.

  • Agreed. And I am currently tribally obliged to agree with the dig at the Other Place. As I think I said on the morning of the result, it has always seemed inconceivable to me that we would just leave the EU. Almost every major institution of this country wants us to stay in. 48% of the people who voted wanted us to stay in, and this is big enough for the Remainers to claim the result was indecisive. In the olden days, i.e. before 2011, you would have just called a Snap Election and the result would have been a Brexit Parliament. Labour might have won 150 seats and the result would have been a right-wing Tory landslide, with much deselection of Europhile MPs beforehand. As it is, we are stuck with what we’ve got until 2020, by which time the Conservatives may be at each other’s throats again, and Labour may have united around a moderate social democratic platform with someone more effective with a northern accent like John McDonnell in charge. Not promising.

    • I think we shall leave, and on roughly acceptable terms. It’s just a matter of fixing the legalities. That’s what constitutional lawyers are meant to do.

      • No chance. I’m off to the bookies with $1,000 on it!

      • I think we will leave as well. But the only reason I believe this is because it is clear that the anti-British Establishment have a good Plan B open to them, which is EFTA membership or default membership of the EEA – either will secure continued full participation in the Single Market and will amount to associate membership of the EU in all but name.

        If that option were not open, I highly doubt we would be allowed to Leave, at least not without considerable and quite shameless scheming to try to keep us in.

        It follows that I believe Brexit will be a ‘soft’ exit and nothing much will change at all.

        However, I sincerely hope I turn out to be wrong and we leave the whole thing, lock, stock and barrel.

        • I don’t think so. The Lisbon Treaty abolished the intergovernmental body called the European Union, and in its place created a unitary state also called the European Union. A country called ‘Europe’ in fact. That has been their goal for decades, and central to their plan has been the inclusion of the United Kingdom.

    • Like the Irishman giving directions to the lost traveller, if I were you I wouldn’t start from here. My perspective is this; this Project of a politically united Europe has been underway for at least seventy years. Now they are within sight of their objective, albeit the thing is just hanging together by a thread, they are not about to relinquish their dream. If we leave, and if we make a success of leaving, there will be a stampede for the exit and the whole thing will collapse overnight. So they will do anything, and I do mean anything, to keep it all together.
      In my view this whole Article 50 thing is a scam. Nobody seems to have woken up to the fact that we will play no part in the ‘negotiations’, if indeed they ever take place.
      Bear in mind also that every single referendum in the EU has resulted in a ‘No’ vote, and in every case that vote has either been overturned or ignored; Denmark with Maastricht; Ireland with Nice; France and the Netherlands with the Constitution; Ireland again with Lisbon; and more recently the Ukraine Treaty.
      If the British referendum is to be respected, this will be the first time in the history of the EC/EU that this has happened.

      • Yes, but those have not been referendums on leaving and a territory did leave the EU’s predecessor, the EC, during the 1980s – Greenland – so there is a precedent for this. And unlike in 1982 when Greenland voted to leave, today there is a codified procedure for withdrawal contained in the Treaty.

        I also think that the Establishment have their Plan B lined up – EFTA or some other status within the EEA – and the pressure being brought to bear now will lead to one of those ‘soft’ options as a compromise.

        I think we will leave – but it will take years.

        • I believe the whole purpose of the ‘codified procedure’ contained in Lisbon is to prevent anybody actually leaving. Prior to Lisbon we could have just repealed the ECA and waved bye bye. Five minute job. Now look at the tangle we are getting ourselves into. Greenland was a long time ago – they have become more practised in the dark arts since then.

  • Subject to a government defeat at appeal, it seems, it seems that Parliament must have its say. Therefore, it must be taught obedience to the will of the people. The only way I can see in which that might be done to is to confront the Remain majority via some form of second referendum – which will, obviously, be won handsomely by the Leave faction. Who is going to vote for the recalcitrant Remainers now? Who in government would argue for them? What would they argue now that Project Fear is a thoroughly busted flush? That Junker & Co are good guys really? That open borders are great? What is the argument?

    Armed with a decisive victory it should be possible to go back to Parliament and see who, among the now humiliated Remainers really wants to stand against the public will.

    • Maybe, but they should not get a second referendum… they lost the first, now they need to deal with it, rather than trying to be smart-alecks about it.

  • I will tell you what I find odd about this whole thing; I have quoted Article 50 para 4 many times in various places, and I never get any reaction. Nobody ever says “You’ve mis-read it”, nor do they say “Oh yeah, you’re right – we’re stuffed”. Given the monumental significance of paragraph 4 I find this very surprising. I feel as though I am living in some sort of parallel universe.

    • I think you have misread it. The real Devil in Article 50 is the proviso in paragraph 3 that allows an extension of the negotiation period (albeit this requires unanimity in the European Council).

      • Correct and as it is, the EU big wigs are growing impatient.

  • I wonder what would happen if Theresa May simply invoked Article 50 tomorrow? She could ignore the court judgement and just go ahead – what could happen to her? Nothing, I bet…

    • Better still, we could simply repeal the 1972 ECA and tell Brussels to get stuffed. The ECJ would (quite correctly) rule such a move illegal, and we would respond by saying we no longer recognise the ECJ. I think that whichever way you cut it, it will ultimately come down to such a stalemate. The problem is, we would have to be prepared to defend our actions by force if necessary.

      • How would it be illegal?

        • It would put us in breach of our Treaty obligations. The Lisbon Treaty a.k.a. Constitution for Europe is in effect our new constitution. We have signed it and agreed to its terms. The only legal means of secession under Lisbon is via Article 50.
          Mind you , the American Revolution in 1776 was also illegal and that didn’t turn out too badly.

          • Even if you are correct, I’m not clear on how that would make a repeal of the European Communities Act ‘illegal’. It may or may not be contrary to international law to repeal the Act in a manner that is inconsistent with the relevant Treaty, but Parliament is sovereign.

            Also, Parliament can repeal the ECA, in any manner it chooses, and even if the repeal measure has the effect of immediately disapplying EU law from UK domestically, it does not necessarily follow that we are in breach of Article 50. Article 50 codifies a notification and withdrawal procedure. We can disapply EU law while remaining entreated to the EU corporately for the duration of withdrawal negotiations or until the two years expires, as the case may be.

            • Sorry, I didn’t make myself clear. Repealing the ECA is not in itself illegal, but the ECJ would argue that it achieves nothing, and they would be right. I suspect they would argue that we have thereby repudiated a treaty which no longer exists, since the Treaty of Rome has been superseded and replaced by the Treaty of Lisbon. The fact is that the Treaties will bind us for the duration of the withdrawal process, and the only legal method of withdrawal according to the Treaties is by means of Article 50.
              Repealing the ECA and then telling Brussels to get lost would have no legal force according to the Lisbon Treaty. We would have to disregard our Treaty obligations in order to effect withdrawal by that method, and that is the bit that is illegal.
              In the unlikely event that we are allowed to leave the EU, Directives will remain in force until individually repealed, whereas Regulations will cease to apply immediately. It would be necessary to implement all EU Regulations by means of domestic law until they can be dealt with, otherwise there would be legislative chaos.

              • If we repeal the ECA 1972, we are also repealing all Amendment Acts that have enacted subsequent European treaties. That is what is meant when people politically refer to ‘repealing the ECA’. Thus there would be no case for arguing that we had only repealed one treaty or another or that we had repealed treaties selectively. (Of course, Parliament could decide to repeal EU laws selectively, but that would only have the effect of incorporating retained laws fully into domestic law, it wouldn’t alter the status of the UK viz. the EU).

                So, repealing the ECA would concern all enabling legislation that has been passed down the years, in so far as the repeal measure does not also incorporate those laws into domestic law, though in point of fact, the repeal of the ECA does not and cannot extinguish the treaty itself – obviously, it continues to run for the remaining 27 Member States – but less obviously, nor can it operate as a withdrawal from the treaty, as it is settled law that the Crown ratifies and revokes treaties, not Parliament.

                Here you will see I am making a distinction between ‘withdrawal’, which is an international process and in the hands of the Crown, and ‘repeal’, which is a domestic legislative process in the hands of Parliament. This distinction I make would, on the face of it, lend support to the government’s position against Miller, but only on the surface. I don’t think it does so in substance. Remember that the Miller ruling is on a slightly different point: which is the process for initiating withdrawal from the treaty and whether this should require parliamentary consent in the first instance. Even if it does – and I happen to agree with the judges that, from a UK perspective, legally and constitutionally it does – that does not alter the fact that it is the Crown that withdraws us from the treaty, and furthermore, Article 50(3) puts the matter irrevocably beyond Parliament and in the Crown’s hands once the Article 50(2) notice is served, establishing an ‘inevitability’ principle which I think underlines the court’s ruling in Miller.

                I think you are strictly incorrect when you say that Article 50 is the only process for withdrawal from the treaty, as it is possible for the government to withdraw from the treaty unilaterally by breaching it, through promulgation by denouncing the treaty, or by the mutual consent of the parties (i.e. the UK government and the other Member States of the European Council) through a withdrawal agreement outside the scope of Article 50, thus amending the treaty itself. The ruling in Miller does not touch on this question, simply dealing narrowly with the question of whether an Article 50(2) notification is fully within the scope of Crown prerogative.

              • Hugo, you keep spouting EU propaganda. The ECJ could argue anything it wanted if we repealed the ECA, but it would be irrelevant. As long as British courts upheld the repeal of the ECA, we would be gone. However, going down any other route than the Article 50 would be seen as provocative in Europe, and possibly unnecessarily so. Another alternative route is for the courts, based on Lord Justice Lawes’ judgement in the Weights and Measures case that there is a hierarchy of laws and that constitutional laws cannot be impliedly repealed, could strike down the ECA as it did not expressly repeal numerous previous constitutional acts, including the Act of Union, the Act of Settlement, the Coronation Oath Act and a few others. This is my preferred option: for the courts to acknowledge we are not legally in the EU in the first place!

                • Totally agree. We re not legally in the EU anyway

                • Perhaps I didn’t make it clear that I was simply stating how I believe the ECJ would view things. I am certainly not advancing that argument myself. It is expressly stated that part of the remit of the ECJ is to promote political union, remember. My starting premise is always that they will do anything – and I do mean anything – to keep us in. Without us, their dream is over, and they’re just not going to let that happen. I’ve been involved in EU politics since Maastricht, and I have never wavered in my belief that if we want out, we must be prepared to fight our way out.

            • Of course, HMG can do anything it can get away with. But going outside the bounds of legality can be dangerous. So long as it can somehow be done within these bounds, it should be done within them.

    • This is technically possible as the High Court’s judgement was only declaratory with no inherent enforcement powers attached. However if the Prime Minister does as you suggest, she would be defying the court’s declared position on the legal rights of the parties, and that being the case, it would then be open for the claimant or any other party from the claimant pool, to bring proceedings for injunctive relief, and most probably damages, against the government. In short, it won’t happen.

      • I thought the closing paragraphs did promise injunctive relief, to be formalised in a court order. This being so, it would be contempt of court for the Minister to serve an article 50 notice except with Parliamentary approval.

        • I would be inclined to show contempt of the court! As the executive controls the armed forces. It should be pointed out very forcefully to the Queen that her assent to the ECA was a violation of the Coronation Oath and much worse than anything James II ever did. If she doesn’t play nice, Leavers should support abolition of the monarchy.

          • Personally I would get rid of the monarchy now. I think this whole affair has revealed its shortcomings. I would rather face these traitors square on than let them hide behind the conceited legitimacy of ‘the Crown’, which is actually meant to represent the People, but which cannot under the present Monarch who is characterologically elitist and ignores popular will.

        • Admittedly I may have got this wrong, but I can’t find any prohibitory wording there. My understanding on reading it was that the court had left the formulation of declaratory relief to the parties (which will presumably be followed by some kind of Tomlin order, to stay further proceedings for enforcement of an actual injunction). Thus, the court is relying on the custom that the Crown always honours declaratory reliefs. This means that Theresa May could defy the court and would not be in contempt, but to do so would in practice be constitutionally unthinkable.

          Many years ago, Kenneth Baker (once met him, very nice man) was found in contempt of court in his capacity as Home Secretary. I can’t for the moment recall the exact details of why it happened, but the court was able to find him in contempt only because he (or his department) had been explicitly instructed to do a specific thing, which he then did not do. I don’t think that is the case here.

  • Apropos…

  • “The opposing argument is that the European Treaties are unique, so far as they directly confer rights on British citizens. For example, it is the European Treaties that give British citizens the right to bring cases before the European Court of Justice, for the interpretation of the general rights and obligations created by our membership of the European Union. Even if all these rights and obligations are to be re-enacted into our domestic law, withdrawing from the Treaties abolishes the right of access to the European Court of Justice.”

    The people were asked directly and in the majority rejected the EU and all the “rights” it confers. Parliament is ultimately just a bunch of career politicos elected through a far less representative system, so why should it get to opine on this at all?

  • A refusal to support a Brexit vote equals an automatic no confidence vote.

    May can not stay in power saying “I would give you Brexit but those nasty Judgeboys and my own MPs won’t let me”. She would be an automatic joke for the rest of her term.

    Both the Torys and a large non-London slice of ZaNu know that imposing EU tyranny after promising to abide by the result of the 23rd June equals millions who want to see the colour of their insides.

    The Tory party –as Sean has so rightly observed on so many occasions are cowardly scum. The EU can’t do much to them but their constituents can.

    The vote will get through Parliament.

    And –as North’s Blog commenters observe–this ruling establishes that Parliament is also sovereign over EU dictat as well.

    • [quote]”And –as North’s Blog commenters observe–this ruling establishes that Parliament is also sovereign over EU dictat as well.”[unquote]

      I agree Parliament is sovereign and is supreme over EU institutions, whose directives must be ratified in the national legislature, but I don’t agree that this latest ruling establishes this. It has always been the position that Parliament is sovereign and supreme. The ruling simply states that the decision as to whether to initiate the Article 50 notification, withdrawal and negotiation process can only be made by Parliament. I suppose Parliament could decide not to allow the government to trigger Article 50 at all, but Parliament can do that anyway by simply repealing the European Communities Act 1972 now. The ruling adds nothing in that regard, it simply stating that, in the opinion of the court, the Crown does not have the prerogative to serve the Article 50(2) notice without the consent of Parliament. The question of parliamentary sovereignty viz. EU law is left undisturbed.

      • I do not believe Parliament is supreme, not since Lisbon. This was formerly known as the “Constitution for Europe”, remember (‘Europe’ not the EU). Lisbon is now our constitution. Lisbon says we can’t just up and leave – Lisbon says we have to ask permission via Article 50. This is certainly the view the ECJ will take. As I have said elsewhere, all roads marked ‘exit’ will ultimately lead us into a head-on collision with the ECJ. Lisbon decrees that we shall be subject to ECJ jurisdiction until the negotiations are concluded. How is Parliament sovereign if it is subject to the ECJ?

        • Article 50 doesn’t state, or mean, that we need the EU’s permission to leave. I think the confusion here is between leaving, which in and of itself does not need the EU’s permission, and the terms of leaving, which if negotiated, must have the agreement of the other 27 Member States via the European Council and, I think, also must have the consent of the European Parliament (though I may be mistaken about that).

          Article 50(3) means that we could leave without having negotiated an agreement, but we could also leave without engaging the EU at all about leaving as Parliament remains supreme, notwithstanding the ECA and the various amending Acts (the Miller ruling affirms this explicitly).

          • Then why are we still in?

            • Because:

              (i). A political decision has been taken to negotiate and follow the Treaty.
              (ii). As Dr. North says on his blog, to withdraw immediately would have had disastrous consequences (though personally I still think we should have left immediately).

  • When Mr Heath press-ganged us (the House of Commons) into the EU he disregarded English law. Under our constitution he is not permitted to do so. It is treason. However, by having a “majority” in the Commons he “over-ruled” the law. Theresa May also has a majority. She can,by the above precedent, under our “democratic” system disregard the law, tell the EU to get stuffed and repeal ECA 1972. The government giveth and the government taketh away, “rights”. That is “democracy”. The rule of Law went out of the window with “democracy”. I shall be going to the Winchester Declaration on just that matter 19th November, Winchester Guildhall..

    • Indeed; stuff them.

  • I have read the ruling myself, and regrettably I think it is correct in law and correct constitutionally.

    I do think the judges are incorrect on one point of detail, when they say that Article 50 is irreversible (though to be fair, that started as a submission from the parties, based on common ground among the lawyers). An Article 50 notice could be withdrawn by agreement between the Member States. There is nothing in Article 50 to prevent this. However that does not change the conclusion that Article 50 would have the effect of changing domestic law. While an Article 50 notice in and of itself does not guarantee withdrawal as the negotiation period can be extended, it is the Crown acting through the executive, not Parliament itself, that would ratify such a decision for the UK as Member State. Hence, the logic must be that to allow the Crown to decide to serve an Article 50(2) notice and trigger the negotiation process is to take the matter fully outside the remit of Parliament.

    The counter-argument made by the Secretary of State, that Parliament would have its say on ratification of any withdrawal agreement, is weak given the provisions of Article 50(3), which state that the withdrawing state secedes automatically after the two year period. Thus, the court’s logic here is that to allow Crown prerogative to extend to serving Article 50(2) notice would completely remove Parliament from the picture – or at least, this must be assumed given the way Article 50(3) is drafted.

    For these reasons, and taking into account the non-binding status of the referendum, I agree that from a legal and constitutional point-of-view, the Article 50(2) notice can only be served with the consent of Parliament, which is the sovereign and supreme body.

    As far as I can see, the only real argument that the government could have on appeal is a constructed argument that the Article 50(2) notice does not in and of itself affect domestic law and thus is on ‘the international plane’ and therefore a matter for the Crown entirely. But that does not seem a logical argument to me, given the trap-door contained in Article 50(3). The fact is, if you allow the Crown to serve the notice without obtaining the consent of Parliament, then Article 50(3) means you are completely removing the matter from the legislative field and disprivileging Parliament, which from a British constitutional perspective makes no sense at all.

    This does not look promising. I think if I were a government lawyer in this situation, I would emphasise the fusion of powers and that Parliament retains the ability at all times to hold the executive to account and make the government answerable, and can address the Crown to dismiss executive Ministers. I would also emphasise Parliament’s ability to pass its own legislation to repeal the European Communities Act in any manner and on whatever qualified terms it likes, thus mitigating any ‘rights’ diminution that may arise from a realisation of the proviso in Article 50(3). However, none of this looks promising.

    I still think we will leave, but the terms will not be to our liking on here.

    • Another unreadable green ink reply. It would be advisable for a character limit to be imposed on comments.

      • Translation: I don’t like it when people have a different view to my own.

      • By the way, I’ve been looking through that paper of yours. For reference: http://www.libertarian.co.uk/sites/default/lanotepdf/legan053.pdf

        In it, you make the rather startling claim that failure to fulfill an oath is perjury.

        I’d be very interested to know what your authority is for this assertion.

        • I think I may have referred to Coke’s view that only oaths in judicial contexts gave rise to legally pursuable actions. I haven’t read the paper for some time.

          • Yes, but your assertion is that failure to fulfil an oath is perjury. You seem to offer no support for this in the paper other than your own bare assertions.

            Then, in this thread, you refer to something called ‘judicial perjury’. As far as I am aware, there is no such thing.

            You seem to have plucked all this out of thin air. Therefore, I do find your comment above rather galling. This reminds me of something once told to me by an English university law professor: apparently, according to him, in any undergraduate law exam, a significant minority of the students can be relied on to simply make the law up, which in some instances even extends to inventing cases.

            I, at least, base my analysis (such as it is) on the law as it is.

            I may privately agree with everything you say, but what use is any of it, if it is nothing more than opinion? I may have an opinion on thermodynamics and say that any result based on my view will falsify all recognised behavioural laws, but it’s of no use to anybody unless I can support it.

            • Tom, I will assert that killing someone with malice aforethought is murder. You may disagree, but the very definition of murder is precisely that. Failure to fulfil an oath is perjury — it is what perjury is. I pointed you to Coke’s comments on perjury in the court setting. He argued that oaths of office of ministers and others could not lead to perjury charges. For many centuries, the courts have held that only in the court setting can perjury give rise to actions. A juror, a witness or a judge in court all take oaths that are actionable. Have you looked up Coke’s comments on this? [silence] Green ink conversations do not solve anything. If you comment – comment after reading Coke on perjury. By the way, your website seems to me to support Neo-Nazism, so I’m wasting my time with you.

              • I for one am finding this debate most interesting and informative – I feel it would be better to keep focussed on the issues rather than venture into Neo-Nazism. That is another subject for another day!

                • Alas, I find this debate, as with many debates on here, more vexing than interesting and informative.

              • [quote]”Failure to fulfil an oath is perjury — it is what perjury is.”[unquote]

                The basic problem here is that your understanding of the law is flawed. Perjury is not failure to fulfil an oath. It never has been. And I’ve read your paper and there’s nothing in it to support your claim.

                You quote Coke. I am not sure your interpretation of what he states is accurate, but even if it is, it doesn’t support your position anyway. Your interpretation seems to hinge on one sentence, where Coke states: “As if an officer committed extortion, he is in truth perjured, because it is against his general oath….”, but the context of Coke’s remarks is unclear and the meaning depends on whether he is referring to the breach of an oath in the sense of forswearing an oath or more broadly breaking an oath in some way.

                Let’s suppose you have interpreted the passage correctly, Coke was not making a binding statement of law. He was stating that a betrayal of an oath could be considered perjury in the broader sense, but he also states it would not be perjury in law, merely an aggravating factor of an actual crime – so even if your interpretation is correct, we’re back to square one.

                If you wanted to prosecute the Miller judges for perjury, you would not be able to rely on Coke’s view, because as Coke himself states (assuming your interpretation), you would need to demonstrate that the judges had committed perjury in the criminal sense, as per the relevant statute – which you can’t.

                You now state: [quote]”A juror, a witness or a judge in court all take oaths that are actionable.”[unquote]

                Where is your legal authority for this assertion that a breach of an oath is actionable in its own right? Assuming you can produce such an authority, very well, we can then see what the action would be. It may be that breach of an oath is actionable, but you are asserting that it is actionable in perjury. My contention is that you are wrong because you are forgetting two vital elements in the offence of perjury (and indeed, most other offences), which is act and intention. In the matter of perjury, these elements have always been required going back to the Star Chamber. Indeed, if I understand correctly, it is the reason the Star Chamber formulated the offence of perjury in the first place, due to the need to ‘prove’ not just that the witness (or juror, as it may have been then) had taken the oath, but that there had been a material untrue statement, and that this material untrue statement was false (i.e. made in a malicious state of mind).

                Simply breaking an oath in a judicial context is not actionable or prosecutable, and while for all practical purposes I would concede this is hair-splitting, in the context of this exchange, the distinction takes on significance as it goes to the fundamentals of our legal system, which is adversarial (the court is a neutral arbiter, the judge is merely the referee and cannot interrogate the accused; allegations of perjury must be proved by the Crown or private complainant) as opposed to inquisitorial (court is, in a manner of speaking, the prosecutor and the judge can interrogate the accused). Of course you may be able to point to exceptions to this, but even if you can, I would maintain that this is a broadly fair characterisation of things.

                • As a layman, I may observe that in every criminal case where a defendant who pleads not guilty takes an oath to tell the truth, and is subsequently convicted, he is surely guilty of committing perjury? Yet nobody is ever charged with such.

                  • Perjury is the making of a false statement under oath about a matter that is material to the proceedings.

                    A defendant in the scenario you mention may be telling the truth but may still be guilty. His denial in the face of guilt does not necessarily imply perjury. It depends on the questions that are asked of him.

                    He might be committing perjury if he did the crime and the following exchange occurred:

                    Crown: So, Mr Miller, you are an avid fan of Richard Blake and all his historical novels?

                    Hugh Miller: Yes, I used to buy them all as they came out. I particularly enjoyed The Sword of Damascus.

                    Crown: Yes, so did I….ahem….And you used to comment on his blog and get into heated arguments on there?

                    Hugh Miller: Yes.

                    Crown: With Tom Rogers about Article 50?

                    Hugh Miller: Yes, but I didn’t threaten him. I just called him a Euro-fanatic.

                    Crown: Yes. And you killed Richard Blake?

                    Hugh Miller: No, that was David Webb. It was nothing to do with me at all.

                    That would be perjury, since you are making a false statement having committed to the oath. The false statement would be your denial that the death of Richard Blake had anything to do with you.

                    Your accusation against David Webb would not necessarily be perjury, as that statement is more speculative and it could be argued that he might also have had something to do with it.

                    Of course, having been convicted of murder, any prosecution for perjury would likely be pointless. There have been cases where an acquitted defendant, protected by double jeopardy, has been subsequently prosecuted for perjury in relation to the original offence. There was a famous case in the United States along those lines, where the murderer was caught confessing on tape following his acquittal. As he could not be put in double jeopardy, he was instead prosecuted for perjury on the basis that he had made certain specific denials under oath. He was sentenced to 10 years.

                    • “Who Killed Richard Blake?” An interesting title for a book!

                    • Nah, you’ve got the wrong guy – my name is Hugo not Hugh – Simple case of mistaken identity 🙂
                      Talking of US justice, I am amazed at the routine prejudicing of court cases by law enforcement officials. Watching a programme on the Kennedy assassination the other evening, I saw a tv reporter ask the Dallas police chief, immediately after Oswald’s arrest (which was for shooting police officer) whether they had got the right man. Without hesitation the police chief replied in the affirmative. I spend a lot of time in Florida and I see this sort of thing all the time. In England, surely this would be enough to scupper the whole trial? This is the literal meaning of prejudice.

                  • I may be mistaken, but my understanding is that there is no concept of ‘sub judice’, as such in most U.S. states. This is mainly due to the First Amendment protections that the media enjoy in that country. However, defendants can rely on other, similar, constitutional protections that are meant to assure fair trials, and which more or less have the same effect as sub judice.

                    Here in England, the sub judice protection was formally abolished back in 1981 and replaced with restrictions on what journalists and the media can and cannot do under the Contempt of Court Act 1981.

                    In the example you give, I highly doubt such a comment from an investigator would be seen as problematic, even in England. This would be so even if it was made following charge or indictment, as any potential juror will realise that the police must hold the view that the defendant is likely to be guilty, otherwise they would not proceed against him.

                    • But ‘Dr’ John Reid got into trouble for exactly that some years ago when he was Home Secretary. If I recall, some Muslim terrorist suspects were arrested, and Reid made some comment to the effect that people could sleep safely in their beds now they had been arrested. Mind you, in the Blair years the distinction between ‘suspected’ and ‘convicted’ seems to have become very blurred.
                      It always jars when I hear anybody in authority talk of a suspect as though they had already been convicted. I know jurors aren’t supposed to be stupid, but when they hear authority figures talk as if an accused is guilty, it may well sway their judgement.
                      For instance, there are now probably people out there who are convinced that I murdered Richard Blake.
                      Having said that, I find it disturbing how many times in America I see people convicted, sometimes of serious crimes including murder, on shaky evidence. Jurors seem to decide on the basis of whether they think he did it, not on the basis of reasonable doubt. I have watched many cases on tv where it is perfectly possible that the defendant is guilty as charged, but it is clearly possible from the evidence that he is not guilty. You just don’t know. And if you don’t know, how can you convict?

                  • Hugo,

                    If you’re referring to the exchange between myself and David Webb, we haven’t dissected anything. All we’ve done so far is go round and round in circles.

                    Regarding the rule of law, possibly you may be thinking of Sir Edward Coke, quoted above, who also famously said [something like]: “The rule of law is the safest shield”.

                • I’m not even going to read a post of this length.

                  • The short version of it is that I believe you have misinterpreted Coke’s statement.

                    Or a longer version – It looks like you’ve taken a small part of Coke’s remarks out of context. The telling phrase is “As if…”, which suggests to me that what Coke was referring to is a situation where a trusted person breaks some solemn professional or fiduciary obligation in the course of committing other offences (in this case, extortion). Coke is saying that this ‘perjury’ is not a crime in its own right, but it would aggravate the offences. Thus, Coke is not really referring to perjury at all, he is just using the word in a broad, generic sense to refer to any sort of lie in a trusted or fiduciary situation.

                    Based on this, you have come to the conclusion that any breaking of oaths is perjury, but there is no support for this. Ergo, your case against the Miller judges collapses.

                    Of course, I admit I can’t be sure about the above because I haven’t read the full passage from which the quote is taken.

                    • For what it’s worth (which may not be a lot) I find the argument by Martin Howe et al compelling, but my knowledge of the law does not go deep enough to counter your argument, so that is all I am going to say about the law.
                      But I wonder whether this, like everything else in Britain, is dictated by politics rather than the law. Of course they may, as you contend, be ruling according to the law also, but that might be no more than co-incidence. Maybe on this occasion the law is on their side, but I wouldn’t be surprised if the primary driver here is political.
                      Until I got involved in this discussion, I thought I had a pretty good knowledge of the law. In fact I still do. But it is clear that wiser heads than mine are a million miles away from agreeing about the legal and constitutional implications of the mess in which we now find ourselves.
                      I do, however, believe that I have very sound political instincts, and I will bet my house that somewhere along the line a mechanism will be found, legal or not, to prevent our leaving the EU.
                      Cast your mind back quarter of a century. Look what happened to Margaret Thatcher when ‘they’ feared she was going to de-rail the ‘Project’. She was summarily dispatched. I remember IDS being challenged in the Commons by Mr Blair that in reality he wanted to leave the EU. “THAT IS A LIE” screamed IDS. The Quiet Man had suddenly become hysterical at this outlandish accusation, even though we all knew it was true. He sounded terrified. It was obvious that this honourable man was lying when he said it. Why? It has always been a condition of being leader of the Conservatives that he or she must support the Project with all their heart. Theresa May has, to my surprise, made some encouraging noises so far, but the notion that she will be the first Conservative leader to break this fundamental principle is simply inconceivable.
                      Remember there is a General Election scheduled for 2020. If they can keep this legal charade running till then, all bets are off.

                    • I haven’t said any breaking of any oaths is perjury; I said the opposite (that Coke denied that all oath-breaking was actionable). I’m unsubscribing from this green-ink email thread. Goodbye.

                  • I think this repeated reference to “green ink” is very uncivil. There is nothing “green ink” about my remarks on this thread, and if you don’t like my comments, then frankly you can lump it. That leaves you with a choice: you can either ignore me or you can report me to the owners of this site on whatever basis you choose, and if they don’t want my comments on here, then I will gladly desist from commenting on here with immediate effect.

                    All I have done is ask you to support your remarks, which include a wild accusation that the judges in the Miller case have committed judicial perjury. This seems to be based on an ancient interpretation of what perjury is combined with your own supposition about the legal quality of the ruling. Your accusation is without any support in law.

                    And you did explicitly state above, and also in your paper, that a failure to fulfil an oath is perjury, which seems to be a bare assertion without any legal authority. As a matter of academic legal history, it might be supportable, but it has no relevance to current law and is actually fundamentally antithetical to the way the English legal system works in criminal cases, as I have already explained.

                    If we were to follow your approach to things, we would be left with the dilemma of how to decide which ancient legal principles to resurrect, which would seem to be a rather selective endeavour. By whose criteria will we embark on this exercise?

                    Of course, I must allow that I may be wrong, but I will never know that from any discussion with you as you don’t seem temperamentally capable of sustaining a debate.

                    • I have found this dissection of the finer points of English law, green or otherwise, quite educational. Ultimately I have to say I feel it will all prove irrelevant, since the EU has a different notion of the Rule of Law than we do.
                      Who was it that said the Law has become a sword for the State rather than a shield for the populace?

  • As I believe I’ve remarked once or twice before, there will be no Brexit. It was never on the cards.

  • There is always the faint but not negligible possibility that the EU will be in such a state of disorganization before long, that rich Latina poseuses, risen without trace, pretending to be British but yet part of the EnemyClass, will not be able to do any meaningful thing to prevent a de-facto Brexit, officially ordained or otherwise.

    I am reminded of AD 411 and the first modern Brexit. I believe it was something to do with “Rome” too.

    • Ah yes, David, King Arthur was for Brexit!

  • Turmoil in the political parties may be actually a good thing in terms of an ultimate realignment of politics. Maybe the court decision will play a useful role in encouraging political instability?

  • I just came across the following on Dan Hannan’s Facebook page. The penultimate paragraph sums up their argument.

    3 November 2016

    When it comes to using the prerogative for “less Europe”, there are implied limitations which do not seem to exist for “more Europe”.

    On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The court has, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union.

    In reaching this decision, the judgment has overturned the accepted understanding about the respective power of the Crown on the international plane to accede to and withdraw from international treaties, and the powers of Parliament to alter the internal law of the United Kingdom.

    The European Communities Act 1972 was a constitutional innovation for the United Kingdom. It linked international treaties directly to the internal law of the United Kingdom by giving the European Treaties and supranational legislation made under them so called “direct effect.” That means that they have force in UK internal law – and therefore alter the content of the law – without recourse to Parliament.

    The judgment argues that this feature of the 1972 Act means that the Crown has no power to withdraw from the EU treaties, because doing so would have the effect of altering domestic law, which only Parliament can do.

    This argument is illogical and does not hold water. There are many acts which the government can carry out on the international plane under the European treaties which have the effect of altering UK domestic law, and in doing so either confer rights on people or deprive them of rights. Whenever the UK representative on the Council of Ministers joins in passing into law a directly applicable EU Regulation then the Crown in using the prerogative power to alter internal UK law without that alteration of the law going through Parliament. This is simply a consequence of the direct effect machinery of the 1972 Act.

    So why should it be OK to have “more Europe” through exercise of the prerogative power, but wrong to have “less Europe” as a result of Article 50 being invoked and the direct effect parts of EU law ceasing to apply within the UK? Nothing in the wording of the 1972 Act supports such a distinction.

    There is a further reason why this decision flies in the face of the obvious intention of Parliament. The Lisbon Treaty, which inserted Article 50 into the Treaty on European Union, was given effect in UK law by the European Union (Amendment) Act 2008. That Act therefore made the Article 50 power available for use by the Crown but did not specify that its exercise would need the approval of Parliament. That Act however explicitly provides for Parliamentary control over certain prerogative acts under the EU treaties, including Article 49 on Treaty revision. But notably, the statutory scheme of Parliamentary control of prerogative power does not extend to notifications under Article 50.

    There has a been a long string of attempted challenges to the use of the prerogative power to extend EEC or EU powers, all of which have been rejected by the courts, sometimes in peremptory terms. However, when the prerogative is used to achieve “less Europe” in order to implement the decision of the British people which an Act of Parliament empowered them to take, it is suddenly found that there are implied limitations on the prerogative power which prevent it being used for this purpose.

    We welcome the decision of the government to appeal from this judgment. We hope that the Supreme Court will apply the law in a more orthodox and logical way, allowing the government to fulfil its promise to the British people to implement their clear decision.

    Martin Howe QC
    Thomas Sharpe QC
    Clive Thorne
    Francis Hoar

    • The answer to the Hannan point is easy. Implementing European laws by decree is enabled by the 1972 Act. Using the prerogative power to withdraw is a matter of Common Law. So far as I can tell, the judges ruled according to the law as it is settled. Rather than blame them, Mr Hannan should blame himself for not having introduced this amendment to the Referendum Act:

      “In the event of a vote to leave the European Union, the Minister shall be at liberty to serve the relevant notice.”

      He didn’t. Nor did any of the other politicians who’ve made a career of Europe-bashing.

      • It wasn’t Hannan’s point – it was from Martin Howe and others – Lawyers for Britain or some such. When you say “Using the prerogative power to withdraw is a matter of Common Law.”, are you saying there is or is not a prerogative power to withdraw.
        Also, with respect, I think 20/20 hindsight is a wonderful gift – who could have foreseen this development?
        I foresee all sorts of roadblocks that will prevent our withdrawal – but I didn’t see this coming!

        • I didn’t see it coming either – but only because I’ve largely given up on following the news. Anyone actually in politics should have thought about how to leave, and this would have been on the of the obvious points.

          As for the use of prerogative powers, only an Act of Parliament can withdraw us, because withdrawal changes domestic law.

          • But surely the various amending treaties also changed domestic law? And they were entered into by prerogative power? I am writing from Florida, where it is 4 am, so I’m not at my best, but I’m sure I can think of some examples if I think about it for a bit. In fact I think you have just destroyed any prospect I may have had of getting back to sleep for the rest of the night 🙂

            • The amending treaties were all given domestic effect by Act of Parliament.

              • Of course – thank you. But that was done retrospectively – after they had been signed. By the same logic, could we not implement the Article 50 process then ask Parliament to vote on the outcome of the negotiations?
                The negotiations can be extended if Parliament rejects the outcome.

                • No. The Acts to incorporate treaties into domestic law were not retrospective. None of the terms was known to our law before it was incorporated. Had Parliament voted the Bills out, that would have caused a diplomatic crisis, but left our domestic position unchanged. Invoking A50 by prerogative power would, other things being equal, take us out of the EU after two years. This is the problem that the blowhard Eurosceptic MPs had had a generation to think through. Don’t blame the Judges. They are following the law as it is commonly agreed. Don’t even blame the plaintiffs. They are only relying on general rights to judicial review. Blame our own leaders. We paid them. We trusted them. They were and are a right bunch of wallies.

                  • I’m not blaming anybody – just trying to understand the niceties of the law. MPs haven’t had a ‘generation’ to think this through however; Article 50 didn’t exist before 2008, and the prospect that it might one day actually be invoked was utterly unthinkable. Right up until June 24th it was just not on the cards.
                    Remember also that we were promised a referendum on the Constitution for Europe. After much vacillation, Mr Blair promised that we would have a referendum “regardless of what happened in other countries”, some of which were due to hold referenda of their own. France and the Netherlands unexpectedly rejected the Constitution, and Blair’s promise was quietly forgotten.
                    I wonder what would have happened if we had voted and rejected the Constitution. The answer of course is nothing. Nothing ever happens as a result of EU referenda. This latest one will be no exception.

      • When I last checked, judges were supposed to rule according to law. I agree that this is what the Miller judges have done.

        It seems that our betters want to blame judges for simply doing their jobs rather than accept that it was their own failure to do their jobs properly that has got us into this predicament.

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