The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.
Before saying anything else, there are three initial observations that should be made about this.
The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.
The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.
The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.
Subject to these observations, what did the Court decide, and what does it mean?
Continue reading A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment
When all else fails, sometimes only fear will do. ‘Though most modern writers and politicians oppose political fear as the enemy of liberty…they often embrace it, in spite of themselves, as a source of political vitality’*.
Fear, both as a basis for argument and a political technique, has been fully in evidence in the EU referendum debate. It has its practitioners on both sides of the campaign. But its most systematic and effective use had been in the strategy adopted by the UK government to argue the case for remaining in the EU.
Until now, this has been facilitated by the law governing the referendum, but as we have entered the last 28 days of the referendum, the same law is now making it more difficult to pursue.
Continue reading EU Referendum – The End of Fear?
The government has announced that the UK will vote on whether to leave or remain in the European Union on 23 June. Aside from that date, here are five other things we learned about the referendum within the last ten days…
Continue reading The EU Referendum – Four Months to Go, Five Things We Learned
The problem with David Cameron’s long-awaited ‘deal’ with the rest of the EU, aside from the fact that it currently exists only as a set of proposals which will require the agreement of all 27 other member states, is that over the last year he somehow contrived to place on it a weight of expectation that it would always be unable to bear.
The proposals, announced by Council President, Donald Tusk, with a heavy-handed Shakespearean nod to the forthcoming EU referendum – ‘To be, or not to be together, that is the question…’ – are bound to disappoint anyone who fancied that they would signal a radical new direction in the UK’s relationship with the wider EU. But that unrealistic expectation also deflects attention from their most important feature.
Continue reading Brief thoughts on David Cameron’s EU ‘deal’