Article 50 Challenge – A Fund Manager’s Revenge

BY JAMIE FOSTER

Today the High Court handed down its judgment in a challenge to the Government’s right to trigger Article 50 brought by investment manager Gina Miller (pictured). In a case that harks back to the days when powerful nobles used the courts to decide the fates of the people beneath them, Mrs Miller used part of her considerable fortune to challenge the deal apparently made with 17.5M British voters. The terms of that deal appeared to have been set in the now infamous £9M Referendum flyer sent out by the Government to all UK households:

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Apparently the High Court believes that this promise was not one the government was in a position to make. For the High Court, “The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses.” This constitutional position was central to the argument made by Mrs Miller’s champion, perhaps the greatest lawyer in the land, Lord Pannick. If Parliament gives us rights, he argued, only Parliament can take them away.

It may be unsurprising that the Government lawyers, Mrs May’s champions in this trial by combat, were outstripped by the peerless peer. Anyone who spends much time at the tournaments held in the higher courts knows Lord Pannick as an adversary whose shield is rarely dented. Nonetheless both the basis of the argument and the decision seem at odds with the reality that the 1972 Act created no real rights in and of itself. It merely passed the duty to make and unmake laws to the EU. The EU created rights that the EU could, of its own volition, and with no reference to the UK parliament, have taken away at any time.

This is particularly odd as the challenge was to Article 50 being triggered, not to the decision having been made to leave the EU. No one appears to be arguing that a majority in the largest turned-out vote in UK political history hadn’t made that decision.

Odder still when one considers that Article 50 (2), the subject of the challenge, states that “A member state which decides to withdraw shall notify the European Council of its intention.” ‘Shall’ is a mandatory. English law has long distinguished ‘shall’ from ‘may’ or ‘must vote on whether to’. Shall means that EU law, currently supreme in the UK, requires a notification be made. There is no provision for the delay that appears to have taken place. There is no provision for a debate on whether or not to. Shall means shall.

So it would appear that the High Court has held that Parliament should ignore its EU treaty obligations and have a vote on whether or not to implement the clearly expressed views of the majority of the UK electorate. The reason for this would appear to be that if Parliament votes to give away the law making powers it was entrusted with by the electorate to a foreign power, no one but Parliament or that foreign power is able to return them.

It will be fascinating to see whether our Government and its shy Remainer leader decides to appeal. It will be equally fascinating to see if the appeal is left in the hands of the Government lawyers who lost the case in the High Court. Perhaps most fascinating of all is the prospect that an appeal doesn’t happen, and that Parliament debates and votes on whether to trigger Article 50. I would predict that the words said and votes cast in such a debate could determine the future careers of individual MPs. Remember when they thought coming out for Remain was in their best career interests? I suspect those days are gone.

Watch this space.

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16 thoughts on “Article 50 Challenge – A Fund Manager’s Revenge

  1. My house is on the market, I have not gone yet. I didn’t express an opinion in the post above. I agree my views don’t carry any weight when I do express an opinion. I lost, I am leaving with my family, I am a bit sad for my country, but it was a democratic vote, I accept the results and we are leaving.

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  2. As you are leaving the UK – or may already have left I find it hard to see why your views should carry much weight.

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  3. No law will be changed a note sent to EU 2 years pass brexit happens. its already built in just send a notice no parl. action needed, already in signed treaties. So why this decision?

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  4. Charles I used precisely the same argument as Lord Pannick: ‘rights held by me can only be handed over by me: *I* am sovereign’
    [substitute Parliament for King and the argument remains the same]

    Fat lot of good it did HIM and fat lot of good it’s just done the Judges involved, who now look like unprincipled fools: note that we JOINED when Heath signed us in, Parliament then approved the TERMS of that accession.
    Same must apply here- May triggers leaving process, at the end of which the terms agreed are passed by Parliament.
    Failing that, May calls a GE in Feb 2017 on whether Brexit happens – and wins 200 seat majority.

    Also note: Article 50 makes leaving take a MAXIMUM of 2 years: it COULD take all of 2 DAYS: no free movement = WTO-only rules (with reciprocal tariffs – so none to begin with, any imposed by one side are reciprocated).
    Something the commentariat seem to ignore: absolutely NO-ONE outside Brussels wants anything BUT a truly FREE Trade Agreement and such a FREE trade deal requires no debate, legislation, regulation or interference in what is a 100% FREE TRADE arrangement.
    WHY would any govt wish to screw over consumers by imposing any rules, limits, tariffs etc AT ALL?

    Liked by 3 people

  5. “Apparently the High Court believes that this promise was not one the government was in a position to make.”

    I’m not sure it means that – it just means they have to implement it through parliament (if it involves changing laws)

    The Government might say “we will ban X” – they are entitled to say that even though it means in practice “parliament will ban X” with a bill introduced by the Government.

    That’s what any of their manifesto commitments which involve changing or making laws entail.

    Liked by 1 person

  6. If they voted with their constituencies wishes as of the 23rd June then we would be out. If they vote according to the current wishes of their constituents on the basis that the NHS doesn’t get £350 million a week and marmite gets more expensive then who knows! Maybe MPs will try and conduct constituency level polls to gauge current sentiment?

    Liked by 1 person

  7. I say let Parliament vote – the Government will win that vote anyway – as an Act of Parliament would be required, as for the Lords, they too can be included, but there is the Parliament Act the Government can rely on.

    Also the Government could, if it felt unsure about the numbers, align the final commons vote on the matter as a confidence method, thus activating a General Election.

    So many combinations, so many possibilities so many opportunities.

    ps It’s Judgement Jamie *winks*

    Liked by 1 person

  8. Speculative but…

    What if the government does not make an appeal or losses and we end up with Article 50 going to MP’s

    There will be an argument that each MP should vote in accordance to the views of the people in their own constituency.

    If this is the case and every MP voted with their constituencies wishes – How would the numbers stack up? We we be in or out?

    Liked by 1 person

  9. As a proud Remoaner I will take what solace I can from this ruling. I have to agree that this is a temporary setback. There will be something forced through parliament and leaving will be the outcome, but it gives those of us who have been voted off our island a little more time to pack our bags and go.

    Liked by 1 person

  10. Well said Jamie. I am watching the space closely with my beady eyes.
    You might usefully have added that we went into the Common Market on Crown Prerogative so we ought reasonably be able to leave by the same door.

    Liked by 1 person

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