back to article Brexit may not mean Brexit at all: UK.gov loses Article 50 lawsuit

The British government has lost a legal challenge against invoking Article 50 of the Lisbon Treaty, which would be the first step towards Great Britain leaving the European Union. The judgment in R (Miller) v Secretary of State for Exiting the EU was handed down at the High Court on Thursday morning, sending shockwaves …

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  1. DavCrav Silver badge

    "The country voted to leave the European Union in a referendum approved by Act of Parliament. And the Government is determined to respect the result of the referendum."

    Well, grand. But in the UK, the Executive doesn't get to enact domestic legislation on a whim, backed by referendum or not. The legislation passed for a referendum could have, but explicitly did not, state that the referendum was binding, merely advisory. Thus standard procedures apply, and legislation such as A50 need to be voted on by by Legislature. What they do is up to them but, you know, they were elected as our representatives to decide on UK law and they will.

    It's the only legal option. We wouldn't want the Government to override Parliament and use Royal Prerogative to push domestic legislation, that way lies dictatorship.

    1. Chris Miller

      No-one doubts the sovereignty of Parliament, in particular their power to remove an executive of whose actions they disapprove. But democratically elected representatives need to think very carefully before overriding the democratically expressed will of the people who elect them.

      As for the unholy combination of merchant bankers and unelected judges who achieved this result ...

      1. Dan 55 Silver badge

        It was an advisory referendum which is used to steer government policy, not a legally binding referendum. So the government can draw up a Brexit bill according to the referendum result and parliament can reject it. It's not difficult to understand or particularly non-democratic. It'd probably end up bringing the government down if parliament rejected it though.

        The UK is however stuck in this position of the EU saying "no negotiation until Article 50 and then you're gone in two years" and parliament having something to vote on. By the time there's a bill, it'll too late to turn back should the rest of the EU so decide.

        1. Anonymous Coward
          Anonymous Coward

          "By the time there's a bill, it'll too late to turn back should the rest of the EU so decide."

          See : The Scottish cross-bench peer who wrote Article 50 - the procedure by which the UK would leave the EU - believed it was "not irrevocable".

          http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37852628

          1. Anonymous Coward
            Anonymous Coward

            not irrevocable

            "The Scottish cross-bench peer who wrote Article 50 - the procedure by which the UK would leave the EU - believed it was "not irrevocable"."

            If he's correct, then any negotiations with Europe are a waste of time. They'll refuse to make the slightest concession, in the hope of persuading the UK not to go through with it.

        2. Dr Stephen Jones

          "not a legally binding referendum."

          But it is a morally binding promise: sovereignty was handed to the people for this decision (and this decision only).

          1. Anonymous Coward
            Anonymous Coward

            "But it is a morally binding promise"

            The correct next step, given the margin of 'victory', was to call a general election where all parties would set out their position and the people would exercise their democratic choice. If the new majority government was elected on a "Brexit means Brexit" platform, then that would be the will of the people.

            1. Anonymous Coward
              Anonymous Coward

              That would be fun, electing government based on one and only one question, not to mention you might have to vote the complete opposite of your beliefs because your local mp is standing in the opposite camp.

              1. Mookster
            2. JohnMurray

              Good idea.

              Three ways:

              Lose a vote of no confidence

              A two-thirds majority of the entire HoC

              Revoke the fixed-term act

          2. Anonymous Coward
            Anonymous Coward

            <quote>... morally binding promise ...</quote>

            Like the £350 million per week to the NHS?

          3. smartypants

            Morally binding what though?

            The only thing you could claim is that we should leave the EU. But there is *nothing* about on what terms.

            Even if you accept the result as a clear mandate to leave the EU (I dont), it is sickening to see a government claiming the right to make up for themselves what the terms should be. What right have they got to subvert parliament about that decision?

            None,as has now been judged.

            Hopefully this is the first sign of sanity after a summer of shame.

            1. rh587

              Re: Morally binding what though?

              What right have they got to subvert parliament about that decision?

              As a remain-voter, I do feel obliged to play devil's advocate. The government have not claimed the right to make up the terms. They can't. If we leave the EU, we will need to repeal the European Communities Act, and an Act of Parliament can only be repealed *drum roll* by another act of parliament!

              This entire case has absolutely no bearing on the manner of our leaving. It is solely about whether the government can invoke Article 50 without parliamentary approval, which is an entirely different thing to setting the terms (which would require some sort of ratifying statute legislation - including the repeal of the EC Act - which Parliament would then get to see).

              1. Dr. Mouse Silver badge

                Re: Morally binding what though?

                If we leave the EU, we will need to repeal the European Communities Act, and an Act of Parliament can only be repealed *drum roll* by another act of parliament!

                Also playing the "what if" game: The vast majority of sources before this court case was filed (in fact, before it started) said that triggering A50 was irrevocable. If so, then triggering A50 would mean that the ECA would effectively be nullified by the government's decision*.

                If A50 can be backed out of, as some have just started saying, then the use of the Royal Prerogative would seem appropriate. This question has not been definitively answered, though.

                * Actually, the European Law on this issue states that it must be triggered in accordance with the countries law/constitution. Therefore, without an Act of Parliament, the EU may be able to argue that it hasn't been correctly and lawfully triggered and bring Brexit to a halt. Surely it's worth taking it to Parliament to avoid that highly embarrassing situation, isn't it?

                1. Chemist

                  Re: Morally binding what though?

                  "If A50 can be backed out of, as some have just started saying,"

                  Even the author of Article 50 is suggesting it can be canceled !

                  And as I've noted before -

                  “there is nothing in Article 50 itself one way or another; it does not say

                  that you can retract or, once invoked, that you cannot retract. So it is left

                  to the lawyers to have those enjoyable disputes to sort it out.”

                  http://www.publications.parliament.uk/pa/ld201617/ldselect/ldconst/44/44.pdf

                  http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/13804.htm#_idTextAnchor008

                  1. Dr. Mouse Silver badge

                    Re: Morally binding what though?

                    Even the author of Article 50 is suggesting it can be canceled !

                    Yes, he is... Now.

                    Before this case started, the majority of those expressing an opinion on it were saying it couldn't.

                    If there's even a chance that it is a one way process, the Royal Prerogative cannot be used, as it potentially overrides an Act of Parliament.

                    The sensible thing to do would be to get the courts (probably including the ECJ) to rule on whether it is possible to back out of it. Otherwise, assume it's not possible, and get Parliament to approve it.

                    1. Chemist

                      Re: Morally binding what though?

                      "Before this case started, the majority of those expressing an opinion on it were saying it couldn't."

                      The first ref. I gave was from 13 September 2016 by the Select Committee on the Constitution

                      1. Dr. Mouse Silver badge

                        Re: Morally binding what though?

                        @Chemist: From the first ref. you gave. This supports my position: We don't know for certain, we'd better assume we can't back out.

                        13. It is unclear whether a notification under Article 50, once made, could be unilaterally withdrawn by the UK without the consent of other EU member states. In the light of the uncertainty that exists on this point, and given that the uncertainty would only ever be resolved after Article 50 had already been triggered, we consider that it would be prudent for Parliament to work on the assumption that the triggering of Article 50 is an action that the UK cannot unilaterally reverse.

                        1. Chemist

                          Re: Morally binding what though?

                          "From the first ref. you gave."

                          From the second they suggest that it's probably down to the lawyers/courts. However the fact that the author himself suggests that it's reversible weights quite a lot with me.

                          Other people have suggested since the ref. that Art.50 should be reversible but they've been hard to find in the mass of noise on the subject.

                          On the other hand if it isn't reversible that would suggest that we should be extremely cautious with invoking this article as we are undertaking a huge gamble on the basis of the 'advice' from some very dubious characters and against the advice of almost everyone else.

                          1. Dr. Mouse Silver badge

                            Re: Morally binding what though?

                            the fact that the author himself suggests that it's reversible weights quite a lot with me

                            I give it some fair weight myself. However,

                            1) He had not said so before this case was brought. I don't think he even had by the time this case had finished, and the judge was considering his verdict.

                            2) Just because they guy who wrote it thinks it's reversible doesn't mean it is. It would be down to a court to decide. As we probably won't find out unless we have to challenge it, it must be assumed that it's not.

                            Therefore triggering A50 overrides an Act of Parliament, so can only happen by an Act by our constitution.

                            1. Chemist

                              Re: Morally binding what though?

                              "Therefore triggering A50 overrides an Act of Parliament, so can only happen by an Act by our constitution."

                              I'm happy to have Parliament oversee any invocation of Art 50 but I don't see how Parliament can agree/disagree to the final terms of exit if it can't be reversed.

                              1. Roland6 Silver badge

                                Re: Morally binding what though?

                                I'm happy to have Parliament oversee any invocation of Art 50 but I don't see how Parliament can agree/disagree to the final terms of exit if it can't be reversed.

                                I would agree that the text of Article 50 only seems to takes account of a member state's "constitutional requirements" in the way a member state reaches its decision to withdraw. And thus once Parliament gives the Crown/Executive/government the authority to invoke Article 50, Parliament seemingly has no further role to play. However, it could be argued - and I suspect some will in the coming months/years - that Parliament's agreement is necessary part of the "negotiate and conclude an agreement" - even though Parliament will be asked to accept the agreement or walk away with no agreement...

                              2. Paul Shirley

                                Re: Morally binding what though?

                                "I don't see how Parliament can agree/disagree to the final terms of exit if it can't be reversed."

                                The assumption there is the UK has any control of the final terms. If the current crew are left in full control the EU have no reason to waste time on trade negotiations, 'hard brexit or no brexit' isn't a threat, it's a cold statement of how incompatible Mays team goals are with any deal acceptable to the EU27. Someone needs to bang heads together and inject a wider base of opinion into the brexit planning and looks like parliament is best placed.

                                They'll still be busy negotiating the mechanics of divorce long after the 2yr deadline passes anyway.

                                1. Chemist

                                  Re: Morally binding what though?

                                  " 'hard brexit or no brexit' isn't a threat,........ "

                                  I understand that - it just seems that no-one in government does. On the other hand how can they use a wider range of opinions when they are likely to have just 2 choices ?

                            2. Roland6 Silver badge

                              Re: Morally binding what though?

                              "However the fact that the author himself suggests that it's reversible weights quite a lot with me"

                              Well I can see how the author can suggest that an invocation of Article 50 could be reversed. However, from my reading of Article 50, the only sure way explicitly allowed for in the text is for the "Withdrawal arrangements" to be no withdrawal for an indefinite period, with the unanimous agreement of the European Council and the Member State (the UK in this instance).

                              As for a unilateral withdrawal of notification...

                              Thinking further, I wonder if the EU might actually like to have the UK dangling in a protracted Article 50 limbo, that gets extended every few years..., since whilst the UK is subject to Article 50, it can't participate in the European Council (Article 50 clause 4) and can be kept in line by not agreeing to renew the extension...

                        2. Paul Shirley

                          Re: unilaterally revert A50

                          All A50 has to say about the issue is that to rejoin the EU, states must apply like any other new candidate for admission. That's about as far as you can get from a right to cancel. Right to leave then beg to get back in is more honest.

                          In reality if the EU27 unanimously agree nothing is forbidden. Cancelling remains a possibility, cancelling unilaterally not so much. Either way no court should assume that the UK has a right to cancel.

                          I think there's a bigger issue here that the referendum is an instruction to parliament, not the executive. Parliament should have set policy then instructed the executive to start work. We have a very evil tail wagging the dog right now, without a clear mandate and deliberately avoiding seeking one, taking advice or asking the public what brexit actually means.

                          1. Anonymous Coward
                            Anonymous Coward

                            Re: unilaterally revert A50

                            "All A50 has to say about the issue is that to rejoin the EU, states must apply like any other new candidate for admission. "

                            See http://forums.theregister.co.uk/forum/containing/3018374

                            & http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37852628

          4. localzuk

            @Dr Stephen Jones

            No it wasn't. As there wasn't legislation making the referendum binding, it left sovereignty entirely in the hands of Parliament. This could all have been avoided if the referendum had been binding, but it wasn't, as the bill would never have passed through Parliament, as MPs would not have given up their power so easily.

            1. Pen-y-gors Silver badge

              @localzak

              It could also have been avoided if the referendum bill had recognised that major constitutional changes require a clear and definite mandate for change, not a majority of 1. It should either require a two-thirds majority (common throughtout the world to change constitutions) and/or a clear majority (55%) of the electorate (not just voters) supporting a change to the status quo.

              We've had similar conditions on past referenda in the UK.

          5. Chris Harden

            A promise made by, as it turns out, someone who didn't have the authority to make that promise.

          6. Anonymous Coward
            Anonymous Coward

            "Moral" and "Promise" ??

            We are talking about politicians here

            1. Triggerfish

              Re: "Moral" and "Promise" ??

              Not sure how talking about moral right considering the amount of lies in the campaigns is appropriate.

          7. Anonymous Coward
            Anonymous Coward

            a morally binding promise

            A morally binding promise made by a politician... I was actually convinced Brexit was going to happen until you came up with that description of the referendum.

          8. Anonymous Coward
            Anonymous Coward

            "But it is a morally binding promise"

            But that would imply the government HAS morals.

            Sorry, I should probably say that implies that the government as an entity is capable of having corporate morals.

          9. LionelB

            "... sovereignty was handed to the people for this decision (and this decision only)."

            Was it? I don't remember seeing that on the ballot paper.

            We live under a parliamentary democracy, and for good reason. What if the death penalty were put to referendum? I suspect there's a fair chance that there could be a yes vote. Put simply, "the people" (and I include myself in that rabble) are too fickle, inconsistent, irrational, ill-informed, venal, easily swayed, susceptible to mob-mentality and potentially downright vicious for profound decisions affecting the wellfare of the nation to be put to one-off public ballot. We elect representatives to parliament to make such decisions on our behalf (and as we know, parliamentarians are wise, even-handed, well-informed, uncorruptible, and have the good of the people in their deepest hearts). Oh, and we have a judiciary to make sure parliament acts within its constitutional powers.

            Brexit should never have been put to referendum in the first place - that was an act of madness by a weak prime minister presiding over a divided government.

          10. CrazyOldCatMan Silver badge

            But it is a morally binding promise

            Morally binding? You mean like Manifesto promises?

            Heathrow extra runway anyone?

        3. Roland6 Silver badge

          The UK is however stuck in this position of the EU saying "no negotiation until Article 50 and then you're gone in two years" and parliament having something to vote on. By the time there's a bill, it'll too late to turn back should the rest of the EU so decide.

          Err no! What this judgement means - and it likely the Supreme Court will concur, given the evidence, is that the EU has to reject any A50 application by the UK government until such time as the UK government can show it has satisfied clause 1 of A50:

          1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

      2. Anonymous Coward
        Anonymous Coward

        " [...] and unelected judges who achieved this result ..."

        A representative democracy needs checks and balances. The judiciary are one of those counterbalances. The Royal Prerogative may be necessary for critical situations like declaring war - but in more measured situations then it is the sovereignty of Parliament itself that takes the decisions.

        Do you want a position like Poland? Their ruling party is set on eliminating any judicial counterbalance that stops them implementing the social dogma of the conservative Roman Catholic bishops.

        1. Anonymous Coward
          Anonymous Coward

          It is acceptable for the judiciary to take an stand against the will of a democratically elected government or a democratic referendum. It's also understandable why judges need to be appointed by the governments despite the fact that it's frequently not impartial.

          However, the judges do not judge the laws based on their political merits or their viewpoint, but may only rule whether a proposed or effective law is in conformance with other enacted laws, particularly with the Constitution.

          it is not acceptable for the judicial branch to be obstructionist because they personally oppose the government (or the will of the people). It's a breach of the separation of powers. And that's also fundamental to understanding the situation in Poland.

          Do you want a position like Poland? Their ruling party is set on eliminating any judicial counterbalance that stops them implementing the social dogma of the conservative Roman Catholic bishops.

          [One word of comment: It's our ruling party, not their ruling party, you made a couple of grammar errors specific to Polish native speakers.]

          Say what? This is probably the stupidest summary of the so-called crisis in Poland I read, given that the head of the Constitutional Tribunal in Poland is much more conservative than the ruling party line.

          I would like to remind you that the situation started eleven months before the general public sponsored bill to limit abortion even started. The only position from the government was that it would honor bill proposals from the public and not automatically reject them in or before the first reading (whereas the previous government rejected four public bill proposals despite over a million signatures for one of them).

          The Polish Constitutional Tribunal has issued statements which are against the Constitution itself, such as assuming non-constitutionality of passed government bills and vowing to scrutinize them (so what, did they not scrutinize them before?). There is a rule that all passed bills are assumed to be constitutionally valid and effective unless they are proven to be against a specific constitution article. And providing that article 2 is extremely broad, it's possible to question literally every act passed by the Polish parliament.

          Let me offer a counterpoint: The head of the Constitutional Tribunal in Poland is now questioning the will of the elected government that has legally gained over 50% seats in the parliament despite having the media massively against them.

          1. Anonymous Coward
            Anonymous Coward

            [One word of comment: It's our ruling party, not their ruling party, you made a couple of grammar errors specific to Polish native speakers.]

            One word of comment: if the poster was not Polish, then it is indeed "THEIR ruling party", not "OUR ruling party."

            I'm also trying hard, but failing to find the grammar errors.

            1. Maty

              [One word of comment: It's our ruling party, not their ruling party, you made a couple of grammar errors specific to Polish native speakers.]

              I found none either. Perhaps you meant 'grammatical errors'?

          2. Tom Paine Silver badge

            It is acceptable for the judiciary to take an stand against the will of a democratically elected government or a democratic referendum.

            Of course it is, because laws passed by Parliament always override the whims of the government of the day. There needs to be a word for the mingled amusement and horror of this morning's front pages, where three papers have screaming front page leads calling for, in effect, an elected dicatorship -- for the PM to have the right to unilaterally enact law without Parliament, and to overrule the judiciary whenever existing law turns out to be inconvenient. I think we all know where that ends up.

            I expect there's a word for it in German, and possibly Russian.

      3. Jess

        Democracy? My arse.

        If it were democracy, Brexit would mean what was asked on the Ballot paper. (Leave the EU, not leave every associated organisation that doesn't require EU membership too)

        If it were democracy the Nations that voted against it would not be being dragged out against their will.

        And that is all before you even think about the lies that got the result.

        1. Anonymous Coward
          Anonymous Coward

          Re: Democracy? My arse.

          and actully denying the right to vote for 2 million British Citizens overseas, the majority actually living in Europe as European citizens.

          1. heyrick Silver badge
            Mushroom

            Re: Democracy? My arse.

            "majority actually living in Europe as European citizens"

            As one of them, you have no idea how pissed I am that a bunch of stupid people voted to drag the UK into this mess because they believed the lies of Nigel and Boris and The Express...

      4. Anonymous Coward
        Anonymous Coward

        > As for the unholy combination of merchant bankers and unelected judges who achieved this result

        As opposed to the will of the hordes? :-)

      5. Cynical Observer

        In the word of many a Brexiteer... You Lost, Get over it!

        As for the unholy combination of merchant bankers and unelected judges who achieved this result ...

        Did you read the judgement? Linked for your convenience.

        In particular #92 to #94. The judges looked at what was the intention of the European Communities Act of 72 and their interpretation is that it was explicitly crafted to prevent the executive riding roughshod over Parliament.

        So the things that can be taken from this....

        The law makers of old were bloody good at their job, ensuring that what they desired to happen was safeguarded appropriately.

        The government of today needs better lawyers - their case was dead before the claimants even started

        The UK parliament is sovereign - it can and will hold the executive to account.

        And finally - from the noises on various corners of T'Interwebs..... Democracy is only convenient to some people when it delivers the result that they want.

        I'm off to buy popcorn - this one has months on it yet.......

      6. Dr. Mouse Silver badge

        No-one doubts the sovereignty of Parliament, in particular their power to remove an executive of whose actions they disapprove. But democratically elected representatives need to think very carefully before overriding the democratically expressed will of the people who elect them.

        As for the unholy combination of merchant bankers and unelected judges who achieved this result ...

        As has been stated by others, the judiciary are not "overriding the democratically expressed will of the people". They have rules that, by our own constitutional law, enacted by Parliament through the will of the people, Parliament must approve triggering A50 for us to leave the EU.

        It is likely that Parliament would approve it, as doing anything else would be seen to be "overriding the democratically expressed will of the people". It would cause outrage. However, no "overriding the democratically expressed will of the people" has taken place, yet. In fact, the judiciary are upholding "the democratically expressed will of the people" by ensuring the Government can't just overturn legislation brought in by Parliament. It is maintaining the sovereignty of Parliament.

        1. Mark 110 Silver badge

          Parliament will demand to know what the governments negotiating position for Brexit is before they approve trigger Article 50. If they don't like what they hear they won't endorse triggering Article 50.

          That in all probability will trigger a general election. Possibly a second referendum.

          1. Paul Shirley

            "That in all probability will trigger a general election"

            More immediately parliament now has influence to insist on a more considered, saner negotiation plan, instead of leaving it in the hands of extremists in secret meetings. If May and the 3 brexiteers don't play ball parliament could probably get away with rejecting their plan and requiring amendments at least once before going nuclear with an election.

            They aren't going to veto brexit but now have the chance to push for a genuine 'good deal' instead of the 'worstest deal possible' we're currently being dragged towards by extremists.

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