Brexit judgment could be hit for six by those crazy Supreme Court judges, says barrister Britain's exit from the European Union could be guaranteed by the Supreme Court if the government has the cojones to appeal Thursday's Brexit-bashing Divisional Court verdict, says barrister Greg Callus. Speaking after the verdict was handed down in the case against the government, Callus told The Register that although the 23 …
I think your readership would appreciate to know if you have been contacted by Mr Callus offering an "interview", or on what grounds he has been approached.
I do not disapprove of "collaboration" with media as a way to get free publicity, and we have used it ourselves, but personally I prefer to be straightforward about it, and we won't do it unless we are convinced that we can provide useful, knowledgeable, and relevant insight which is at least as useful to the readers and the journalist as the exposure gained from it might be to us.
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I believe it means that judgments in most courts involve the judge(s) hearing arguments from two sides and then deciding which of the arguments is truest/most persuasive and ruling in favour of those arguments. In the Supreme Court, the judges does not have to decide between the arguments put forward by lawyers on either side in the hearing, they can make up their own arguments and decide on the basis of those.
""It's not bound by the arguments the parties put forward," continued Callus, of media and entertainment law practice 5RB"
What does this even mean? And what insight has a media lawyer into constitutional law?"
It means that the Supreme Court can set judicial precedent, in other words, make law, in cases not foreseen by the body of law currently at hand. That said, I do not think that this situation qualifies as there is a quite clear legal status of the referendum, and that is of expensive opinion poll, nothing more.
As for lots of people voting, turnout was 72%, lower than elections pre-1997. It's not unprecedented numbers of people voting.
that the precedent would be one which granted the government a lot of power to overrule parliament in the future
Indeed, difficult to see that being the majority position and pitting the High Court agains the Supreme Court is not a good idea.
The government has other ways around the decision which are probably less fraught with danger. To lose in court twice would almost certainly mean no chance of a majority in the House of Lords and hence no chance of meeting the self-inflicted deadline.
Keep in mind there's quite a lot of MPs - quite possibly even a majority - who want nothing more than to see the government fail to meet its self-inflicted deadline. Or any other deadline.
If they can figure out how to torpedo the whole thing while pinning the responsibility on someone else - anyone else - they'll leap at the chance.
Lengthy arguments before the Supreme Court, missing deadlines, constitutional confusion - it all helps to generate the sort of smokescreen that might give some creative soul the opportunity they're looking for.
Quite possibly, even Ms May herself would be in that category. If she can inspire her "opponents" to take her to court on cases she knows she'll lose... set deadlines she knows she'll miss... make arguments she knows will be shot down... it is just within the bounds of possibility that she might yet pull off the political manoeuvre of the century, which would be to reverse Cameron's brainfart without pissing off the voters - any more than they already are pissed off, at least.
"Quite possibly, even Ms May herself would be in that category."
I see her as in the category of closet Leaver but unwilling to declare on the assumption that they'd lose the referendum and she didn't want to be out of a job. Previously she didn't seem enamoured of anything from the EU that impinged on her old job in the Home Office.
>> it is just within the bounds of possibility that she might yet pull off the political manoeuvre of the century, which would be to reverse Cameron's brainfart without pissing off the voters
Sorry but anything short of a full Brexit, i.e.what I and the majority actually voted for, will piss me off mightily, because it will clearly prove true what I have long suspected, that the self-interests of a few hundred corrupt politicians actually outweigh the will of millions of citizens, so the UK is actually a dictatorship that is only playing a superficial game of being a democracy.
The bottom line is that the majority of votes were for Brexit. Now get over it and do it already.
@ anonymous boring coward
"What? You actually still want Brexit? Even now what it's obvious that there aren't any upsides, just downsides! I'm amazed!"
I am amazed when I still hear things like this. Maybe you truly do believe that but I still want brexit and your statement but applying to remaining is exactly my opinion. So far there have been no upsides shown to remaining and many downsides.
Yes, it sets precedent - and it's worth noting here that the precedent would be one which granted the government a lot of power to overrule parliament in the future. A very dangerous precedent, in other words.
I disagree.
It doesn't really set a precedent, because this is a unique situation.
So unique in fact that the High Court are already creating precedent, by trying to invent law where there is none - because the law in question was badly drafted.
Basically Article 50 says we leave automatically in 2 years if no deal is unanimously agreed to extend it (or make it quicker). It also says that it's invoked by the government in question, in accordance with their own rules.
But when this was put into UK law as part of the Lisbon Treaty (European Constitution MkII), I don't think Parliament bothered to specify what those rules are, as they didn't expect to be leaving.
So the court had to make up the law, as there wasn't any. It's clear that government gets to negotiate treaties, and so negotiating our leaving deal is down to royal perogative. Parliament can advise, and be kept informed, but get no say until there's a final deal done, to put into UK law.
But the court asked, is A50 irrevocable? The government said yes. Once triggered we're automatically out of the EU after 2 years. I'm sure it could be fudged, but only if all other 27 members agree - and probably the European Parliament too. That's unlikely, so we'd be out in 2 years.
Well in that case, the court said, Aricle 50 is effectively repealing the European Communities Act because it inevitably leads to that, once we trigger it. Hence Parliament has to have its say first, as that effectively will be repealing legislation and removing rights from citizens, which must be done with Parliament's assent.
On the letter of the law, the judgement is dubious - A50 isn't changing UK law at all. It's a use of an exisiting treaty power, already created by Parliament, involving treaty negotiation which is a perogative power. However once the court asked if it was inevitable they went with the logical ruling, that it's effectively changing the law. After all, Parliament could refuse to repeal the act taking us into the EU, but what's the point of that if triggering A50 means they've kicked us out?
"It's clear that government gets to negotiate treaties, and so negotiating our leaving deal is down to royal perogative. Parliament can advise, and be kept informed, but get no say until there's a final deal done, to put into UK law."
Not quite. The government can use the Royal Prerogative to negotiate treaties but this case isn't about a treaty it's about the law. Parliament is sovereign. The government needs to work with parliament when it comes to making and repealing primary legislation which is what the European Communities Act 1972 is. It was that which set up our entry into the European Economic Community as it was then, now the European Union. What the High Court said was as this is a matter of primary legislation it is a matter of law that the government does not have the discretion to unilaterally trigger article 50 but must pass an act through Parliament to undo the ECA as well as giving the go ahead for the UK's withdrawal.
"What does this even mean? And what insight has a media lawyer into constitutional law?"
I was wondering the same when he was "introduced". There's no mention of him having any specialist constitutional law training or experience. My initial instinct on reading "Callus, of media and entertainment law practice 5RB" is he's either one of those people who stiff artists in the music industry or spend time sending ;letters to alleged copyright infringers. I mean, if a doctor worked at a paediatric clinic, he'd not really be the first one you'd approach .for an Alzheimers diagnosis.
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When I wur a lad; anybody skilled in media entertainment had a dayjob as head of human relations and events organiser in a Bordello\Brewery enterprise. Yes the bunk-up and piss-up merchants.
I doubt the current crop of far seeing contingency planning politicians could even organise a case of dysentery in a latrine.
The argument that Parliament should be bypassed because the referendum happened because of an Act of Parliament seems to mean "because it's convenient to my agenda". Without reading that act, I can imagine that it doesn't authorise the government to take any action based on the result at all. The government is authorised to continue with the current EU dealings only - i.e. carry on with the status quo.
This is where the fun begins anew: if Parliament doesn't authorise the government to invoke Article 50 then come the 2020 general election expect Farage on TV again, moaning how the will of the people was ignored and you should vote UKIP to carry you out of the EU - on a stretcher if necessary. That would be the counter-referendum. If UKIP wins you all go out (Scotland goes out, Northern Ireland goes out, England builds Trump's wall, Hadrian's wall, and a bunch of new ones too). If they barely get votes this time around you know the people changed their minds.
You are correct there is no explicit instruction in the Referendum Act as to the direction the elected government should take on being given the result. It is framed in best "that which isn't explicitly forbidden is allowed" terminology. There's an awful lot of who can spend what and where though.
You touch on a key point - a 2020 election.
May is currently viewed as an unelected PM, and MPs who supported remaining (the vast majority - 479 remainers vs 158 leavers) while they represent electorates that voted strongly in favour of Brexit are likely to want an election as late as possible so that Brexit slows or stops.
If May does wish to Brexit, this legal case has forced the issue on Parliament deciding, I would expect it to be a conscience vote and that the Tories would lose based on MPs previously stated views. At that point, moving for a vote of no confidence in the government would allow the Tories to trigger an early election and get around the fixed term parliament act.
Based on the current polls and state of Labour/UKIP/LibDem opposition, an early election would benefit the Tories and effectively provide a second referendum to validate Mays current position while swaying MPs who were unsure how their electorate felt.
There's a lot of ifs in that and I'm unsure what May actually wants versus what she publicly says, but an early election may help MPs determine if the referendum was a one off or if they were being given a clear message....
Based on the current polls and state of Labour/UKIP/LibDem opposition, an early election would benefit the Tories and effectively provide a second referendum to validate Mays current position while swaying MPs who were unsure how their electorate felt.
I'm not sure you could take the recent polls as valid indicators. They might be close for a true "general" election, but an election that was effectively a single-issue contest on whether Parliament should respect the referendum result is exactly the kind of curved ball that makes polls useless.
After all, if you translate the referendum result into constituencies, instead of a simple headcount, you get around 70% Leave, almost all in England. In the European elections, which are pretty much a single-issue vote, UKIP does much better, mostly neck & next with the Tories. A similar outcome in a general election, from pissed-off Brexit voters, could completely change the Westminster map.
Although the actual reasons many people gave for voting Leave were:
I hate Cameron
Give the Tories a kicking
The Conservatives ruined my town
I don't have a job
While it's probable that Hammond and May's current approach to leaving the EU will utterly destroy the Conservative Party for all time, that wasn't really the method the voters expected and it's not going to help the jobless or underemployed.
Many != All, or even most.
The polls before and since indicated that at least a couple of million or so 'protest' voted to kick the Tories - well over the margin by which Leave won. A fair few of them were horrified at actually winning.
Many more who blame the EU for actions taken purely by Blair, Brown and Cameron, when the EU was actually holding the UK Government to account and preventing worse.
Yet they voted to cut the lifeline, damaging their own interest.
I find it intriguing that you didn't post your reasons. Would you care to share?
Have they proven false like practically everything on the official Leave campaign flyers?
Has Teresa May laughed in your face by refusing to accept the Parliamentary sovereignty you desired, even going to the Supreme court to insist that she is all-powerful and can do whatever she pleases?
Or something else?
May is currently viewed as an unelected PM
No more so than Gordon Brown and he hung on for ages.
MPs who supported remaining (the vast majority - 479 remainers vs 158 leavers) while they represent electorates that voted strongly in favour of Brexit are likely to want an election as late as possible so that Brexit slows or stops.
MPs won't stop Brexit. They can't. Best case scenario for remainers is that the current lot vote no. All that will see is a UKIP landslide which will then vote yes. In doing so labour will have destroyed itself as a party, because its Northern heartlands would never forgive the betrayal. Corbyn knows this and has publicly committed to triggering A50 when asked to vote upon it.
Based on the current polls and state of Labour/UKIP/LibDem opposition, an early election would benefit the Tories
Doubtless the same thought has occurred to Jez - he'd be wiped out in the election and would, if he refused to step aside, split the party down the middle, quite aside from the lurch to UKIP.
an early election may help MPs determine if the referendum was a one off or if they were being given a clear message....
They've never been given a clearer message. The French, Italian, and German counterparts are likely to be given the same message over the next year or two.
I agree that Parliament must vote, but I don't expect them to actually vote against leaving, that would be political suicide.
However I do think that it gives Parliament some influence over what kind of Brexit we'll actually get, ideally one with full access to the single market, whatever concessions that requires.
I think the only, politically acceptable, way to prevent Brexit is for one, or more, of the major political parties to have a manifesto for the next General Election that promises to cancel Brexit**; if that party then wins, then it should be legally and politically OK to ignore the referendum result.
I detest Brexit, but democracy has to be maintained.
(** Assuming that there's a way to do this, not sure what the rules are once Article 50 is invoked)
There's no dispute that Parliament should get a vote. Just that it should get to trigger A50. Negotiating whatever deal is down to government.
The sad thing here, is there's no space for democracy. Once article 50 is triggered, we're on a 2 year deadline, then we leave. Unless all 27 other members, and the European Parliament agree unanimously. Unlikely.
Hence whatever the government negotiate, we're stuck with. Parliament can vote it down, or we can have a referendum on it, but unless the rest of the EU agree - we don't get it. It's a case of competing democracies.
That's the sad thing for the remainers. The very organisation they want to stay in, is what makes it impossible for us to remaing. They don't seem to want to make that possible.
So the only way to avoid leaving, is to avoid triggering Article 50. Which would be a horrendous offence against democracy - and I don't think the public would be forgiving.
It's sad, as there could be a good compromise deal out there. But circumstances make it almost impossible.
Even if you managed to avoid a vote on Article 50, there is a huge amount of EU legislation tied into the UK legal system which would need new UK laws to determine what to do with, and thus a vote and an Act of Parliament to do something about. It's impossible to enact Article 50 without some vote on something with MPs, even ignoring the EU aspect of this, because triggering Article 50 without some plan to clean up the UK side of things would be nuts and leave the UK in a legal limbo ...
* Note that the current plan of record is "The Great Repeal Act", which actually amounts to "accepting all of the EU always already on the books and worrying about cleaning it up afterwards" rather than actually repealing everything. General legal consensus seems to be that it'll take a couple of decades to review and repeal individual laws (or keep the ones we actually want to keep).
{with apologies to the Clash}
Seems more appropriate.
Inflation is going to rise due to Brexit. Salaries won't. ergo, we won't be better off but just the opposite.
etc
etc
etc
Just when we'd gotten used to the idea of going this comes along.
I am actuallyhappy with the judgement. Running rough shod over Parliament is not right and not how we do things. Some may not be happy with that but that is life and we'll just have to get on with it and not let these little 'impediments' get in the way.
i was always under, possibly a false impression, that countries that stuck together, are stronger, more resilient and least likely to suffer immensely during hard times, share the load of burden and success. Are more stable
can someone explain to me in simple terms, what specific benefits britain would might or will gain by exiting the EU?. to me United is a far better idea
@ drouel
"can someone explain to me in simple terms, what specific benefits britain would might or will gain by exiting the EU?. to me United is a far better idea"
Freedom not available within the EU. For example set our own tariffs with the world. To control our borders allowing us to do what has worked in developed countries- to choose who enters based on our needs. Related to those 2 is the safety of distance from a political project which is failing and critically unstable. And of course freedom from the power grab that is the EU amusingly demonstrated by the banana law which some remain voters seem to think is a lie because it is so unbelievably stupid. The freedom of democracy where votes relating to the EU have typically been ignored if they give the 'wrong' answer. And so on.
On the plus side of remain they have the single market. On balance of that against the down sides is up to people to judge. Which they did. And voted leave.
the banana law which some remain voters seem to think is a lie because it is so unbelievably stupid
It's a lie, because Boris Johnson made it up and it has no basis in fact.
Those other things are all things we could, if we wanted to, manage through the EU, by engaging with Brussels via the means of electing sensible MEPs, rather than sending UKIP fuckwits who seem more interested in claiming that the heart surgeon sat behind them has never done a useful days work in their life (Nigel Farage's 'maiden' speech), or reverting to their early years as schoolyard bullies and fighting each other.
@ Loyal Commenter
"It's a lie, because Boris Johnson made it up and it has no basis in fact."
You really dont have to prove my point. Just because it is stupid does not mean it isnt true.
"rather than sending UKIP fuckwits"
Nope, sorry the UKIP people are the only ones to represent me and 52% of the referendum voters in the EU. We didnt get a choice to be in it so why should we vote for the people you want as MEP's? We exercise our only option of electing the MEP's that represent us.
Isn't it wonderful, the Leave campaign was all in favour of Parliament's supremacy when it suited them. Else what did "Take back control." mean?
Now, when it looks like parliament might actually have the opportunity to influence the way the UK exits the EU, the leavers are all shouting about "Defying the will of the people." What about the 16 million who voted to remain? Or are they now just "Unpersons" whose opinions can be ignored and who are fair game for all the vitriol and bile directed at them by the likes of the Mail and Express?
What about a bit of magnanimity? Or are the leavers so concerned that their "victory" will somehow be stolen from them so that they need to keep attacking those who disagree and who are, after all, still their fellow citizens who will be just as badly affected if things turn sour due to the result of the referendum.
Absolutely.
The "Leave" commentary I read online mostly has all the maturity and nuance of a toddler with an uneaten ice-cream screaming blue murder because their brother just glanced at it.
Leave people: You won. Get over it. Now, pretty please let's have a constructive chat about how we best do this thing you want.
@ Olius
"The "Leave" commentary I read online mostly has all the maturity and nuance of a toddler with an uneaten ice-cream screaming blue murder because their brother just glanced at it."
Then
"Leave people: You won. Get over it. Now, pretty please let's have a constructive chat about how we best do this thing you want."
I actually read the lower section first and thought finally someone who is actually willing to think about the future and discuss real options. Someone willing to consider the outcome in a way to benefit the UK in a mature way. Then I read from the start of your comment.
I suggest you read the remain commentary which typically refers to leave voters as stupid, ignorant, xenophobic etc. It isnt us having to get over the vote, we are sick of tolerating sore losers stomping their feet like the toddler you talk about.
Any time I write a comment about the remain voters working with the leave voters to ensure we are not some xenophobic little island but instead looking at Europe and beyond as we never could before I typically get the toddler. So I am sure leave voters would love to read something constructive from the remain side but the answer usually comes back as 'we dont like democracy, the vote doesnt matter, the gov should ignore the people if they agree with me, only a low percentage voted leave so lets claim its invalid, I dropped my rattle' and so on.
I would very much appreciate a constructive discussion with remain voters, we need them and they need us. Lets ignore the extremists on both sides, those who would cut the island off and those who would sell this country to the Euro.
@codejunkie
Leave voters acting like toddlers with ice creams.
Ollius has a point, try reading anything from the news sites of the tabloids and try to find anything not doing it.
Most common thing I have read is the insultive "you lost get over it". Then the term "Remoaner". And they have to cheek to moan about being compared to toddlers, if they want to be treated as an adult, act like an adult.
@ MJI
"Ollius has a point, try reading anything from the news sites of the tabloids and try to find anything not doing it."
That is why I was disappointed at his comment. If he skipped the first bit it would have been a fantastic comment and hopefully inspire others to engage on both sides.
I agree. There is equal amounts of igroants on both sides but some like to trott up the high road and look down on others.
Remember the EU constitution farce? Three countries rejected it bit it went through under a different name.
Countries working together is a great idea, the EU had gone to far which is why I voted out.
Another view -not really my own but said to me by a friend- was 'The posh nobs have had a dump taken on them from the rif raf and they don't like it'. I don't subscribe to the class system but I can almost see where SHE was coming from.
Still, Trump might distract us later this month
It's nice to hear someone give an honest reason (that you think that the EU has "gone too far").
My question to you is if you think that a full withdrawal is the answer to your concerns.
Your statement also suggests that at some point the EU had gone "just about far enough". Do you think that some middle ground would be a better solution (i.e. some version of stay in and fix our problems as opposed to leaving entirely)?
Not trying to change your mind, I'm just interested to understand other points of view.
"Your statement also suggests that at some point the EU had gone "just about far enough". Do you think that some middle ground would be a better solution (i.e. some version of stay in and fix our problems as opposed to leaving entirely)?"
The Common Market (EEC) was a reasonable club to belong to, it started to go wrong with the Maastricht treaty really. This is a great shame as, though I was far too young to have had any say about entering, having grown up with the threat of imminent nuclear annihilation it seemed a good thing for countries to increase cooperation.
This latest development is really very interesting as I was very surprised when the rest of the EU immediately pushed for Cameron to activate Article 50 as soon as the result of the referendum was known. As mentioned earlier other EU referenda have been re-run until the 'correct' result has been obtained or simply ignored. It is almost as if they want us to leave...
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