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Derek_Sy
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I am a little puzzled.

Putting the arguments of Brexit and Remain to one side for a moment - I do not understand the legal basis for the decision.

I understood that it was a Judicial Review. The Courts and Tribunal Judiciaryuk.gov says of Judicial review:


“Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”

Can someone explain (to a legal ignoramus like me) - What the decision or action made by a public body was? I can see plenty in the decision about “the legal question” and about policy - but where is the decision that can be reviewed.

To my (non-legal) eyes - it seems to be just a legal opinion. Doubtless a very distinguished and learned one (not to mention expensive) - but an opinion non the less about what politicians in the government have stated as an intention to do something in the future.

How has this turned into a “decision”

     
ClairemHodgson
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nevip - 04 November 2016 01:07 PM

  The interpretation of the Bill of Rights is, to my mind, no business of the ECJ.

you’re right

but i am a lawyer, LOL

     
ClairemHodgson
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Derek_Sy - 04 November 2016 02:56 PM

I am a little puzzled.

Putting the arguments of Brexit and Remain to one side for a moment - I do not understand the legal basis for the decision.

I understood that it was a Judicial Review. The Courts and Tribunal Judiciaryuk.gov says of Judicial review:


“Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.”

Can someone explain (to a legal ignoramus like me) - What the decision or action made by a public body was? I can see plenty in the decision about “the legal question” and about policy - but where is the decision that can be reviewed.

To my (non-legal) eyes - it seems to be just a legal opinion. Doubtless a very distinguished and learned one (not to mention expensive) - but an opinion non the less about what politicians in the government have stated as an intention to do something in the future.

How has this turned into a “decision”

the decision of the executive, as announced by Theresa May, that Art 50 would be triggered in March and that Parliament would not have a say.

being a decision of the executive, it has to be taken in accordance with the law.  even the prime minister has to decide something in the way the law allows, and following the law.

the judgement is to tell Theresa that it is not for her to decide whether Parliament can have a say or not, since the constitution already says that it is for Parliament to decide.

the point being, of course, as set out in the judgement, that it is statute law that will be changed, and only parliament can decide on any such changes.

     
ClairemHodgson
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and bear in mind that the judgement WAS NOT about whether we leave or not. it was a judgement about the process by which that decision has to be taken.

     
nevip
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What Claire said.

The “action”, is the action proposed by Theresa May that she can use the Royal prerogative to trigger article 50 without consulting Parliament.  The court has said she can’t.  The Bill of Rights of 1689 states that “laws should not be made or suspended without the consent of Parliament”.  As we were taken into the EU by the European Communities Act 1972, counsel for Miller argued, in essence, that the 1972 Act had to be amended or repealed by Parliament before the PM can trigger article 50.  Thus the High court has ruled that the “action” proposed by the PM is unlawful.

     
ClairemHodgson
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had we merely signed the european treaty but NOT imported it into law by way of act of parliament, then it would have been within the royal prerogative for theresa to do what she said.  but, had we merely signed the treaty and not imported it into law, we would not, in fact, have been part of the EU and the referendum would not have been needed…

     
nevip
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Excellent point Claire

     
ikbikb
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On BBC Gov in form of Mr Hunt report they will accept supreme court decision.
Jezzer meanwhile puts the ultimatum that among other things Theresa mus accept the single market and therefore free movement of labour in any Brexit deal or he will force an early election. No response from Theresa on that one yet.

      [ Edited: 6 Nov 2016 at 10:12 am by ikbikb ]
Brian Fletcher
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I’ve read the judgment in full and there are a couple of things that strike me as being questionable. To cut what could be a very long post short; I believe the same Act that took us into the EU has the capability to take us out again without the need for Parliamentary scrutiny.

Section 2 of the The European Community Act 19722 (General implementation of Treaties) effectively gives primacy to EU Treaties. Article 50 is a constituent part of the Treaty of Lisbon and under section 2 it should be able to be invoked by the executive, as the executive has used section 2 to enter into Treaties without subjecting them to Parliamentary Scrutiny. It seems ludicrous to suggest that they cannot pursue a withdrawal from the EU using a section of an EU treaty given legitimacy in the UK under section 2 of an Act which has already passed through Parliament

In the judgment, the judges looked at the purpose of the ECA 1972 as being solely to allow for the addition of rights and the expansion of the EU. They consider that it was not designed to remove rights, therefore during its passing through Parliament, it was never intended it to have this effect. Clearly, the EU has considered this though, and the inclusion of a clause which allows a country to exit is a right arising under a Treaty. Invoking Article 50 would not immediately remove the rights provided by ECA 1972, although admittedly it would become nugatory at the end of the two year period allowed for exit

     
Benny Fitzpatrick
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A vociferous argument in favour of Brexit was that it would restore the sovereignty of our Parliament.

Isn’t it funny how the press are now crying foul because the Judges have upheld the sovereignty of Parliament, against their attempts to set the agenda.

As we remainers were told on June 24th, “It’s democracy. get used to it!”

     
nevip
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Brian Fletcher - 07 November 2016 01:36 PM

I’ve read the judgment in full and there are a couple of things that strike me as being questionable. To cut what could be a very long post short; I believe the same Act that took us into the EU has the capability to take us out again without the need for Parliamentary scrutiny.

Section 2 of the The European Community Act 19722 (General implementation of Treaties) effectively gives primacy to EU Treaties. Article 50 is a constituent part of the Treaty of Lisbon and under section 2 it should be able to be invoked by the executive, as the executive has used section 2 to enter into Treaties without subjecting them to Parliamentary Scrutiny. It seems ludicrous to suggest that they cannot pursue a withdrawal from the EU using a section of an EU treaty given legitimacy in the UK under section 2 of an Act which has already passed through Parliament

In the judgment, the judges looked at the purpose of the ECA 1972 as being solely to allow for the addition of rights and the expansion of the EU. They consider that it was not designed to remove rights, therefore during its passing through Parliament, it was never intended it to have this effect. Clearly, the EU has considered this though, and the inclusion of a clause which allows a country to exit is a right arising under a Treaty. Invoking Article 50 would not immediately remove the rights provided by ECA 1972, although admittedly it would become nugatory at the end of the two year period allowed for exit

I’m not convinced by that.  Section 2 is obviously concerned with the implementation of treaties and provides that where domestic legislation on a particular subject (including primary legislation) narrows or frustrates rights flowing from EU law then EU law prevails.  What section 2 does not do is to give governments a free hand to do what they want and to use executive power to ride roughshod over the law of the land or play fast and loose with their constitutions. 

Article 50(1) is perfectly clear.  “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”  The issue for the domestic court was to decide just what those constitutional requirements are.  That is a fundamental matter of UK constitutional law as such and is a matter for the UK courts and them alone.  Article 50 gives member states (not untrammelled) latitude but makes sure that governments do not deprive their citizens of the protection of their constitutions when deciding whether to withdraw from the EU.

No doubt the Supreme Court will educate us all.

 

 

     
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Benny Fitzpatrick - 07 November 2016 03:47 PM

A vociferous argument in favour of Brexit was that it would restore the sovereignty of our Parliament.

Isn’t it funny how the press are now crying foul because the Judges have upheld the sovereignty of Parliament, against their attempts to set the agenda.

As we remainers were told on June 24th, “It’s democracy. get used to it!”

Nice one Benny.

     
ClairemHodgson
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nevip - 07 November 2016 05:41 PM
Brian Fletcher - 07 November 2016 01:36 PM

I’ve read the judgment in full and there are a couple of things that strike me as being questionable. To cut what could be a very long post short; I believe the same Act that took us into the EU has the capability to take us out again without the need for Parliamentary scrutiny.

Section 2 of the The European Community Act 19722 (General implementation of Treaties) effectively gives primacy to EU Treaties. Article 50 is a constituent part of the Treaty of Lisbon and under section 2 it should be able to be invoked by the executive, as the executive has used section 2 to enter into Treaties without subjecting them to Parliamentary Scrutiny. It seems ludicrous to suggest that they cannot pursue a withdrawal from the EU using a section of an EU treaty given legitimacy in the UK under section 2 of an Act which has already passed through Parliament

In the judgment, the judges looked at the purpose of the ECA 1972 as being solely to allow for the addition of rights and the expansion of the EU. They consider that it was not designed to remove rights, therefore during its passing through Parliament, it was never intended it to have this effect. Clearly, the EU has considered this though, and the inclusion of a clause which allows a country to exit is a right arising under a Treaty. Invoking Article 50 would not immediately remove the rights provided by ECA 1972, although admittedly it would become nugatory at the end of the two year period allowed for exit

I’m not convinced by that.  Section 2 is obviously concerned with the implementation of treaties and provides that where domestic legislation on a particular subject (including primary legislation) narrows or frustrates rights flowing from EU law then EU law prevails.  What section 2 does not do is to give governments a free hand to do what they want and to use executive power to ride roughshod over the law of the land or play fast and loose with their constitutions. 

Article 50(1) is perfectly clear.  “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”  The issue for the domestic court was to decide just what those constitutional requirements are.  That is a fundamental matter of UK constitutional law as such and is a matter for the UK courts and them alone.  Article 50 gives member states (not untrammelled) latitude but makes sure that governments do not deprive their citizens of the protection of their constitutions when deciding whether to withdraw from the EU.

No doubt the Supreme Court will educate us all.

 

exactly.

and the SC will agree with the High Court, since that IS the law of the constitution.

     
Paul_Treloar_AgeUK
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Reverse ferret

     
Brian Fletcher
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nevip - 07 November 2016 05:41 PM

I’m not convinced by that.  Section 2 is obviously concerned with the implementation of treaties and provides that where domestic legislation on a particular subject (including primary legislation) narrows or frustrates rights flowing from EU law then EU law prevails.  What section 2 does not do is to give governments a free hand to do what they want and to use executive power to ride roughshod over the law of the land or play fast and loose with their constitutions. 

Article 50(1) is perfectly clear.  “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”  The issue for the domestic court was to decide just what those constitutional requirements are.  That is a fundamental matter of UK constitutional law as such and is a matter for the UK courts and them alone.  Article 50 gives member states (not untrammelled) latitude but makes sure that governments do not deprive their citizens of the protection of their constitutions when deciding whether to withdraw from the EU.

No doubt the Supreme Court will educate us all.

 

The ECA 1972 is an Act of Parliament, and in invoking article 50 under section 2, through its intended purpose to implement or give primacy to EU treaties and law absolutely allows for the use of executive power; it is entirely within the scope of that Act, and it has been used on numerous occasions with no judicial scrutiny. This Act is constitutionally sound, and is indeed referred to as a constitutional statute in the judgment. Acting within the scope of the ECA is not riding roughshod over anything, it is merely reflecting the will of a Parliament that enacted it.

The HC considered that very point, and had the opinion that the ECA as a one way street for enlargement and addition. They ruled out the possibility that it could lead to possible contraction and subtraction. That to my mind is a very narrow interpretation of the purpose of the Act. As you say, maybe the SC will provide some clarity

In any event, the question before the HC was one of should the invoking of Article 50 be put before parliament. It has been put forward that the Government could put a one clause bill before parliament, allowing for the implementation of Article 50. Almost everyone has said they will not oppose this if it happens, and in the event the SC appeal fails, the process of invoking article 50 will still happen as planned.


On the point of depriving citizens of their constitutional protections on deciding whether to withdraw from the EU - it was those citizens themselves that decided to leave. Most folk did not know that the referendum was advisory, or that there would be any ‘constitutional crisis’ arising out of their vote to leave. The majority in the country voted to leave and understandably had a legitimate expectation that this is what would happen.

     
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Brian Fletcher - 14 November 2016 02:47 PM

The majority in the country voted to leave and understandably had a legitimate expectation that this is what would happen.

Aye, but since no one told them whether that meant “just up and leave with nothing in its place” or “this is the plan for what happens in all these different areas of law”, and bearing in mind that constitutionally parliament is supreme, and that no one had a plan….

the point is that a parliamentary vote on triggering article 50 allows parliament to indicate a view on what form brexit should take, and so on….. and bearing in mind the 1972 act - that is a valid thing to do.

aas the HC pointed out, if it’s triggered with no plan, and no agreement is reached on anything, then huge swathes of law are knocked out without parliamentary say so, and that is not constitutionally valid.

finally, on your point about referenda being only advisory - all the MP’s knew (on both sides of the debate) and it WAS mentioned during the campaign.  but not, i think, by the brexit camp… who said that they wanted everything controlled by our own parliament again…

     
Paul_Treloar_AgeUK
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Excellent post-Brexit blog from Charlotte O’Brien.

Many decisions lie ahead, about free movement and the rights of EU nationals resident in the UK. Experts and academics need to try to re-inject respect for evidence in these proceedings, and remind the State that its role should be to challenge discrimination, not echo it and exacerbate it. It is declaratory discrimination to announce that we don’t want Europeans to come here, to continue to court the misconception that EU nationals are a net economic drain, and that they are benefit tourists. And it is an act of declaratory discrimination to frame law and policy around that notion. At a crucial cross-roads, we should try to avoid plummeting into prejudice-based policy.

Read the whole thing here Brexit, free movement and welfare: we must bring evidence back into fashion

     
Brian Fletcher
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ClairemHodgson - 14 November 2016 04:48 PM
Brian Fletcher - 14 November 2016 02:47 PM

The majority in the country voted to leave and understandably had a legitimate expectation that this is what would happen.

Aye, but since no one told them whether that meant “just up and leave with nothing in its place” or “this is the plan for what happens in all these different areas of law”, and bearing in mind that constitutionally parliament is supreme, and that no one had a plan….

the point is that a parliamentary vote on triggering article 50 allows parliament to indicate a view on what form brexit should take, and so on….. and bearing in mind the 1972 act - that is a valid thing to do.

aas the HC pointed out, if it’s triggered with no plan, and no agreement is reached on anything, then huge swathes of law are knocked out without parliamentary say so, and that is not constitutionally valid.

finally, on your point about referenda being only advisory - all the MP’s knew (on both sides of the debate) and it WAS mentioned during the campaign.  but not, i think, by the brexit camp… who said that they wanted everything controlled by our own parliament again…

Is it possible to have a plan on anything when the powers that be in the EU have stated that there will be no discussion on relations post brexit before the invocation of article 50?

I would be absolutely surprised if any MP would not have understood the fact that the referendum was advisory, but the point is that the general public have no understanding of constitutional requirements. Putting the blame for the lack of understanding on constitutional requirements firmly at the feet of the Brexit camp is a little disingenuous as it suggests that those who voted to leave only took their information and guidance from only one side of the argument.

I don’t see how huge swathes of law are lost merely by triggering Article 50. Most law produced by the EU in any form has been adopted into UK law through statutes and/or rules and regulations. If we leave the EU tomorrow, that law would still have effect in the UK unless they are repealed - and repealing those laws would require a passage through parliament. There are indeed directives that are not adopted but directly effective in the UK through our EU membership, but generally these are related to trade and not to people’s rights. Trade will be something that is to be negotiated in any event. Our exit from the EU has no effect on our commitment to human rights and recourse to ECtHR, and the application of the Human Rights Act in respect of the Convention.

     
Paul_Treloar_AgeUK
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Certainly seems to be far from straightforward in knowing exactly what an exit means or requires from government.

Leaked Brexit memo: Whitehall struggling to cope and no single plan

     
Gareth Morgan
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I think I’ve got the chant for Farage’s Supreme Court demo:

What do we want?
          We don’t know
When do we want it?
            Now

     
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Brian Fletcher - 15 November 2016 11:52 AM

There are indeed directives that are not adopted but directly effective in the UK through our EU membership, but generally these are related to trade and not to people’s rights.

Actually no, they ARE relevant to people’s rights.

For instance, workplace health and safety.  Domestically, the government enacted that (effective autumn 2013) no one can plead a breach of statutory duty against an employer where injured at work, which means people have to plead negligence and use the breach as an example of the negligence.  If, however, the employer is the government, then the relevant directive is DIRECTLY EFFECTIVE as against the government.

there are many other directives to the same effect.

Also, whilst many are effective by way of regulations, they are only effective if the government CORRECTLY TRANSPOSE the directive in question into UK law.  It has been shown on many occasions that that has not happened.

and then there’s things like the Untraced and Uninsured driver’s directives.  There is a european provision to harmonise provision for people injured in RTA’s anywhere other than their home country and/or by anyone other than a home country national.  however, that is not incorporated into UK law by way of regulations, it is in fact dealt with by the MIB Untraced scheme and Uninsured Scheme (two separate schemes).  and again, plenty of cases where the schemes have been found wanting in terms of how they deal with EU law.

and then, there’s issues about benefits and such like, who pays when someone has worked in one country then goes to live in another, and such like.

Oh, and freedom of choice of solicitor - particularly important where people have BTE insurance on their motor or home policies.  the EU says (confirmed in case law, Eschig for instance) that people have freedom of choice, end of.  UK insurers, on the other hand, only formally allow that at the point proceedings are issued…

and so on, and so forth….

and in any event, there still needs to be a plan.

i suppose one can argue that the plan to just have an act that leaves everything in place until we get round to detailed consideration is a plan, but really, that’s not good enough when there is so much at stake. 

at least a broad brush idea of what the government is thinking would be appropriate, with the opportunity for parliament to vote on the same.  Bearing in mind that no one in fact knew what they were voting for save to “leave” and it’s not as if it’s the same as leaving a house and its contents, that you can replace easily enough given the funds…

     
shawn
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A supreme court judge has raised the prospect that Theresa May would have to comprehensively replace existing EU legislation before the government can even begin Brexit in a move that could seriously delay the process.

https://www.theguardian.com/politics/2016/nov/15/supreme-court-judges-views-on-article-50-legislation-anger-leave-campaigners

     
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shawn - 15 November 2016 10:01 PM

A supreme court judge has raised the prospect that Theresa May would have to comprehensively replace existing EU legislation before the government can even begin Brexit in a move that could seriously delay the process.

https://www.theguardian.com/politics/2016/nov/15/supreme-court-judges-views-on-article-50-legislation-anger-leave-campaigners

Have to say, I think Lady Hale has dropped herself right in it, bearing in mind she is going to be sitting on the appeal. She should not have expressed an opinion at this stage, as she has not heard any argument at all ... shame, as she’s a really good judge

     
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a Supreme Court spokesman said:

“Lady Hale was simply presenting the arguments from both sides of the Article 50 appeal in an impartial way for an audience of law students, as part of a wider lecture on constitutional law. It is entirely proper for serving judges to set out the arguments in high profile cases to help public understanding of the legal issues, as long as it is done in an even-handed way.

“One of the questions raised in these proceedings is what form of legislation would be necessary for Parliament to be able to lawfully trigger Article 50, if the government loses its appeal. A number of politicians have raised the same question. Though it was not dealt with explicitly in the High Court judgment, it is not a new issue. In no way was Lady Hale offering a view on what the likely outcome might be.”

https://www.supremecourt.uk/news/lady-hales-lecture-the-supreme-court-guardian-of-the-constitution.html

     
Paul_Treloar_AgeUK
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Meanwhile in a galaxy far far away….the Guardian reports that:

Britain is probably leaving the EU customs union, Boris Johnson, the foreign secretary, has claimed, despite Whitehall warnings that it could seriously harm the economy.

The cabinet minister made the revelation in an interview with a Czech newspaper, despite Theresa May’s insistence that her government will not be providing a running commentary on Brexit.

According to the interview, which was reported in Czech, Johnson said: “Probably we will need to leave the customs union, but this is a question which will be dealt with in the negotiations.”

The move is likely to alarm businesses that move goods to and from the EU as it would mean extra checks at the border.
Johnson is also reported to have said that the idea that free movement of people is a founding pillar of the EU is nonsense.

There was some confusion over the colourful language used by Johnson to dismiss the significance of free movement. His phrase was translated by Czech media as “hovadina”, which was then variously translated back again into English as bollocks, rubbish, tosh or bullshit. However, the Foreign Office could not confirm which word he originally used.

Britain probably leaving EU customs union, says Boris Johnson

     
nevip
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The responses from some have been nothing short of hysterical over reaction and I seriously doubt whether they have even read the entire lecture.  I have.  Lady Hale devotes a mere 6 paragraphs in a 13 page document to the issue and talks in very broad terms, simply summarising the core arguments of both sides, before stating:

“Just before I left to come here, a unanimous Divisional Court held that the Secretary of State does not have power under the royal prerogative to give notice to withdraw from the European Union.  The court held that just as making a treaty does not change the law of the land, unmaking it cannot do so, but triggering article 50 will automatically have that effect. What has to be done instead is perhaps not so clear. But the case is destined for our Court, so I must say no more”.

It was an excellent lecture on constitutional law and one which Lady Hale was eminently qualified and entitled to give, at such juncture in time.  I can understand why eyebrows have been raised in some quarters (and Claire’s point about not having heard arguments yet to be put to the court has force, in my view) but the venom behind the fuss it has raised in other quarters entirely escapes me.

     
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nonetheless, she shouldn’t have done it.  if it was a lecture about constitutional law, the most she should sensible have said was to refer to the recent decision but say she couldn’t say anything at this point.  if only because the SC hasn’t yet confirmed what the law is.  she might, after all, find herself in a minority.  also, it can look as though she has prejudged the issues even if she has not by putting both sides.  but also, she appears to have raised something not yet argued, which is normally done in discussions with counsel during argument.  at least she’s given the parties counsel notice of what she’ll want to hear argument on!

     
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I’m entirely with Claire on this. 

I find it difficult to accept that judges who clearly have a personal view about the rights & wrongs of a case before hearing it so often refuse to stand down from considering it & deciding on it.  They seem not to understand that it is the perception of a conflict of interest which matters, rather than whether there actually is any conflict.  My mind goes back to a well publicised case some years ago involving Lord Hofmann (I can’t recall the subject matter).  From what was said at the time I (&, I think, many other people) considered he should clearly have excused himself from hearing the case - but he didn’t.

So far as the Brexit case is concerned it can, of course, be said that all the judges have a personal interest.  If that is strong enough for it to be reasonable that they shouldn’t hear it, then so be it.  After all, it is a political matter rather than a legal one & the High Court should have refused to hear it on that basis.

The great Lord Denning was renowned for - in effect - twisting the law to arrive at the conclusion he thought right.  I suspect the same thing still goes on.

[Now I’ll take cover, waiting for the flak!]

     
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All leave is cancelled:

Source just told me there might be 2,000 Statutory Instruments that need to be voted thro as part of the Great Repeal Bill - blimey

https://twitter.com/bbclaurak/status/798851141354143745

     
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Derek - 16 November 2016 08:49 PM

So far as the Brexit case is concerned it can, of course, be said that all the judges have a personal interest. 

 

Don’t quite see how you work that out?