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EU Referendum and UK poverty

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Derek_Sy
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Yes, the issue of whether it was wise for the High court to hear the case at all goes some way to answer my query (#121 on 4th November) in this thread.

My own legal experience is limited to FTT & 2TT hearings and I have noticed that on the whole tribunal judges are very picky on which grounds they will give a decisions on. They frequently (deliberately?) ignore the ground where the client has clearly suffered appalling justice and instead, allow the appeal on an (often obscure) procedural matter. Usually with comment to the effect”...... since I have allowed the appeal I do not need to consider ground….” I also noticed that all benefit appeals process are strictly limited to ACTUAL decisions. Neither DMs nor the appeals service will touch anything unless the decision is specified.

This is often irritating to both the client and me, but I have always accepted it as how the appeals process works (in practice that is - not necessarily in law).

I am still puzzled therefore as to why the High Court even heard the Brexit case as a judicial review at all. No actual decision or action had in reality been taken - merely an intention to carry one out on a (somewhat vague) future date. (Being a political “intention” it can, of course be changed at any time)  If the courts can give (binding?) legal judgments on what politicians say they intend to do I struggle to see the point of parliament at all.

From my (lay legal) point of view, an injunction seems more rational. But how could either an injunction or a judicial review be constitutionally coherent with a parliamentary (which includes political) democracy?

Cannot help thinking that either the supreme court decision will either have to reverse a rather long way or we are looking at a serious constitutional row.

............. so i remain puzzled!

     
ClairemHodgson
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Derek_Sy - 18 November 2016 11:36 AM

No actual decision or action had in reality been taken{/quote]

A decision had been taken.  the decision in question was that of the Government to trigger Article 50 in march.

that automatically gives rise to the potential for a JR.  That is because any government decision has to be taken in line with the law, and not irrationally (in the wednesbury sense) and has to take into account all relevant factors and not any irrelevant ones.

The applicant’s view, rightly IMHO, was that the decision in question was not taken in line with the law.

The law (that of the constitution, as it goes) is set out admirably in the HC decision currently under appeal.

  If the courts can give (binding?) legal judgments on what politicians say they intend to do I struggle to see the point of parliament at all.

Its not different to a JR of e.g. a planning decision, which are taken by politicians (either the local council, or the secretary of state) on a planning application.

{quote]. But how could either an injunction or a judicial review be constitutionally coherent with a parliamentary (which includes political) democracy?

again, read the HC decision for the constitutional legal position.  Given that we do not have a written constitution, the law on the consitution is largely set out there - or you could go and read a consitutional law book for a much lengthier exposition.

The bottom line is Parliament, NOT the Executive, is supreme and if the law is to change, the Executive cannot change it.

Cannot help thinking that either the supreme court decision will either have to reverse a rather long way or we are looking at a serious constitutional row.!

The SC will be unlikely to overturn the HC decision, i don’t think (but then of course I do agree wtih the HC’s legal analysis of the constitution of the UK).  The only other points are specific to NI and SCotland.  There had been another case in NI, but it rather depended on the ACt that brought the peace process to legal light.  the UK constitution overrides that (and being as the relevant act was one of the UK Parliament, not the NI Stormont, the UK parliament rules).  and as for Scotland, it depends also on the Act of Union.

Arguments will be made round those issues, no doubt, in the SC.  but it is still clear.

the bottom line is, Parliament makes the law.  That is, if you recall, why Charles 1 lost his head (because he was trying to legislate without Parliament having a say).

The other aspect is that it might, of course, lead to someone proposing we have a written constitution .... a whole other ball game.  but even if we did, it would still be written into it that the Executive has to act in line with the constitution and law in general.

We can’t have people breaching the law just because they don’t like it.

and this, of course, is why statutory language is so important - if a statute (or a written constitution) is not written in clear language, you then have to have the courts decide what the statute in fact said.  One reason why people win their benefit appeals, of course…

 

     
Derek_Sy
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Well Clair knows more than me so I’m just going to have to remain puzzled! (not for the first time)

............So here is my last words on this.

A decision had been taken.  the decision in question was that of the Government to trigger Article 50 in march.

I seem to find that I am unable to comprehend legal constructions.
The “march” referred to is March 2017. Do not see how in November 2016 the date March 2017 can be termed as “was”.

Its not different to a JR of e.g. a planning decision, which are taken by politicians (either the local council, or the secretary of state) on a planning application.

Not different??
Planning decisions are documented, recorded and published - there is therefore no doubt what has been decided and when.
On the other hand,  “potential JR” - the decision is not (yet) even fixed. Though it is justicable and apparently not even a supreme court can expect to overturn it.

 

 

 

     
Surrey Adviser
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We do seem to have a genius for over-complicating things in this country in all sorts of ways!  Over 2000 SIs to be reviewed before we can pass the Great Repeal Bill (what an awful name that is!)?  Individually?  I thought May announced the Bill could simply incorporate the EU legislation into UK law so we could sort out later which bits to keep.  Surely it can’t be beyond the wit of our great legal minds to incorporate the SIs in blanket form in the same way?

My view of the S50 muddle is quite simple.  Parliament is sovereign.  Parliament decided to give the voters the decision as to whether we left the EU or not.  The stuff about it being only advisory is to me just semantics.  If it was intended to be advisory the Act should have said so (it didn’t) and it should have been made crystal clear to voters that that was the position (it wasn’t).  Therefore the decision to leave has been taken and everything from now on is simply putting that decision into effect.  Parliament delegated the decision & it ill behoves them now to turn round & say - in effect - they didn’t mean to.  So triggering article 50 is well within the competence of Government - it just starts the process of implementing the decision which has been taken.

     
ClairemHodgson
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The “march” referred to is March 2017. Do not see how in November 2016 the date March 2017 can be termed as “was”.

The decision was taken in November to trigger Article 50 in March

it is the November decision that is susceptible to JR

re your later post re whether a referendum is advisory or not - they are always advisory in the UK, that is all they can be.  This is also set out in the HC judgement

Personally, i think the act should also have required a minimum voter turnout and a minimum majority (say, for instance, 75% of those voting)

     
Surrey Adviser
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Claire - two different Derek’s!

“re your later post re whether a referendum is advisory or not - they are always advisory in the UK, that is all they can be.  This is also set out in the HC judgement”

We’re back to perception again.  The voters were given the perception that they were deciding the matter.  On something as serious as this that really is incredibly important if it was not to be the case.  Lawyers may know referenda are always advisory but the general public don’t.  In any case, why is it that “that is all they can be”?  Surely Parliament, being sovereign, has the power to decide that a referendum is binding?  Or would the Court over-ride it & say that was unconstitutional?

     
Elliot Kent
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Derek - 18 November 2016 05:46 PM

Claire - two different Derek’s!

“re your later post re whether a referendum is advisory or not - they are always advisory in the UK, that is all they can be.  This is also set out in the HC judgement”

We’re back to perception again.  The voters were given the perception that they were deciding the matter.  On something as serious as this that really is incredibly important if it was not to be the case.  Lawyers may know referenda are always advisory but the general public don’t.  In any case, why is it that “that is all they can be”?  Surely Parliament, being sovereign, has the power to decide that a referendum is binding?  Or would the Court over-ride it & say that was unconstitutional?

It does have that power and exercised it in the AV referendum a few years ago. It chose not to in this referendum.

The thing about referendums is that they are, for the UK constitution, an almost entirely new idea. Nobody really knows where they fit in. The orthodox view is that they are of absolutely no legal consequence unless Parliament says they are - which in this case, it didn’t. On that view, there is no difference whatever between the current situation and David Cameron having woken up one morning and deciding to invoke article 50 of his own accord. Other views have been expressed - suggesting that perhaps expressions of popular sovereignty can authorise executive action in circumstances like this.

I’m not sure its wise to bring popular perception into it given the big red bus but even then, I think the point is that the public has asked that the “Brexit” button be pressed. The court case is concerned with whether the legislature or the executive is in charge of that button - a legitimate question if we accept the importance of the separation of powers. Once the case is resolved, the public can hold whoever wins to account if they don’t, in the event, push the button or if they do and the result isn’t what they’d hoped for.

     
Surrey Adviser
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“I think the point is that the public has asked that the “Brexit” button be pressed”  I would dispute this.  The asking was done by Parliament in passing the Act asking the voters whether they wanted to leave or not.  The voters then decided that they did want to leave.  If MPs as a whole were aware that whatever the voters concluded it was not going to be a decision then their failure to spell it out clearly (or at all) to the voters could even, perhaps, be seen as something of a con trick.

Perhaps the majority of MPs do realise they have to implement the voters decision but I’m not so sure about a lot of the Peers - and how do the voters hold them to account?

I think May knows that Cameron made a fatal error (not the only one!) in making his negotiating position public before he started the negotiations, and she is - quite rightly - determined to avoid that.  The apparent view of the Lib Dems, SNP & others seems to me to betray a naivety which does not sit well with a responsible attitude.

Incidentally, I agree about the big red bus - incredibly stupid and wrong.  But there was (quite rightly) a great deal of flak thrown at them about it at the time.

     
ClairemHodgson
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the other point is, of course, is that even those who voted out don’t really know what out means since no one had a plan.  there are many bits of european law that even those who voted out (ignoring, for this purpose, the politiancs) would i fact be quite happy to keep if they realised that they were, in fact, european in origin….

i don’t think it’s for the executive to decide what that shape of out should look like; it’s for parliament, representing everyone. (I don’t think they’ll not go with out, it’s the plan that needs debating)

     
Daphne
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House of Commons Library briefing on what the Great Repeal Bill would entail -

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7793

     
Paul_Treloar_AgeUK
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Heard this on the radio this morning. Apparently, the UK shouldn’t be leaving the EEA if Article 50 is triggered due to the effect of Article 127 which relates to European Economic Area membership.

Brexit: Legal battle over UK’s single market membership

     
Paul_Treloar_AgeUK
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Guardian also reporting on this.

Jonathan Lis, the deputy director of British Influence, which is planning to bring forward a judicial review, said: “The single market wasn’t on the ballot paper. To leave it would be devastating for the economy, smash our free trading arrangement and put thousands of jobs at risk. Why should people not only throw the baby out with the bath water, but the bath out of the window?”

Brexit: UK government faces legal challenge over single market

     
Paul_Treloar_AgeUK
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Ex-Secretary of State for Work and Pensions IDS spouts forth on the Supreme Court hearing for the Mail.

IAIN DUNCAN SMITH: Why it’s crucial that the judges who could decide the fate of Brexit ARE scrutinised

A barrister responds..

The secret barrister on twitter

     
Brian Fletcher
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Paul_Treloar_AgeUK - 28 November 2016 10:22 AM

Guardian also reporting on this.

Jonathan Lis, the deputy director of British Influence, which is planning to bring forward a judicial review, said: “The single market wasn’t on the ballot paper. To leave it would be devastating for the economy, smash our free trading arrangement and put thousands of jobs at risk. Why should people not only throw the baby out with the bath water, but the bath out of the window?”

Brexit: UK government faces legal challenge over single market

That sounds like a bit of a nonsense to me, because as far as I’m aware, we left the EEA when we joined the EU. Being part of the single market then would be a binary choice. If your in the EU, you are part of the single market; if your not in the EU you cannot be in the single market because that requires some sort of membership. I’m sure then any access to a single market in the form similar as it is now would have to be done under some sort of ‘new deal’.

Personally, I think a free trade agreement would be the preferred route. The EU after all do operate free trade agreements with other far flung areas of the world. There is no reason why this would take any special effort to negotiate as everything we produce is already EU compliant.

     
Jon (CHDCA)
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Brian Fletcher - 07 December 2016 03:59 PM

That sounds like a bit of a nonsense to me, because as far as I’m aware, we left the EEA when we joined the EU.

We left EFTA, not the EEA, I think.

     
Paul_Treloar_AgeUK
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I do like this introduction from Pannick

https://www.youtube.com/watch?v=PXa-hlj12vU

     
Paul_Treloar_AgeUK
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Guardian reports that EU nationals living in Britain should make a file of documents that prove they have lived in the country since before the June referendum, according to the chair of a House of Lords committee.

Helena Kennedy QC suggested collecting together bills, rental or home ownership documents, employment paperwork, or evidence of appointments for those who do not have jobs.

Might make right to reside appeals a bit easier if people have collected all the relevant papers…..

EU citizens should collect proof of living in UK, says Helena Kennedy

     
Paul_Treloar_AgeUK
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shawn
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The judgment in the Supreme Court Article 50 Brexit case is to be handed down on Tuesday 24 Jan at 9.30am ...

https://www.supremecourt.uk/news/access-arrangements-for-24-january-article-50-brexit-judgment.html

     
Paul_Treloar_AgeUK
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Supreme Court find against the Government by a majority of 8 bvotes to 3.

Cue the Daily Mail printing front pages outing the proclivities of the Judges involved and incoherent radio-phone-in programmes with angry callers from Kent and Oldham shouting about “Frustrating the will of the people!!!!!”

Copy of the judgment

     
shawn
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Commons Library analysis of the judgment:

https://secondreading.uk/brexit/brexit-miller-what-next-for-parliament/

     
Paul_Treloar_AgeUK
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Well here’s the Bill in all it’s glory….

whoops, wrong bill

Must have been up all night drafting this one…..

      [ Edited: 26 Jan 2017 at 01:55 pm by Paul_Treloar_AgeUK ]
Elliot Kent
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Paul_Treloar_AgeUK - 26 January 2017 12:20 PM

Well here’s the Bill in all it’s glory….

Withdrawal from the European Union (Article 50) Bill

Must have been up all night drafting this one…..

That’s not the bill - that’s a Private Member’s Bill from Peter Bone MP who was trying to force the governments hand.

There will be a full white paper for the real bill according to the PM (http://www.bbc.co.uk/news/uk-politics-38748634)

Edit:
Ha - I see that the government has actually tabled an almost identical bill (although interestingly it only says the government may give notice):

European Union (Notification of Withdrawal) Bill - http://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0132/cbill_2016-20170132_en_2.htm#l1g1

Sorry Paul

      [ Edited: 26 Jan 2017 at 01:46 pm by Elliot Kent ]
Paul_Treloar_AgeUK
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Thanks Elliot.

Just been reading the explanatory notes EUROPEAN UNION (NOTIFICATION OF WITHDRAWAL) BILL   EXPLANATORY NOTES and they’re hilarious.

The judgment of 24 January 2017 required the Government to complete an additional (and unexpected) step before the formal process of leaving the European Union can commence - unexpected by who exactly?

Due to the nature and content of the Bill, it does not include a sunset clause - ain’t no going back baby

The impact of the Bill itself will be both clear and limited, therefore mechanisms for post legislative scrutiny are not
necessary
- if its all that straightforward, what’s all the fuss been about?

but best of all

The Bill is not expected to have any financial implications - ORLY????

     
Elliot Kent
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Indeed - I would have expected the explanatory notes to simply say “Brexit means brexit”

Elsewhere, Jo Maugham QC has suggested that the bill may be ineffective as a matter of law because it doesn’t actually make or authorise the actual decision to leave per Article 50(1) - it just permits notification of a decision per Article 50(2). - https://waitingfortax.com/2017/01/26/does-the-governments-brexit-bill-work/

And some commentary from David Allen Green: https://www.ft.com/content/0785fb99-6996-3992-8bfc-e9dac92ae484

     
shawn
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shawn
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Some rights-based bits and pieces from the White Paper -

- “We will bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.”

- “We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.”

- “We want to protect the ability to move freely between the UK and Ireland, north-south and east-west, recognising the special importance of this to people in their daily lives. We will work with the Northern Ireland Executive, the Irish Government and the Crown Dependencies to deliver a practical solution that allows for the maintenance of the Common Travel Area, while protecting the integrity of the UK’s immigration system.”

- “Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations ... The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity.”

- “UK employment law already goes further than many of the standards set out in EU legislation and this Government will protect and enhance the rights people have at work. As we convert the body of EU law into our domestic legislation, we will ensure the continued protection of workers’ rights.”

     
shawn
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Attempts to force the government to give all EU citizens in the UK permanent residency after Britain leaves the bloc have been defeated.

The government successfully blocked the bid to add the protections in amendments to the Brexit bill in the House of Commons on Wednesday by 332 votes to 290. Three Tory MPs voted in favour of the amendment – Ken Clarke, Andrew Tyrie and Tania Matthias.

However, the Liberal Democrats said they were confident they have enough support from Labour peers to pass the amendments when the bill is debated in the House of Lords later this month.

https://www.theguardian.com/politics/2017/feb/08/mps-reject-brexit-bill-amendment-to-protect-eu-citizens-in-uk

     
Paul_Treloar_AgeUK
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Blimey. Telegraph reporting that:

Theresa May is next month poised to announce the end of free movement for new EU migrants on the same day that she formally triggers Brexit negotiations.

The Prime Minister is expected to say that EU citizens who travel to Britain after she triggers Article 50 will no longer have the automatic right to stay in the UK permanently.

They will instead be subject to migration curbs after Britain leaves the European Union, which could include a new visa regime and restricted access to benefits.

Theresa May poised to announce end of free movement for new EU migrants next month

     
Gareth Morgan
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Doesn’t that imply that that EU citizens who travel to Britain before she triggers Article 50 will have the automatic right to stay in the UK permanently?