1. The decision to leave the EU was NOT made by the electorate nor by Parliament but by the PM alone relying on the result of the referendum and for purely political reasons: this is in breach of the U.K’s constitution.
2. Supreme Ct in Miller didn't specify how the UK should leave the EU, and the Government has obfuscated to create an illusion of a Parliamentary decision. However in reality the Notification Act 17 changed nothing. PM always had power to notify once a valid decision was made.
3. Without doubt an intention to leave the EU was birthed after the referendum which was a shock as the party canvassing for this eventuality only ever achieved 12% of votes.
A minor issue was magically blown up to centre stage overnight.
Until now we’ve underestimated the importance of this case (Shindler) which is being brought before the EU General Court (GC). It seeks to declare the Brexit process illegal because people were inappropriately disenfranchised. 1/
Because (as is usual for Theresa May’s administration) the Government has been saying different things in London & Brussels, the case will look very different to the General Court in Luxembourg than it does to us in the UK 2/.
In the UK we know that the Referendum was not the decision, just a consultation that Parliament decided we had to go through first. It didn’t matter too much to the Courts who voted in the referendum because it only had political, not legal, effect.3/
There are 2 theories as to how Brexit may be stopped. The first (Revocation) is that a conclusive decision to leave the EU is not required to commence the Article 50 process & that the UK can unilaterally change its mind. 1/
When agreeing to give permission for a Judicial Review recently on whether Article 50 can be revoked, the Scottish court highlighted points which made our ears prick up.
Firstly they dealt with permission. The government is relying heavily on the fact we brought the claim out of the 3 month rule for Judicial Review. The court makes it clear, matters of constitutional importance deserve exceptional status and should be heard.
Then they dealt with article 50 itself & laid out in sequence how it works. We know parliament voted to pass a bill which gave power to the PM to notify. However that bill contained no decision. Article 50 makes it clear para 1 a decision has to made, next step notification.
Either @abcpoppins is right about #A50Challenge or we have a profound constitutional crisis, b/c it will be determined that Parliament can be tricked by a sleight of hand into giving the PM power to bypass a legally required process, in effect giving the PM power to break the law
The decision process required by #A50 is simply that which separates democracy from dictatorship. Executive decides on policy within its party political perception of national interest, based on evidence, impact analysis, etc. parliament scrutinizes, then legislates if required.
As the EU ref was advisory (confirmed in Miller), this process is not bypassed. The ref result is simply one of the factors in the decision process, but not the only factor. There is scope on how much weight it is given, but not indefinite scope. It must be Wednesbury reasonable
1.#A50Challenge disputes the govt's claims that a 'decision' to leave the EU has been made 'in accordance with [our] constitutional requirements'. The underlying assumptions of that decision haven't been tested in court. THREAD explaining why the ref result isn't a decision #FBPE
2. In 2011 the Parliamentary Voting System and Constituencies Act was legislated during the 1st Cameroon govt. It was unique as it was a 'madatory' referendum. The same administration legislated for the Referendum Act 2015 as an 'advisory' ref; 2011 bound parliament 2015 didn't.
3. The 1975 ref process was different. It was, what's termed as, a post-legislative ref. In other words, Parliament voted for EC membership, then legislated for the Referendum Act 1975. The assent of the people (67% to 33%) then made that result binding; theoretically.
So why do they persist with a lie? B/c the ref was advisory. Brexit was supposed to be May's policy decision, then for Parliament's scrutiny. But Brexit is a stupid policy. May didn't want to own it or have Parliament scrutinize it. Easier to bypass this procedure w *ppl decided*
*Cameron promised to implement* is irrelevant to the legal position. Legislation was only for advisory ref. May overrode the legal status of an Act of Parliament, illegal in itself IMO & bypassed the req't to give notice to EU *in accordance with [UK] constitutional requirements*
The holidays, or perhaps it was a glass of mulled wine, have prompted some thoughts on Brexit and the #a50challenge. While this case rightly questions the validity of the govt's notice pursuant to A50 notice in view of the absence of a decision by Parliament, I think there
may be a closely related but separate and wider issue. That is, irrespective of the lawfulness of the notice, as a matter purely of English constitutional law, would the govt be acting lawfully in entering into an agreement with the EU on the terms of the UK leaving, without 2/n
Parliament having made a decision. Bearing in mind that the matters addressed in phase 1 of negotiations are about to be codified into a binding agreement of some sort, now is the time to consider this question. If, as the SC held in Miller, we cannot be deprived 3/n