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Brexit Judgement Review
Publication date: 2016-11-10

Brexit High Court Judgement - Right or Wrong?

And How to Reverse It

1. The High Court Decision

On 3rd November 2016, the Chief Justice of England and Wales, the Master of the Rolls, Lord Justice Sales having considered the question "whether the Crown - acting through the executive government of the day - is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union", decided that "the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU (Treaty of the European Union) for the United Kingdom to withdraw from the European Union".

This decision was based on the following logic:

  1. The Crown has prerogative powers in the sphere of international relations, such as to make Treaties with other states, as long as such treaties have no bearing on the domestic law.
  2. The Crown has no powers to alter domestic laws without being specifically authorised to do so by an Act of Parliament.
  3. Leaving the European Union will make the ECA (European Communities Act) 1972 obsolete, as it will become inoperable and lose reasons for its existence.
  4. Removal provisions of the ECA (European Communities Act) 1972, or replacing them with UK equivalents, will represent changes to domestic UK laws.
  5. Giving notice under Article 50 will start a process of negotiations about future relationships between the UK and the EU.
  6. Negotiations about future relationships between the UK and the EU involves alterations of UK domestic laws, which cannot be implemented without express authorisation by an Act of Parliament.
  7. Notice under Article 50 cannot be given without express authorisation by an Act of Parliament.

2. Other Issues Considered by the High Court

The Lord Justice also considered:

  1. The role of the Principle of Parliamentary Sovereignty.
  2. Whether the Referendum Act 2015 was binding on the government or advisory (pp 105-108).
  3. Whether "a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question" (p 106).

These issues do raise important points, which are open to challenge and merit consideration in their own right.

But challenging these points would not change the validity of the decision, because the decision was based not on these points but on the logic as in (1.) above.

3. The Issue that was Not Considered, but is Central to the Case

The case was based on the assumption that the Leave Procedure as stipulated by Article 50 of the Treaty of Lisbon needed to be complied with for the UK to end the EU membership. But the legal, logical, and procedural validity of this clause of the Treaty of Lisbon was not raised and not considered.

Article 50 of the Treaty of Lisbon is the termination clause of the Treaty, but it fails to fulfil the function of a termination clause, and had this clause been drafted correctly, the main assumptions on which the decision was based would have been invalid.

And the conclusion that "the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU (Treaty of the European Union) for the United Kingdom to withdraw from the European Union" would have been wrong.

4. The Reactions to the High Court Decision

This decision of the Lord Justice Sales was welcomed by the "Remainers" as a "victory" and by the "Leavers" as an "act of treason by the Enemies of the People".

The UK Government stated that they will appeal against this decision, and the appeal is expected to be heard in December.

The PM expressed her confidence that the appeal will succeed.

5. Was the High Court Decision Right?

If the UK Government wants to negotiate an agreement about the future relationships between the UK and the EU as part of the Leave procedure, then such agreement will determine some UK Domestic Laws after the UK has left the EU, and such negotiations cannot be done without an express authorisation by an Act of Parliament.

This statement is correct. It is the basis of the High Court Decision. And an appeal to reverse this decision should fail.

But, if to correct the defects of Article 50 and to assume that that the Referendum 2016 was binding on the Government, then the Referendum Act 2015 lays on the Government the Duty and the Powers to perform all the necessary steps to terminate the UK membership of the European Union.

And this means that the UK Government can proceed to notify the EU about the People's Decision to leave the EU without any involvement of the Parliament, because the Parliament has already authorised the Government to do so by RA 2015.

This conclusion is based on the assumption that the Decision of Referendum 2016 was binding on the Government, but LJ Sales contends that it is was merely "advisory".

But the voting public voted in the belief that the Referendum Decision was binding on the Government, and the Government responsible for the Referendum has made no effort to inform the public that the Referendum was, in fact, not a referendum within the linguistic meaning of that word, but a "general public consultation".

From which it follows that the Referendum Decision is binding on the Government, because to assume otherwise would mean that the Government had grossly deceived the Public by making the Public believe that their vote would decide the issue, while in private intending to announce that it is "advisory", if the vote were "leave".

The government has not behaved in that way, but accepted the Referendum Decision as binding.

Thus, if the defects of Article 50 are corrected by replacing the requirements to negotiate an agreement about the post-leave relationships between the UK and the EU with an agreed time period to terminate the current relationships, then the UK Government has the duty and the powers to proceed to terminate the UK membership of the EU bestowed upon it by Referendum Act 2015.

6. The Options before the UK Government

The Government intends to appeal LJ Sales decision.

But the judgement contains a permission for a "judicial review" (p 110).

An "appeal" means that a court decision is wrong. But the meaning of "wrong" is with respect to the submission of the parties at the hearing, not to what happened in the real world. And the main decision, with respect to the arguments presented at the hearing, is right.

To challenge a decision with respect to evidence or legal arguments not presented at the original hearing is not an "appeal", but a "retrial" which the Court might allow at its discretion.

The common reason for a retrial is availability of new evidence, which, if it had been available at the original hearing, would have resulted in a different decision.

Such new evidence is the BBC interview, 3 November 2016, of the author of Article 50 of the Treaty of Lisbon, Lord Kerr of Kinlochard, who was Secretary-General of the European Convention, which drafted the Treaty of Lisbon.

In that interview, Lord Kerr makes statements which prove clearly, that he was incompetent to draft the termination clause, as he has no understanding why such clauses are necessary, and what is their purpose.

If Article 50 is corrected by replacing the need for negotiations about the future with an agreed time to terminate the ongoing relationships as suggested by us in The Earliest Date of the UK Leaving the EU then the UK Government will be able to make submissions to the court on the basis of such change of the leave procedure.

The Government would also need to prove that Referendum Act 2015 bestowed upon the Government the Duty and the Powers to perform all the necessary steps to terminate the UK membership of the European Union.

If the court accepts this argument, then the Government will be able to start the leave procedure by giving the European Council a termination notice as per Sample Notice to Terminate Membership of the EU.

If such retrial is not allowed by the Court and the appeal fails, then the Government will need to present before the Parliament a bill authorising the Government to start the leave procedure by giving the European Council a termination notice as per Sample Notice to Terminate Membership of the EU.

The EU side have stated that they want the UK to complete the exit process as soon as possible and that they would not negotiate about the future until the leave procedure is completed. So, there would be no objections to a "correction" of the defects of Article 50 by mutual consent.

The above is summary review of the Hight Court Decision 03/11/2016. It does not contain detailed reasons for the conclusions. The detailed reasons for the conclusions on the issues involved in this case and other supporting documents are accessible using the following links:

Cases in the English Legal System
(A must read for intelligent appeals)

Parliamentary Sovereignty, the Royal Prerogative and Referendum 2016

Referendum 2016 - Binding or Advisory?

Should Referendums be "Advisory" by Default?

Article 50 of the Treaty of Lisbon - Why Wrong?
(And how to correct it. This is the KEY to the whole case.)

Sample Notice to Terminate Membership of the EU

The Earliest Date of the UK Leaving the EU

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