The Article 50 "Brexit" Appeal ~ a note

Updated 15th November.

The government's appeal in the Article 50 Brexit case has now been formally lodged with the Supreme Court.  Read the Supreme Court's announcement.  All 11 Justices will sit on the appeal.

The case under appeal is the decision of the High Court in The Queen on the application of (1) Gina Miller and others; (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union.   Here is the High Court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

The High Court held that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

The Supreme Court

The High Court's decision in Miller - Collection of materials

"Justice is not a cloistered virtue: she must be allowed to to suffer scrutiny and respectful, even though outspoken, comments by ordinary men" - Lord Atkin - Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 (PC).

On 3rd November, the High Court handed down its judgment in a case that, for ease of reference, we may just call Miller - Here is the court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.  The court concluded that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

It follows from this conclusion that Parliament will have to somehow authorise the triggering of Article 50 and there are reports that a legislative Bill is being drafted.  The court was considering the process which, as a question of law, should apply to the triggering of Article 50.  The court was definitely NOT considering whether Brexit is desirable or not because that is a matter entirely in the political sphere.

A jewel beyond price

The judges are now "Enemies of the People" according to a headline in the Daily Mail 4th November 2016.  This is because the High Court decided that Parliament must authorise the giving of notice that the UK has decided to leave the EU.  The headline disgusts me.

It does not matter whether one thinks that Parliament should be involved in this absolutely vital decision or whether it is in order for Ministers to give the required notice under "Royal Prerogative" powers without seeking any authority from Parliament.  Legal opinion on that differs.  The point is that British judges are independent and are charged, under their judicial oath, to carry out their duties "according to law" and "without fear or favour."  The judges were asked to decide a point of constitutional law and they discharged their duty in the full knowledge that the decision would be unpopular in some quarters and that it would attract severe criticism from a number of notable politicians and others who ought to know better.

An independent and fearless judiciary is a jewel beyond price.  It is our duty as citizens of the United Kingdom to stand up for that principle.

Brexit litigation - the High Court judgment

Updated 4th and 6th November - lots of opinion - see links to 21 articles at the end.

The claimants succeeded in their argument that Article 50 may not be triggered without the further involvement of Parliament. So held the High Court in M and Santos v Secretary of State for Exiting the EU.  See the court's full judgment via Bailii.

Previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

It is to be noted that the government (via its lawyers) accepted that the matter was a proper one to be heard by the courts and the court was at pains to point out that they were not saying anything about the merits or demerits of a withdrawal by the UK from the EU.  At para. 5 of the judgment, the court said:

Brexit - the Article 50 litigation

The High Court will hand down its judgment in the "Brexit / Article 50" litigation at 10 am this morning.

Whichever way the litigation goes, there is a possibility of an appeal to the Supreme Court though an appeal is not inevitable.

Article 50 of the Treaty on European Union (TEU) sets out the process by which a member state may leave the European Union (EU).  Article 50 first appeared in EU law in the 2009 Treaty of Lisbon and the article has never been tested previously in any court.    The article requires that the member state makes a decision to leave in accordance with its own constitutional requirements.  Having made a decision, article 50 requires that the EU be notified.

Inquiry into Orgreave 1984 ruled out

18th June 1984 saw a massive confrontation between striking miners and the Police at Orgreave, near Rotherham, South Yorkshire.  Previous post - Litanies of lies - Orgreave - Hillsborough.

In November 2012, South Yorkshire Police referred itself to the Independent Police Complaints Commission (IPCC).  Developments relating to that referral may be seen on the IPCC website -  IPCC - Orgreave Coking Plant referrals.

In December 2015, a legal submission was given to the then Home Secretary (Theresa May MP) asking for either an independent panel (similar to that used in relation to Hillsborough) or a public inquiry. 

R v Johnson and others ~ Post Jogee "joint enterprise" appeals

Addendum 10th November:

Northern Ireland - R v Skinner and others [2016] NICA 40.

Background:

The Criminal Appeals Act 1968 section 18 imposes a 28 day time limit on application to appeal against a conviction but the court has power to permit "out of time" appeals.

The Act also specifies the grounds for allowing an appeal - Criminal Appeals Act 1968 section 2.  The appeal must be allowed if it is "unsafe."

In February 2016, the Supreme Court handed down judgment in R v Jogee - previous post 18th February  - where the court affirmed that the mental element for secondary liability is intention to assist or encourage the crime.  Foresight as to what another may do did not amount, as a matter of law, to intent to assist but it was evidence from which, together with any other evidence, intent could be inferred.   The court unanimously, put the law back on the footing which stood before Chan Wing Siu v The Queen [1985] AC 168 (Judicial Committee of the Privy Council) and  R v Powell, R v English [1999] 1 AC 1

It was to be expected