There are so many unsung heroes, thousands, that contributed at different times and in different ways to the achievement of a Leave vote in the Referendum on 23rd June 2016. Now I am not a lawyer (hurrah!). Not that one needs to be to study the law, but there are many who do study it, deeply. Richard North is a name that will be familiar to many and to whom the term “Flexit” can be credited. So much time, so many hours of study and learning – a part played. An acquaintance of mine, NickC, is one such student and has some time ago corresponded at length with Richard North. Freedom and our freedoms are paramount; British Law must prevail once these dark days of Europhilia are behind us. But we are where we are.
NickC has kindly shared his thoughts on the “Gina Miller” case, which others of a ‘legal anorak’ persuasion may wish to share their thoughts on below the line, though as many will be aware – No-one Reads The Comments.
“….The constitutional basis of the court case won by “Gina Miller” is that the government (i.e. the executive) cannot use its prerogative powers to remove “rights” enacted by Parliament. That principle is absolutely fundamental to our freedom under the law. I support it completely. However, The High Court was persuaded by the claimant’s lawyers that the principle defined above was applicable.
The EU “rights” (i.e. rights and obligations) that would be removed by leaving the EU are principally the EU Regulations (because the EU Directives have already been implemented as UK statute, and would not be removed simply by reason of our exit). But the Regulations (that “reside” in Brussels) have by definition never been passed as law by the UK Parliament. The Regulations have only been enabled by the ECA 1972.
Therefore the condition of the constitutional principle is not fulfilled. See Professor John Finnis “Terminating Treaty Based Rights” 26 Oct 2016. The government’s failure to correctly argue the case seems at least partly due to the incompetence (connivance?) of the government’s lawyers.
We cannot leave the EU without repealing the ECA. The ECA can only be repealed by Parliament, and that appears on its own to fulfil the requirement stipulated by the judges that Parliament, not the executive, must decide.
I have long argued elsewhere that we should not invoke TEU Article 50*; and also that we should “patriate” the Regulations as part of the leave process. Theresa May included in her speech (17th January 2017) the line that EU laws would be “converted” directly into UK law in order to provide immediate regulatory continuity. I am thankful that the government agrees with me! The fact that EU laws will be patriated means that (initially at least) no “rights” will be “lost” thereby again complying with the High Court ruling.
In my view Article 50* is a trap because it makes the UK a supplicant, allowing the EU to control the process. Now Remainers are also making use of Art50 to complicate Brexit.
As a sovereign nation the UK is entitled under international law to abrogate a treaty (see Vienna Article 54, for example) therefore it is possible to by-pass TEU Art50. We should give the EU 12 months notice of our leave date, which is ample time to negotiate a trade deal, not least because it can be based on the existing trading arrangements. Repeal of the ECA during the notice period is key to the leave process, removing EU legal supremacy……”
NickC’s explanation of why Article 50 is a trap, was published on Sunday 8th May on Going Postal (but no-one read the comments that day, at least I think they didn’t) *http://www.going-postal.net/2016/05/its-trap-i-tell-you-trap.html