Was the Brexit Referendum legally binding? Supreme court deliberately leaves a gap in the covers.
Peter Harris
Barrister at Overseas Chambers. French & British national. Helping other lawyers, taxpayers and advisors in cross border law and tax issues in English and French. Jersey, English +U K, French, EU law. and taxation.
I have been consistently posing the question since the Televised "decree" statement and the leaflet published by the Cameron Government.
Their Lordships made the point page 4 of the judgment handed down today at 10.30
The run-up to this prorogation
7. As everyone knows, a referendum was held (pursuant to the European Union Referendum Act 2015) on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis. Immediately after the referendum, Mr David Cameron resigned as Prime Minister. Mrs Theresa May was chosen as leader of the Conservative party and took his place."
"Technically", the Supreme Court was not asked to rule on the legality of the Government using the Crown Prerogative in international Treaty matters to outstep the Statute creating a merely consultative Referendum. Have Jolyon Maugham QC and Gina Miller been barking up the wrong tree? Is there time or even a procedure available to have the article 50 Notice judicially revoked?
But see also §57 of the judgment in which their Lordships say "Whether or not this is a good thing is not for this or any other court to judge. The people have decided that. "
It would probably be politically imprudent for the Supreme Court to hit a forward drive through the covers off its own wicket, Lord Major's sense of cricket being in play, but their Ladyships and their Lordships did not need to mention it .....
Barrister at Overseas Chambers. French & British national. Helping other lawyers, taxpayers and advisors in cross border law and tax issues in English and French. Jersey, English +U K, French, EU law. and taxation.
5 年....?That would be a contradiction of Parliament's own claims to sovereignty over the nations comprising the United Kingdom. The Crown Dependencies' spacific an indeed peculiar autonomy is based upon a fundamental aspect of sovereignty, normally explained as a given in the first lecture in a public international law course in any decent university. That is the holding of sovereignty over land by occupation and if necessary force. Parliament does not hold that in the Dependencies, We have our own customary law and customs, and a system of law which functions under a democratic assembly. Whether the UK Parliament shall not pass will be a question of our assertion of that autonomy, not some obscure magic.? ??
Barrister at Overseas Chambers. French & British national. Helping other lawyers, taxpayers and advisors in cross border law and tax issues in English and French. Jersey, English +U K, French, EU law. and taxation.
5 年However, now that the Party Conference season is to be curtailed, the CDs need to be en garde, if not on the alert, as the hatred and animosity stored up in the current political debacle in the UK is likely to find an outlet in an attempt to usurp our autonomy through such measures as the EU Financial Services Bill amendments proposed by the usual suspects. They are apparently advised by Jolyon Maugham who may feel himself on a roll. It is as clear as crystal, that the United Kingdom's Parliament has never had jurisdiction to enact laws changing ours. Despite waffle to the contrary from the unilateral and biased Killbrandon Report, it has no judicial weight, other than that given it by Lady Hale in Barclays n° 2.? To interpet the custom and convention of the English or UK common law, territorially limited to its four nations as extending abroad would be judicial folly, irrespective of the fiction that Parliament has unlimited powers, within its Realm. .? ??
Private Client Consultant at Russell-Cooke Solicitors
5 年Peter, I think that there are also arguments that the position in Scotland may also be different. Was Art 50 notice in breach of the rights of Scots citizens under the 1707 Act of Union since it was without their consent? MacCormick v Lord Advocate 1953 SC 396 makes it clear that parliamentary sovereignty does not apply in Scotland.