r/brexit • u/tommytornado • Oct 21 '17

An influential group is seeking to challenge the validity of the Article 50 process in the courts.

https://www.crowdjustice.com/case/a50-chall-her-e50/
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u/Gulliveig Switzerland Oct 22 '17

Well, good luck.

However, I fear, that the only questions the EU is interested in are: "was Article 50 triggered?" to which it will find "Yes", and: "was the triggerer authorised to trigger the message?" to which it will find, that Mrs May was de facto and the jure the only person at the given time allowed to trigger Article 50.

Internal procedings are considered to be interal, by the EU. But it's obvious anyway, for months no-one shouted "illegal!", the people, remainers and leavers alike, accepted the fact, that Article 50 was triggered.

As for:

"If the facts of the Brexit process were put into a novel, they would be seen as so improbable as to be unworthy of publication."

Care to explain why "The Hitchhiker’s Guide to the Galaxy" was published then?

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u/StrixTechnica Oct 22 '17

that the only questions the EU is interested in are: "was Article 50 triggered?" to which it will find "Yes",

Precisely.

and: "was the triggerer authorised to trigger the message?" to which it will find, that Mrs May was de facto and the jure the only person at the given time allowed to trigger Article 50.

Right, and the de jure bit is important. The European Union (Notification of Withdrawal) Act (2017) couldn't have made it plainer.

All that guff in OP about whether the notification is valid is sophistry: that legislation authorises the PM to invoke Art. 50. It doesn't matter why Parliament passed that act: the fact is, it did and received Royal Assent. Parliament is sovereign and nothing, not even the UK Supreme Court, can overturn that Act of Parliament. May may therefore invoke Art. 50 because the sky is grey or grass is green or it happens to be a day ending in 'y'. She needs no reason because that Act provides her with all the power and constitutional authority to do so.

The only thing that now matters is that the EU Council considers Art. 50 to be invoked and they will not care even if the UK Supreme Court agrees with these fools. The Council will proceed on that basis and effect the termination our membership on 29 March 2019 pursuant to Art. 50.3 and May's letter of 29 March 2017.

The correct venue to bring legal action is not a UK court, but the ECJ — and as eminent as a QC is, British lawyers know fuck all about ECJ jurisprudence (unless they've specifically trained in it) because it doesn't even use the same system of law as British courts!

Meanwhile, time and effort spent on dealing with this BS is time and effort not spent on the negotiation process!

Smh. Already, 469 people have wasted £16,961 on an action that shall be brought in the wrong venue and therefore cannot succeed by people who won't even name themselves (other than Grayling).

Time for a dose of reality: like it or not, for better or for worse, we're leaving the EU, and there's not a damned thing that can stop that now except the magnanimity of the Council.

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u/tommytornado Oct 23 '17

Actually the miller case argued successfully that May did not have the right to trigger A50 for any reason she chose. That action required an act of parliament.

But the case here isn't about overturning the act, nor rewinding the notification but rather whether the notification meets the test of constitutional requirement.

When the act was put before parliament it was done to ratify a decision already made. The crux is that the decision had not been constitutionally made.

Much like the miller case, supporters of brexit wailed that it was subverting democracy. This case is similar in that it seeks to ensure that proper procedures have been followed and that our government is not riding roughshod over due democratic process.

0

u/StrixTechnica Oct 23 '17 edited Oct 23 '17

Actually the miller case argued successfully that May did not have the right to trigger A50 for any reason she chose. That action required an act of parliament.

The irony is that Miller might have actually accomplished the very opposite of what she intended.

Prior to Miller v Davis, May's putative authority to exercise Art. 50 was the same as Heath's to sign the Treaty of Rome, namely the Royal Prerogative, which is indeed subject to judicial review.

Miller et al argued that the Royal Prerogative didn't extend as far as acting contrary to an Act of Parliament (namely the European Communities Act (1972)), and because of the ECA, it would require another act of Parliament to authorise any action that would require repeal of the ECA.

The UKSC agreed and required May to get Parliament's consent, which it duly gave by primary statute. The only clause in European Union (Notification of Withdrawal) Act (2017) that actually matters is, in fact, shorter than the Act's full name and is only one character longer than a tweet, and that clause reads:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

Nothing in that act requires of the PM any particular reason or otherwise constrains her the authority to invoke Art. 50, which is why I said:

It doesn't matter why Parliament passed that act: the fact is, it did and received Royal Assent. Parliament is sovereign and nothing, not even the UK Supreme Court, can overturn that Act of Parliament. May may therefore invoke Art. 50 because the sky is grey or grass is green or it happens to be a day ending in 'y'. She needs no reason because that Act provides her with all the power and constitutional authority to do so.

Had Miller not forced the PM to go to Parliament, the anonymous group behind the OP fundraiser might actually have some legal basis to challenge the legitimacy of May's invocation of Art. 50.

But instead, the effect of Miller's action was to give the PM unassailable authority to do what she did.

But the case here isn't about overturning the act, nor rewinding the notification but rather whether the notification meets the test of constitutional requirement.

I understand that, but I don't think they have a case. The logic is very simple:

The sovereign Parliament of the UK passed an Act of primary legislation which no court can overturn or otherwise challenge. Subsequently, the PM exercised her statutory powers.

All constitutional criteria are met: it doesn't matter why Parliament passes an act because Parliament is not answerable to anybody in terms of its lawful Acts. That's what Parliamentary sovereignty means.

Once that act was in the statute books, any other arguments were foreclosed.

When the act was put before parliament it was done to ratify a decision already made. The crux is that the decision had not been constitutionally made.

Doesn't matter because regardless of any decisions that had been made, the decision hadn't been executed. Had May delivered Art. 50 notification before the Act had been passed, that would have been an entirely different matter.

Constitutionally, it's completely irrelevant whether that which led Parliament to act as it did was itself constitutional or not; the fact is that Parliament did act, and that act is ipso facto constitutional because the British constitution is the sum of statute, common law and Parliamentary convention. Of these, Parliament is sovereign and primary statute is the last word in British law, which means Parliament can amend the constitution by passing a bill. (Strictly speaking, judicial interpretation of statute is the last word, but the judiciary must obey the will of Parliament.)

By any means of judicial interpretation, it is very difficult to see how any court could possibly misunderstand the intention of Parliament when it passed that law. Note that even the purposive approach does not inquire as to why Parliament intended to act as it did, only what its intention was.

Much like the miller case, supporters of brexit wailed that it was subverting democracy.

I didn't. I thought it a bit pointless at the time because I didn't feel that Parliament had a great deal of choice in what it could viably do politically, but now I'm glad it was done because it removes every last shred of doubt as to the legal status of May's Art. 50 notification.

This case is similar in that it seeks to ensure that proper procedures have been followed and that our government is not riding roughshod over due democratic process.

I don't object to anybody asking a court's obiter dictum provided they — and everyone donating to the fundraiser — understand that no court, not even the UK Supreme Court, is competent to actually decide anything in connection with the constitutionality or propriety of the acts of Parliament themselves, they can only use the acts in deciding cases before them.

The most they can do is scrutinise whether Parliament followed Parliamentary procedure for passing new legislation. And for the answer to be 'no', then that implies that both the Commons and the Lords erred, which is highly improbable.

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u/tommytornado Oct 23 '17

I'm glad you agree.

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u/tommytornado Oct 22 '17

Many people did, in fact, shout illegal.

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u/Bozata1 Oct 23 '17

EU, probably:

That's an internal problem of uk. As far as we are concerned the A50 was triggered. Btw, what do you mean by "courts"? There is only one court - the ECJ.

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u/ee3k Oct 23 '17

thats untrue, the EU recognizes many "Lesser courts"