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Thursday, November 03, 2016

Justice Thomas' Worst Decision: Brexit (UPDATE: Tillman's prediction wrong)

You can find Lord Chief Justice Thomas' ruling [here]. In addition to LCJ Thomas of Cwmgiedd, the 3-member court also included the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales. 

In other important news, the members of the Reform Club have revolted in regard to the appointment of the organisation's new secretary. [here

I think the Reform Club's secretary will have a longer tenure than the High Court's decision. I predict reversal on appeal by the United Kingdom Supreme Court.

Why? According to the court, triggering Article 50 will have "the effect of changing domestic law", if not immediately, then after negotiations, or no later than 2 years later (the Treaty imposed time limit), should negotiations fail. Crown prerogative cannot be used to modify UK domestic law, and therefore Parliament must weigh in before Article 50 is triggered. 

It seems to me that the court has erred. As long as the European Communities Act 1972 remains in effect, UK domestic law is unaffected by triggering Article 50, even after two years have passed. The UK will still be bound (as a matter of domestic law) by the Treaty of the European Union and by EU directives and regulations even if the UK is no longer a member of the EU. And the only way for the 1972 Act to be repealed or amended is for Parliament to weigh in. Crown prerogative triggering Article 50 does not and cannot effect the content of domestic UK law. 


My reasoning is hardly unique...see Gerard Batten, MEP, High Court judgement a political not legal decision, UKIP (Nov. 3, 2016). [here]

Decision announced by UKSC on Jan. 24, 2017. Gov't must have vote in Parliament before triggering Article 50. See 2017 UKSC 5 (Hilary Term). [Opinion or Judgment of the Court

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

See also 

Seth Barrett Tillman, Two Queries Posted on Conlawprof: Comey, Trump, and the President, The New Reform Club (Nov. 2, 2016, 4:32 AM). [here


Tom Van Dyke said...

It seems to me that the [High Court] has erred.

I predict reversal on appeal by the United Kingdom Supreme Court.

That is more confidence than I have in the Supreme Court of the United States, especially after Hillary Clinton gets done with it.

With zero knowledge of the merits and particulars, I will bet against your prediction, Seth, things being what they are here.

And, apparently, there, if I may believe the Torygraph, which on the whole I do.



Our top judges have become too powerful - we need to rein them in
Lord Kerr and his 11 Supreme Court colleagues are becoming the unacknowledged legislators of mankind and are undermining the rights of our politicians

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