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Friday, 16 August 2019

IS THE REMAINER CASE BROUGHT IN SCOTLAND LEGALLY VALID IN ENGLAND?





IS THE REMAINER CASE BROUGHT IN SCOTLAND LEGALLY VALID IN ENGLAND?

I should start by saying that I am an English Solicitor and not a Scottish one. 

Scotland has a very different legal system to England. Theirs is based upon Roman Law and not on English Common Law.  I am therefore not qualified to answer this important question as a lawyer – with regard to what approach the Scottish courts will take.

However I would say that the Act of Union 1707 is key to understanding which court has the best claim to jurisdiction over our Parliament.  Have a look here (especially at Article 22) >>> http://rahbarnes.co.uk/union/union-of-1707/union-with-scotland-act-1706/

Then I would suggest also having a look at the Judgment in the Gina Miller case where the  Supreme Court refers to the appeals from Scotland, Wales and from Northern Ireland (in paragraphs 126 to 151) >>> https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

The combined result of these legal authorities is that the Parliament of the “United Kingdom of Great Britain” which was created by the Act of Union 1707 is one in which the Scottish Parliament was merged into the English Parliament.  The (British) Parliament then continued on the same English constitutional basis as before.  Thus it is English constitutional practice which is the applicable constitutional law and not the ancient Scottish one.

This is also made very clear by the whole basis of the rest of the Gina Miller Judgment in which the Supreme Court relied heavily on pre-Union exclusively English legal precedents to explain and to analyse how the (British!) constitution works. 

So I would expect the challenge to Boris Johnson to fail in the Scottish courts to the extent that there is any attempt to rely on Scottish constitutional law.  If it does not fail there then it should fail in the Supreme Court. 

An additional legalistic reason why this case should fail is that it is seeking a declaration on something that at the moment is merely theoretical (or ‘moot’) and is not challenging an actual decision that has been taken.

Wednesday, 14 August 2019

Another solicitor's view on the Defend Brexit case



 This is another solicitor's view on our case:-


Section 20(4) European Union (Withdrawal) Act 2018

 


‘A Minister of the Crown may by regulations-
 

amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and amend subsection (2) in consequence of any such amendment’

The language ‘Treaties are to cease to apply’ derive from Article 50 of the Treaty on European Union

 

               Article 50 of the Treaty on European Union



            
  Article 50.1 ‘Any Member State may decide to withdraw from the Union in accordance with

               its own constitutional requirements.’



               Article 50.2 ‘A Member State which decides to withdraw shall notify the European Union of Its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.’



               Article 50.3 ‘The Treaties shall cease to apply to the State in question from the date of entry

              Into force of the withdrawal agreement or, failing that, two years after the notification

               referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’



At the time of drafting and subsequent enactment of the European Union (Withdrawal) Act 2018 the legal default position (in the absence of a concluded withdrawal agreement) was that the United Kingdom would leave the EU on 29th March 2019 at 11 pm. This flowed from the European Union Referendum Act 2015, the result of the 23rd June 2016 referendum for the United Kingdom to leave the European Union, The European Union (Notification of Withdrawal) Act 2017 which conferred power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU (as established by the 2016 referendum), the Prime Minister’s letter of 29th March 2017 notifying the European Council of the United Kingdom’s intention to leave the EU and the provisions of Article 50. 



Accordingly, when enacted and for many months thereafter the definition of ‘exit day’ in the European Union (Withdrawal) Act 2018 was stated to be 29 March 2019 at 11 p.m.



The Prime Minister reiterated on numerous occasions that the United Kingdom would be leaving the EU on 29th March 2019.

 

The power granted to a Minister of the Crown in Section 20(4) European Union (Withdrawal) Act 2018 was extremely limited. It was merely a power to amend a definition in the Act
– the definition of ‘exit day’. 



Furthermore, the definition could only be amended by a Minister of the Crown to ‘ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom.’ In other words, the power granted a Minister of the Crown no discretion or authority to do anything other than record a change of day and time determined by the day and time the Treaties were to cease to apply to the United Kingdom (something which was beyond the power or authority of a Minister of the Crown to determine).



The definition of exit day since enactment of the European Union (Withdrawal) Act 2018 reflected the legal default position of Article 50.3 ‘failing that, two years after the notification’ – 2 years after the notification on 29th March 2017 was 29th March 2019. The definition was precise ’29 March 2019 at 11 p.m.’



There were only two possibilities for the day and time ‘the Treaties are to cease to apply to the United Kingdom’ to change as stated under Article 50:




A withdrawal agreement being concluded before 30th March 2019; or
The European Council in agreement with the Member State concerned (the United Kingdom) unanimously deciding to extend the two-year period 



Before 30th March 2019:-


The Withdrawal Agreement had not been concluded. 


Option 1 did not apply.


There was no new Referendum Act;There was no referendum to establish whether the United Kingdom should extend the Article 50 period and delay the United Kingdom’s departure from the EU;

There was no primary legislation to reverse the intention of the United Kingdom to leave the European Union as set out in the European Union (Notification of Withdrawal) Act 2017;

There was no primary legislation to repeal the European Union (Notification of Withdrawal) Act 2017;

       There was no removal of the Prime Minister’s notification of the United Kingdom’s intention to leave the European Union;

       There was no primary legislation granting the Prime Minister or any other minister power to seek or obtain on behalf of the United Kingdom an extension under Article 50(3) of the Treaty on European Union;

       There was no democratic mandate to reverse the result of the 2016 referendum (on the contrary there was a clear democratic mandate in a general election to implement the result of that referendum);

       There was no change in the fundamental constitutional position as set out in the Gina Miller case;

       ‘it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law.’

        ‘ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual legislation (and, in some cases, even without any domestic legislation)’

        The United Kingdom (as compared with the Government/ Prime Minister) did not agree to an extension of Article 50; and

         The United Kingdom did not provide authority for anyone to seek or agree an extension of Article 50


In other words, the Member State concerned (the United Kingdom, as compared with the Government/Prime Minister) had not agreed to extend the two-year Article 50 period. 


Option 2 did not apply.


The definition of ‘exit day’ had not changed from 29 March 2019 at 11 pm. Accordingly, a Minister of the Crown did not have the power or authority to change the definition.
 

        The Treaties of the European Union ceased to apply to the United Kingdom on 29th March 2019 i.e. the United Kingdom left the EU on 29th March 2019 without a withdrawal agreement.
     

Thursday, 8 August 2019

BRECON & RADNORSHIRE BY-ELECTION – COCK-UP OR STITCH-UP?


BRECON & RADNORSHIRE BY-ELECTION – COCK-UP OR STITCH-UP?


Last week on the 1st August there was a Parliamentary by-election, the reports of which had been very overshadowed by the national political events, like the formation of the new Boris Johnson Premiership and Cabinet.  Then almost out of the blue, as it were, we learnt that the Conservatives have lost the seat. 

There were suggestions in the Remainer Main Stream Media that Boris has already lost his bounce. A more obvious point on the facts would be one that they are not so keen to report, given their pro-Labour bias, that in fact the Labour candidate had almost lost his deposit in a Welsh constituency which had once been part of Labour’s Welsh permanent fiefdom!  The seat was Labour for many years until 1979.

A bit more enquiry reveals that the Conservative Party’s candidate had previously been the MP, but the by-election was called as a result of a Recall Petition because he had been convicted of creating fraudulent invoices and claiming fraudulently on his parliamentary expenses. 

So what on earth induced the Conservative Party to put him up again as a parliamentary candidate?  Was it incredible arrogance?  Incredible stupidity? Or some sort of devious plot?

Of course in human affairs generally it is often a mistake to discount the role of sheer mistaken stupidity.  That maybe what has happened here; perhaps coupled here with a sense of obstinate entitlement. 

There is however an alternative idea to consider. 

Let’s first look at the timeline here:-

The previous MP and recent Conservative candidate, Christopher Davies, pleaded guilty of putting in false expenses in March 2019 and in April he was sentenced.  

The Speaker launched the legal petition on the 24th April and the petition was opened on the 9th May and remained open for signatures until the 20th June.  It only needed to get 5,303 signatures but in fact got 10,005 signatures.  10,005 petitioners who signed to remove him amounted to 19% of the 53,032 electors in Brecon and Radnorshire. 
 
Mr Davies was re-selected as the Conservative candidate (the re-selection process now requires not only the local party to support the candidate, but more importantly requires the National Nominating Officer of the Conservative Party to sign the candidate’s Nomination Certificate.  The National Nominating Officer of the Conservative Party is Victoria Carslake, who was of course an appointment by Theresa May). 

The close of nominations in this by-election took place on 5th July and, as I mentioned, the election took place last week on the 1st August. 

This timeline alone shows that this by-election can really have absolutely nothing to do with Boris Johnson.  The fact that the recently convicted fraudster Conservative candidate still managed to do so well might really show that Boris Johnson, if he had any effect on it at all, very nearly got him re-elected however unsuitable he might be as an MP!

So I return to the question of why would the Conservatives put up a candidate who has not only been recently convicted of fraud on his parliamentary expenses, but also to strong feeling locally about this, triggered this by-election? 

Another possibility, other than Conservative stupidity, might be another devious plot by Theresa May and her inner circle. 

We now know that Theresa May never sought to negotiate any form of proper Brexit.  She never suggested to the EU negotiators that we might leave with ‘No Deal’ and she never attempted to get the United Kingdom a good deal.  Her whole effort was to try and tie us up as close to the European Union as possible, which is why she went on, not only lying about what she was doing, but also signing us up to yet further EU commitments, such as the new EU Army. 

She also called her General Election not because she wanted to guarantee Brexit, but rather because she wanted to be independent of the Brexiteers and to impose her Agreement on the country. 

So I suggest that a possible scenario is that this totally unsuitable Conservative candidate was re-selected in order to lose that seat and so give Remain supporters in the House of Commons yet more clout. 

All this was going on whilst Theresa May was trying to and partly succeeding in getting huge further spending commitments which would bind the hands of her successor, which was already most likely to be Boris. 

If this is what was actually happening, then this by-election is nothing to do with Boris except in the sense that it was always set up as a trap. 

The most laughable suggestion is that this is all the fault of the Brexit Party splitting the vote.  This is of course a variant of the old line of the most cynical Establishment vote manipulators that you cannot vote for anybody else other than the Conservatives otherwise you get Labour (or vice or versa if you are a former Labour supporter). 

Whilst it is true that the Brexit Party got more than the difference between the Conservative and Liberal Democrat, it does not follow that people who voted Brexit Party would have voted for the Tory convicted fraudster.

Of course all this undemocratic nonsense relies upon the most appallingly undemocratic electoral system, the “First Past the Post” which regularly cheats large numbers of voters out of their preferred outcome. 

Friday, 2 August 2019

BORIS, THE RESCUER OF BREXIT? (OR JUST THE CONSERVATIVE PARTY?)


 

BORIS, THE RESCUER OF BREXIT? (OR JUST THE CONSERVATIVE PARTY?)


We now live in a country where if you rely on the mainstream media for your information then you will be misinformed!

A good example of this was all the hype about Boris’ Government being dominated by hard-lined Leavers.  The longstanding Eurosceptic MP for Wokingham, Sir John Redwood, put us straight on that with this tweet:-

There has been much misleading comment masquerading as analysis about the nature of the new Cabinet.
There are just two members who voted against the Withdrawal Agreement on all three occasions it came forward, and three who voted against it on two of the three occasions.

There are fourteen who voted Remain plus the Chief Whip.
The big majority of the Cabinet supported Mrs May’s Withdrawal Agreement, and some  were particularly vocal in urging others to do so.”

Boris of course has been a breath of fresh air in whacking Labour all over the court in the parliamentary tennis match.  Boris does also talk a good line in positivity and also of getting us out of the EU by the 31st October “do or die”.  He is also claiming that he is not going to call a General Election before the delivery of Brexit.

Despite this assurance Boris’ behaviour is sounding rather like preparations for a General Election.  The new Leader of the House, Jacob Rees-Mogg, dared Remainers to pass an Act of Parliament revoking the Article 50 Notice.  This may well be part of a strategy to trigger a General Election on the ticket of trying to get Brexit “over the touch line”. 

If so, it should be remembered that all the Tory Remainer rebels, the Gaukes, the Stewarts the Letwins, the Grieves, etc., will get re-elected if the Conservatives do well because there will not have been time to purge them from standing.  An early General Election, whilst good for getting Conservative candidates re-elected, may not help in the slightest with the parliamentary difficulties over Brexit. 

I do think one of the litmus tests of whether or not Boris’ Government genuinely is willing to allow a ‘no deal’ Brexit, is whether or not they show an interest in supporting our “Defend Brexit” case. 

To my knowledge Jacob Rees-Mogg has been spoken to about the Brexit case by at least three people, as well as, of course, being general knowledge amongst Conservative MPs because of the House of Commons Library’s briefing.  It wasn’t therefore a surprise to see in this video clip that Jacob Rees-Mogg knew about the case >>> 


What was interesting, however, was to see somebody who is not a lawyer trying to make out that he had some information about the case’s chances of success!

Jacob Rees-Mogg’s comments were particularly disingenuous when you consider that he was very happy to talk about his colleague, Bill Cash’s case, which has never actually been a case at all, let alone had any merit, since no proceedings have actually even been issued and it would now be too late to do so. 

So his answer isn’t in fact about whether our case has any merits, his answer is instead indicative of what the Conservative Government under him and Boris are thinking of doing with the case. 

If the real intention of Boris’ Government was to get the UK Out of the EU with ‘no deal’, then not defending our case would be the easiest way to achieve that for them.  It would not then be possible for Parliament to block either the case or thus Brexit.  It would also not be possible for Parliament to legislate to prevent it.  It would simply be declared as the law by the court, at which point there would be nothing that any of the Remainer Establishment figures could do about it.  If that outcome does not suit Boris’ Government that must be because they have some other agenda. 

My suspicion is that their agenda is simply to bolster the Conservative Party’s position in a General Election to be announced.  This could be perhaps in October to take place in November when the clocks have gone back.  It is then dark when people return from work. This will dramatically reduce Labour’s advantage in having an estimated a quarter of a million canvassers. 

I may be proved wrong, but if so, I would expect the case to be given a fair wind by Government. 

Let us see what happens!