“Brexit means… err….”
There has been much excited, and some hysterical, comment in the press in the immediate aftermath of the ruling by the Divisional Court that Mrs May cannot unilaterally start the Brexit process.
In this interview on ABN Radio I explained that the issue for the Court was not whether Brexit should happen, but how it could happen lawfully. Some commentators, who really should know better, are describing the result as ‘undemocratic’ and suggest that it pits ‘the judges against the people’. This is nonsense; the Government agreed that the referendum was advisory and that the process of exiting the EU required implementation before Brexit could take place. The only question for the Court was how this can be accomplished legally.
The Government rested its case on the well-established principle that it has a free hand in international relations and does not require the approval of Parliament in these matters. The opposing argument was based on the fundamental principle that where rights have been bestowed on the British people by an Act of Parliament, only Parliament can take them away. Precisely because joining the EEC (as it then was) affected our rights, an Act of Parliament (the European Communities Act 1972) was required before the UK could accede. Therefore, it followed that only Parliament could take those rights away. The Divisional Court held that the principle of Parliamentary Supremacy, which is the bedrock of Britain’s unwritten constitution, over-rides all others, and therefore Article 50 cannot be triggered until Parliament has given its approval. In doing so the Court has actually defended our democratic rights against arbitrary interference.
We then discussed the Government’s stated intention to appeal and some of the political consequences of the ruling.
To listen to the interview see below:
Author James Packer of Duncan Lewis & Co is described by sources as a "go-to solicitor for the most difficult public law work" and "a walking encyclopaedia." He specialises in judicial review challenges, UK and EU immigration law and human rights cases. - Chambers & Partners 2016 Guide". James is a specialist in all forms of judicial review challenge, costs litigation, immigration, European Union and human rights matters. He has a significant practice challenging unlawful immigration detention cases with high-net claims for damages and immigration removal decisions.
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