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but she is going to have to show why, some people may be more than a bit miffed
The government has been forced by a senior judge to reveal secret legal arguments for refusing to let parliament decide when and how the UK should withdraw from the European Union.
In a preliminary victory for those challenging Theresa May’s power to trigger Brexit, a high court judge, Mr Justice Cranston, has swept aside restrictions on publishing official documents before the hearing on 13 October.
In the released documents, lawyers for the government argue that it is “constitutionally impermissible” for parliament to be given the authority rather than the prime minister and dismiss any notion that the devolved nations – Scotland, Northern Ireland and Wales – will have any say in the process”.
They add: “The appropriate point at which the UK should begin the procedure required by article 50 [of the European Union treaty] to give effect to [notifying the UK’s exit] is a matter of high, if not the highest policy.
“It is a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well-suited and the courts ill-suited.”
Responding to the release of the skeleton arguments, John Halford, a solicitor partner at Bindmans law firm which represents the People’s Challenge, a crowd-funded group, said: “The court’s order allows a floodlight to be shone on the government’s secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny.
“Those who were unsettled by the government’s insistence on its defence being kept secret will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by acts of parliament stripped away if and when the executive withdraws from the treaties on which they are based.
“These arguments will be tested in court next month, but now they can be debated by the public too.”
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Mr Justice Cranston's co chair is Mr Justice Leveson. People may remember from the trials and tribulations of Tony Blair that Mr Justice Leveson does not have a lot of time for the concept of executive sovereignty in a parliamentary democracy.
Now that the government's case that it alone can guard the Holy Ark of the Brexit has been exposed to the cruel light of day expect lots of trouble as the likes of Mishcon de Reya get their large sharp teeth into the issues. Almost certainly brexit will all end up in the Supreme Court where the case will give Newsnight someting to chew on.. Kirsty Wark is even now getting into her copy of Bagehot.
The trouble with the Supreme Court is that is has all kinds of notions and rulings that above anything else parliament is sovereign not the executive. In darker moments it tends to brood on events 1640-1660 and 1688. Indeed it is one of the brexiters main plaints that parliament is sovereign not the ECJ for instance. They probably didn't envisage parliament becoming subject to a secret cabal instead. Mr Cash def not.
T May doesn't want this. If and when brexit gets to the floor of the house then all hell will break loose as varous factions pro and anti brexit get in on the act exploiting T May slender majority. It could make John Major's battles over Maastricht look like a picnic.
And of course time will go on and on as many of the issues are not covered by the Referendum manifesto and thus the govt cannot bring down the parliamentary axe.
A full on confrontation between a Supreme Court demanding a government rules by law and an executive claiming ancient royal preogative powers could be interesting and even bloody. A S50 invocation contrary to a ruling from the S.C. that a vote in parliament is required would not be accepted by the other 27. Whatever they want they don't want anarchy.
The Whitehall banqueting house is still there. You should visit it if you get the chance - there is a marvellous painted ceiling by Rubens ( EU immigrant ).
A great deal will depend on the success of the govt in lining up a sympathetic bench in the Supreme Court. It has signally failed to do this for the High Court initial skirmish.
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Very interesting, thanks for that Rollo.
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