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Tag Archives: Royal prerogative

What if James Eadie was right about Brexit?

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Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.      

When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.     

Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.   

He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.   

But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?   Read the rest of this entry

Why the sovereign UK Parliament has no backdoor exit out of Brexit

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Note: The High Court has now ruled that the Government does not have power to issue Article 50 notification. The 3 November 2016 judgment is available here.

Britain’s Prime Minister Theresa May has said there will be “no attempts to sort of stay in the EU by the back door”. She’s right. Those anti-Brexit voices hoping that a “sovereign UK Parliament” has a constitutional right to halt May’s European Union exit plans are wrong. A debate and vote by MPs would have no more constitutional weight than, let us say, the “advisory” referendum of June 23 (arguably rather less). Nor does the Prime Minister have a duty to give MPs a vote before she issues her withdrawal notice to the European Council under Article 50 of the Lisbon Treaty.

But if and when May does that, she will be entering a complicated constitutional maze – rooted in a treacherous political quagmire – with no predictable way through. Britain could be in limbo with Parliament and Government unable to agree, judges unable or unwilling to give clear guidance, a crisis “Brexit election” – which will resolve nothing and will not get May out of the hole left by her predecessor.

Wiser heads than this blogger have written at length on these issues, particularly regarding whether Parliament has a final say in taking Britain out of the EU. Unfortunately they have come to diametrically opposed views – with others taking up positions of various polarised degrees around the unsquared circle that is Britain’s Brexit crisis. What follows is simply an attempt to give some guidance through the maze.
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Alvi immigration case: Supreme Court rejects Home Office codes of practice

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The Home Office has been found to be in breach of the law by excluding migrants from Britain using “rules” in codes of practice that have not been sanctioned by Parliament.

The Supreme Court rejected the notion that material in the codes used to control immigration fell within the Royal Prerogative under Common Law (and hence beyond the ambit of parliamentary immigration legislation). The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.

The court has also suggested that 40-year old procedures for passing immigration rules through Parliament are no longer fit for purpose.

In what looks like a panic measure, the Home Office has sought to counter the ruling by putting a statement on immigration rule changes, including the codes of practice, before parliament on Thursday 19 July to come into force on Friday 20 July.

The debacle has occurred because new immigration rules, according to the 1971 Immigration Act S.3(2) are supposed to be laid before both Houses of Parliament. If the rules, in effect statutory instruments issued by Governments, are “disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying”, then the Secretary of State must take them back and make suitable amendments. (the so-called “negative procedure” explained here)

But in the case of the Occupation Codes of Practice used to exclude physiotherapy assistant Hussain Zulfiqar Alvi, a Pakistani national, even this far from rigorous procedure was not used. Instead the document was issued by the Secretary of State to the UK Border Agency (UKBA) without parliamentary scrutiny and posted on UKBA’s website. It lists skilled occupations and salaries that immigrants must have to qualify to be sponsored by employers to work in Britain.

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