23 November 2016
23 November: demonstration for Brexit outside parliament. The message from the rally was clear: there can be no sovereign parliament unless the will of the people is sovereign. Photo Workers.
On 5 December judges on the Supreme Court will decide who is sovereign in this country – parliament or the people. They should allow the government to implement the result of the Brexit referendum – and clear up the mess left to them by the High Court. But will they?
In the High Court judgement of 3 November 2016 on invoking Article 50 the judges’ case rested on their claim that the government could not invoke Article 50 because this would change domestic law: “… the Crown cannot change domestic law by any exercise of its prerogative powers. …” (Paragraph 32.)
Contradictory
But the judges also said in Paragraph 32, “… By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in so doing it does not and cannot change domestic law. …”
This is to say that unmaking treaties, including EU treaties, does not change domestic law. It follows that the government would not, by invoking Article 50, be changing domestic law. As the Court summed up: “… It is precisely because the exercise of the Crown’s prerogative powers in the conduct of international relations has no effect in domestic law that the courts accept this is a field of action left to the Crown …” (Paragraph 89.)
‘Their case falls, felled by their own hand.’
In Paragraph 90 they cited approvingly the Divisional Court’s decision in ex p. Rees-Mogg on ratifying the Protocol on Social Policy as an addition to the European Communities Act of 1972: “… We conclude that the Government would not, by ratifying the Protocol, be altering or affecting the content of domestic law without parliamentary approval.” It follows that the government would not, by invoking Article 50, be altering or affecting the content of domestic law without parliamentary approval. Their case falls, felled by their own hand.
Euro-judges
The High Court judgement was delivered by the lord chief justice, Lord Thomas of Cwmgiedd. He is one of the Founding Members of the European Law Institute, whose Manifesto says, “its mission is the quest for better law-making in Europe and the enhancement of European legal integration.”
With that interest, Lord Thomas should have stood down from this case. He must be aware of the principle that no man should be judge in his own cause – “nemo iudex in causa sua debet esse”. Yet he ignored this when he decided to sit on this case.
This principle was established in the case “Frome United Breweries Co v Bath”, 1926, in which the then Lord Chancellor made a decision favouring a canal company in which, unknown to the parties involved, he had shares. So the Lord Chancellor’s decision was set aside.
This principle applies not only to any case in which the judge is a party but also to any case in which he has an interest. Judges should not be influenced by their personal interests and must also avoid the appearance of any possible bias, even if there is none, for “Justice must not only be done, but must be seen to be done”.
Control
The majority of the British people who voted on 23 June to leave the EU are determined to see their wishes carried out. They are furious at being labelled right-wing racists and xenophobes just because they wish to control their own country.
They are ordinary workers who have endured five months of backlash from reactionaries in Parliament and the corporate world. Their enemies are the likes of Branson and Blair, who seek to use their fortunes to derail Brexit. The fight for British independence goes on, and will not be stopped.