Many in the Eurorealist community (including Comrade Jeremy) have being urging the immediate submission of Article 50. This is understandable. Many of us have being campaigning against what was known as the “Common Market” from the start of the 1970s when the government of the arch-traitor Heath began the process of handing the government of this formerly sovereign country over to the bureaucrats in Brussels.
Patience however in this instance is golden. Remember Leo Tolstoy’s famous quote taken from War & Peace; “The strongest of all warriors are these two – Time and Patience.”
The reason why the EU leaders were urging the UK to submit Article 50 quickly is because they want to place themselves at an advantage. We refer you to our earlier article: http://www.british-gazette.co.uk/2016/07/08/article-50-litigation-a-useful-delay/
This is for TWO reasons:
1. Some British Remanians have concluded that the UK could halt the withdrawal process. Article 50 contains NO such revocation text. Such a revocation would require the consent of the other parties and thus it could be construed as being on the same terms as any request to extend the period of two years – unanimity required.
2. The balance of negotiating power during the Article 50 withdrawal process is massively in the EU’s favour.
Were the EU to agree to such a right to revoke and enable the people to decide whether or not to accept the terms or to remain a member, the EU will know that the worse the deal is the more likely the British People are to vote to remain in the EU at the end of the process. Furthermore the British government would be reduced to begging the others to allow the UK to stay! As mentioned in a previous article, the EU may well insist on a penalty clause!
There is a very good chance that the legal challenge being made through solicitors Mishcon de Reya LLP will slow things down in a manner which cannot be subject to foreign complaints.
Having considered the law in this case the British Gazette is of the same opinion as the solicitors at Mischon – the plaintiffs have a very good case. This means that the litigation might be over quickly.
We will now attempt to “boil” the legal argument down:
Essentially, the United Kingdom is governed by the Queen. It is she who makes the laws and it is her power that ministers use to make executive decisions. However, she does this with the advice of her ministers and the consent of Parliament. The Queen is constitutionally bound to operate in this limited manner by the 1688 Declaration of Rights, a treaty, that was ratified into law in 1689.
The Queen (and/or her ministers) cannot behave like her predecessor King Charles I.
The 1688/1689 Declaration/Bill of Rights is the keystone of the British constitution. If the Queen requires or wishes to receive advice on the governance of Her Kingdom she is constitutionally required to obtain this advice from her appointed ministers. Whilst she may consult a leading fashion designer about what to wear at Ascot, she cannot consult this person on running the country! The person she is bound to consult is her Prime Minister. She is of course also free to ask his (soon to be “her”) advice in what to wear at Ascot as well.
Earlier this year, the Queen gave her Royal Assent to a Bill that sought the collective opinion of the British People on whether or not the UK should remain a member of the EU or leave same.
This Act can only be construed as offering informal advice.
Of “sounding out” the opinion of the British People.
This “sounding out” of the British People’s collective opinion cannot and does not constitutionally usurp the role of her ministers in giving advice nor can it replace Parliament’s role in giving consent to repealing an Act of Parliament – which the serving of Article 50 would effectively lead to as the act in question – the European Communities Act, 1972 – would be nullified by the provisions of Article 50 were Article 50 allowed to run its course.
This is because Article 50 contains no revocation clause and therefore any revocation would have to be done with the consent of all other parties. Since the Crown has no power to bind these other parties the use of the Royal Prerogative has de-facto legislative effect – i.e.; making law (in this case repealing law – which is basically the same thing) – the use of such in these circumstances requires the consent of Parliament. Hence there is a need for a specific Act of Parliament to enable the Crown to act in this way. Such an Act would not necessarily result in the immediate application of Article 50 upon such an Act receiving the Royal Assent. The most obvious route would be to empower a Secretary of State to begin the process by laying a Statutory Instrument before Parliament giving effect to such.
The above is based in the British Gazette’s understanding of the law.
We refer the Reader to other opinion below: