Open Letter to James Eadie QC re my view that he is misleading the Supreme Court

I listened with great interest to James Eadie's statements before the Supreme Court yesterday.

I believe he is misleading the Supreme Court on two important points.

I have written to Mr. Eadie asking him to consider whether there is a need for him to apologise to the Supreme Court.

Here is the text of my letter to Mr. Eadie.

6^th December 2016

To:

James Eadie QC

[By email]

Dear Mr Eadie,

Misleading of the Supreme Court by James Eadie QC

1. You mistake Delegated Authority from Parliament for the Royal Prerogative
2. You ignore the importance of Section 2 of the European Union Act 2011

I watched your performance yesterday at the Supreme Court with considerable interest.

It seems to me that you misled the Court on two important points.

The first raises questions about the competence of your analysis.

The second raises questions about your honesty before the Court.

You mistake Delegated Authority from Parliament for the Royal Prerogative

I listened with interest to your peroration about the supposed Royal Prerogative.

Let me demonstrate to you the falsity of your analysis by means of two questions.

First, “After the Glorious Revolution did the Royal Prerogative have the capacity directly to change UK Law?”

Second,, “If the answer to the first question is No, how after enactment of the European Communities Act 1972 did the Government acquire the capacity to transpose EU Law into UK Law?”

The answer, I suggest, is simple.

The Government acquired that capacity not by virtue of the Royal Prerogative but by means of Delegated Authority from Parliament, the scope of which was laid out by the relevant text of the European Communities Act 1972.

That which Parliament created by means of Delegated Authority requires the Authority of Parliament to undo.

The later constraints on the freedom of action of the Government in the EU sphere, for example expressed in the European Union Act 2011, is Parliament taking back parts of the Delegated Authority given to the Government in the European Communities Act 1972.

If I am correct in that analysis, it seems to me that the Appeal on behalf of the Secretary of State must fail.

The importance of Section 2 of the European Union Act 2011

Section 2 of the European Union Act 2011 is engaged by any attempted withdrawal from the European Union.

Please see my analysis of that issue expressed in my letter of 5^th November 2016 to the Attorney General, my Preliminary Skeleton Arguments of 28^th November 2016 and my letter of 28^th November 2016 to the Secretary of State for Exiting the European Union.

Yesterday you indicated, correctly, that the European Union Act 2011 constrained the freedom of movement of the Government.

You neglected to inform the Court that Section 2 of the European Union Act 2011 is engaged by attempted withdrawal and requires not only an Act of Parliament but also a further Referendum.

See my Preliminary Skeleton Arguments for the basis for that assertion.

Given that I wrote to the Attorney General and Secretary of State for Exiting the European Union on this matter and the Government Legal Service confirmed they had seen my Preliminary Skeleton Arguments, the disturbing question arises as to whether you are deliberately misleading the Court.

As argued in my Preliminary Skeleton Arguments the Act of Parliament and Referendum required by Section 2 must take place before an Article 50 decision and notification can lawfully take place.

I invite you, as a matter of urgency, carefully to examine the analysis of Section 2 that I put forward in my Preliminary Skeleton Arguments and give careful consideration as to whether you require to apologise to the Court for misleading them.

Distribution

I am copying this letter to Lord Neuberger and the other Justices so that the Court may be aware that these matters have been drawn to your attention.

I am also copying this letter to the legal representatives of the opposing parties and interveners in the Appeal before the Supreme Court.

In conclusion

It seems to me that your presentation before the Supreme Court demonstrated both a failure of analysis and a failure of integrity.

I invite you carefully to consider my assertions and whether or not you require to apologise to the Court.

Yours sincerely

(Dr) Andrew Watt

James Eadie QC is misleading the Supreme Court about the supposed "Royal Prerogative". It is Delegated Authority from Parliament

James Eadie QC put forward some interesting and arcane arguments at the Supreme Court yesterday.

The Court, so far as I can see, has failed to see that Mr. Eadie is misleading them regarding the supposed Royal Prerogative.

Let me ask two questions:

1. After the 17th Century (but before enactment of the European Communities Act 1972) did the Royal Prerogative ever have the capacity to change UK Law?

The answer is No.

2. How was it that after enactment of the European Communities Act 1972 that the Government had such a capacity with respect to the inclusion of EU Law into UK Law?

The answer in my opinion is simple.

The Government could do so because of Delegated Authority from Parliament, the scope of that Delegated Authority was expressed in the text of the European Communities Act 1972 (without actually using the term Delegated Authority).

All transposition of EU Law into UK Law was at the hands of Parliament.

First Parliament passed the European Communities Act 1972.

Later EU legislation entered UK Law by virtue of Delegated Authority of Parliament.

What Parliament has created, only Parliament can undo.

If I am correct, the Government's Appeal before the Supreme Court must fail.

A glaring failure by the High Court was the absence of consideration of the characteristics and existence of an Article 50 "decision"

One of the glaring deficiencies of the High Court judgement on the Brexit case was the absence of detailed examination of whether a "decision" in the meaning of Article 50 of the Treaty on European Union had been made or not.

The High Court also failed to make more than a cursory examination of who may lawfully make an Article 50 "decision".

The Secretary of State's written case hinted at the Referendum of 23rd June 2016 as being the "decision".

That indication by the Secretary of State seems to me to be visibly ridiculous.

On reflection it seems that the Secretary of State recognised that attributing the Article 50 "decision" to the Referendum couldn't be sustained.

More recently the Secretary of State has hinted that the Government made the decision.

Or maybe it was the Secretary of State.

Or maybe no "decision" has been made at all.

It seems to me that where the High Court failed to go the Supreme Court must go with energy and thoroughness.

The existence or otherwise of an Article 50 "decision" is fundamental to the question of whether or not an Article 50 "notification" may lawfully be sent.

Similarly the question of who may take such a "decision" in compliance with the United Kingdom's "constitutional requirements" is key to whether or not it is lawful for an Article 50 "notification" to be sent.

The Secretary of State's view seems to be that making an Article 50 "decision" is a matter of a few moments and that it may be made by virtue of the Royal Prerogative.

In my document entitled "Preliminary  Skeleton Arguments of Prospective Intervener Dr. Andrew Watt" sent as part of my formal application to the Supreme Court to intervene in the Brexit Appeal I set out a line of legal argument that an Article 50 "decision" was multipartite.

In particular, I showed that an Article 50 "decision" was at a minimum tripartite.

The three parties involved are:

1. HM Government
2. Parliament, through at least one Act of Parliament
3. The British electorate, through at least one further Referendum

At present my application to intervene has not been decided by the Supreme Court.

At least I haven't been informed of any decision by the Supreme Court.

Nor is there any indication on the Supreme Court web site of any decision on my application to intervene.

I believed when I submitted the application to intervene that my line of legal argument wouldn't appear in the written cases of other parties and interveners.

And such has proved to be the case apart from a passing reference to one part of my argument in the written case for the Expat Interveners.

It is therefore a line of legal argument which, it seems to me, the Supreme Court must consider if it is fairly to consider this case of huge constitutional importance.

Of course, if the Supreme Court considers my line of argument and indicates in its judgement that they reject the argument for stated reasons that is transparent and may be entirely legitimate.

If, on the other hand, the Supreme Court rejects the application to intervene that eventuality, if it happens, would potentially be a very worrying development.

Of course, the Supreme Court Justices who have looked at my application to intervene may think my line of reasoning is so ridiculous as to be certain to fail.

If so it seems to me that it would be prudent for the Supreme Court to say so transparently.

I would rather be publicly embarrassed than be left with the feeling that the Supreme Court isn't acting with full transparency and integrity.

As far back as 1971 the High Court in Blackburn vs Attorney General allowed Mr. Blackburn to argue a hopeless case.

The Court of Appeal did likewise.

Even if the Supreme Court were to consider by Preliminary Skeleton Arguments as being a hopeless case the preferable way to say so would be to do it publicly in its judgement.

"The leave campaign lied through its teeth about the benefits of Brexit."

In today's Guardian, Martin Kettle has written a level-headed detailed article about how Brexit might, just might, be stopped.

Martin Kettle's article is here:
It won’t be easy to stop Brexit. But here are four ways to do it

In this post I want to focus on a single statement in Martin Kettle's article:

"The leave campaign lied through its teeth about the benefits of Brexit."

Many, including myself, share that view.

It is not yet widely known that formal reports of alleged criminal offences in the campaign leading to the Brexit Referendum have been sent to the Director of Public Prosecutions (on 24th October 2016) and to the Lord Advocate, in his role as Senior Prosecutor in Scotland (on 10th November 2016).

I am a signatory to both reports of suspected criminal electoral offences.

I fully expect that the Crown Prosecution Service (in England) and the Crown Office and Procurator Fiscal Service (in Scotland) will view the reports of suspected electoral offences as an unwelcome political hot potato.

 However, both the Director of Public Prosecutions and the Lord Advocate have a duty to investigate the suspected electoral offences.

The Crown Prosecution Service recently invited me to report the suspected offences to the Police.

However, it is my view that the duty to ensure that the alleged electoral offences are investigated lies (in England) with the Director of Public Prosecutions and the Crown Prosecution Service.

If, as I believe, electoral offences were committed then a Police investigation in England and in Scotland must follow.

Should such investigation start then the question of the legitimacy of the Referendum result will become a topic of active public discussion.

That is one element which might contribute to turning the tide against the Brexit Madness.

Judicial decision making is arbitrary and unpredictable

If circumstances had been different, today I might well have been carrying out a Masters degree by research at my local Law School.

Several months ago I had some preliminary discussions about potential topics for the proposed Masters degree.

My interests lay in questions which others choose not to address.

One might say that I was proposing to explore areas where angels fear to tread.

One possible  Masters topic was a critical examination of the process of judicial decision making.

A number of years ago I watched a YouTube video of the valediction of the then Supreme Court Justice Lord Walker.

The YouTube video is still there if you happen to be interested:
Lord Walker's Valediction

 The point which is relevant to this post is the mention of a dictum of Lord Walker to the effect that a good judge identifies the correct answer to a legal question and then takes steps to provide support in his legal reasoning for that answer.

But what of a bad judge?

What of a biased judge?

Or a dishonest or corrupt judge?

Would he/she use his intellect and judicial discretion to, in effect, pervert the course of justice?

Could he/she use judicial discretion in such a disreputable (and criminal?) way?

I was already aware of situations where a judge had, in my estimation at least, used his judicial office to defeat the ends of justice.

I'll briefly mention some high profile cases where judicial integrity comes into question.

In the 1920s a High Court judge used his discretion to allow a mistress of the future Edward VIII to get away with murder, in order to avoid embarassment to the Royal Family.

In the 1960s judges in the Court of Appeal and in the High Court perverted the course of justice with respect to the case of Stephen Ward.

Among the corrupt judges was the then Lord Chief Justice and a future Lord Chief Justice.

I am aware of two further recent cases where I believe that current members of the judiciary have perverted the course of justice in high profile cases. At least that is my opinion.

If we put to one side the question of whether some judges are corrupt or biased, there remains the fundamental methodological question, "If there is no standard methodology how can "justice" be consistently achieved?".

My working hypothesis is that there is no way to be sure that justice is consistently achieved and, in any particular case, there is no reason to assume that it isn't possible for a judge (or even a group of 11 judges) to defeat the ends of justice.

The Masters research would have gone on to explore in more depth questions such as how judges could (and, in my opinion, do) use their discretion to steer a case towards a desired outcome.

Could the Supreme Court act in such an underhand way?

Of course.

There is, in my opinion, no reason to place unquestioning trust in the eleven Supreme Court Justices who are to hear the Brexit Appeal.

In fact, given the likelihood that the current Supreme Court includes some of the best legal brains in the country they collectively have the skillset to act improperly and frame their judgement so as to conceal their impropriety.

On the other side of the coin, one can ask if they would dare do so, assuming that they were so minded.

The Brexit Appeal is, in my estimation, the highest profile case to come before the highest court in the UK for more than a century. Probably ever.

All 11 Supreme Court Justices are to sit. It is said that such a number of justices sitting on one case is unprecedented in UK legal history.

If the 11 Justices get it wrong, and are seen to get it wrong, the lasting damage to the reputation of British Justice may be very serious.

The age of deference is a thing of the past.

The legal profession remains bound by a convention, at least while in active practice, that the integrity of a judge is not directly challenged.

But the public and the media have the opportunity to ask very direct and probing questions about the competence and/or integrity of judges.

I will, of course, be watching the Justices very closely given my interest in the methodological possibility of bias or impropriety.

On the other side I feel sure that the Daily Mail and others will likewise be looking for any evidence of bias on the part of the Supreme Court justices.

How the Supreme Court will behave in handling the Brexit Appeal remains to be seen.

Perhaps next year I will go on to do the Masters at my local Law school. Perhaps not.

For the moment, some of the important issues which interest me are on practical display at the Supreme Court.

The events of the next few weeks may provide me with rich pickings on which to found a Masters research degree.

The Richmond by-election: Is the political tide beginning to turn against Brexit?

A short time ago it became clear that the white knuckle ride towards "Trainwreck Brexit" experienced what one might call "a little difficulty".

Sarah Olney, the Liberal Democrat candidate, defeated the former Conservative MP, Zac Goldsmith, in the Richmond by-election:

Lib Dems oust Zac Goldsmith in Richmond Park by-election

Both Ms. Olney and Mr. Goldsmith were against Heathrow expansion.

The key difference between the two leading candidates was that Ms. Olney was critical of Brexit and Mr.Goldsmith was in favour of it.

No doubt the result will receive enormous attention as the nation wakes up today.

It will be impossible for Theresa May totally to ignore the result.

However, those of us who oppose the Brexit Madness must be realistic too.

Richmond, so it seems, is one of the most highly educated constituencies in the country.

It voted strongly in favour of Remain in the Referendum of 23rd June.

So we can't blithely assume that other constituencies will, on reflection about the disastrous consequences of "Trainwreck Brexit", make a similar anti-Brexit decision.

Yet, there is cause for encouragement.

If, as happened in Richmond, a Conservative majority of  23,015 at the 2015 General Election has been overturned it must, I think, give pause for thought to Theresa May and at least some Conservative MPs.

For at least some Conservative MPs the calculation will be of self-interest.

The question for them will be, "Will supporting Brexit or opposing Brexit give me the best chance of being re-elected in 2020?"

The Richmond by-election is certainly a useful and encouraging ripple in the political waters surrounding the  proposed Brexit.

Will it be the beginning of the political tide turning against Brexit?

It's too early to tell.

Bill 104 56/2 Withdrawal from the European Union (Article 50) Bill

Peter Bone has introduced a Bill entitled "Withdrawal from the European Union (Article 50) Bill".

It is to be found online here: Bill 104 56/2 Withdrawal from the European Union (Article 50) Bill

Further progress regarding the Bill will be found here: Bill documents - Withdrawal from the European Union (Article 50) Bill

The core text of the Bill is here:

    1 Notification of the United Kingdom’s intention to withdraw from the

     European Union

(1)

Her Majesty’s Government has a duty to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union.

(2)

The notification must meet the terms of Article 50 of the Treaty on European Union.

 The Bill assumes that a "decision" has already been made of the kind described in Paragraph 1 of Article 50 of the Treaty on European Union.

As indicated in the preceding post there is very little known as to whether a "decision" really exists or not.

The requirement that the notification must "meet the terms" of Article 50 is self-evident. If it did not meet those terms the purported notification might prove to be invalid.

The Article 50 "decision" - a Freedom of Information Request to the Department for Exiting the European Union

In documents submitted to the Supreme Court the Secretary of State for Exiting the European Union indicates/claims that a "decision" has been made of the kind in Paragraph 1 of Article 50 of the Treaty on European Union.

Nothing is disclosed about the nature of that supposed "decision".

Today I submitted a Freedom of Information Request to find out a few basic pieces of information about the supposed decision.

The Frerdom of Information Request is here: Questions regarding the Article 50 decision to leave the European Union

In principle the "decision", if such a decision actually has been made, is potentially subject to judicial review.

The official link to documents in the Supreme Court Brexit Appeal

I now find that the Supreme Court has produced a comprehensive page linking to documents relating to the Brexit Appeal.

It is here: Article 50 'Brexit' Appeal

There is also a commitment to publish a transcript of the scheduled 4 days of the proceedings.

The morning transcript will be published by around 16.00.

The afternoon transcript will be published by around 19.00.

It has also been stated that a judgement isn't to be expected until January.

Links to the Written Arguments of the Parties and Interveners in the Brexit Appeal to the Supreme Court

I thought it might be useful to attempt to create somewhere that had links to the Written legal submissions sent to the Supreme Court by the Government, Gina Miller and others who have been given permission by the Supreme Court to take part in the process which begins on Monday 5th December.

For each submission that I've seen I'll try to summarise its viewpoint in a sentence or two.

The Secretary of State for Exiting the European Union is the Appellant.

His written case is here: Supreme Court Printed Case of the Secretary of State for Exiting the European Union

The Secretary of State is arguing that the Government, through the archaic Royal Prerogative, has the power lawfully to send a "notification" of the kind described in Paragraph 2 of Article 50 of the Treaty on European Union. It is the Secretary of State's case that he need not consult Parliament in any way before sending an Article 50 "notification".

The lead Claimant, Gina Miller has not yet, so far as I'm aware, published her written submission.

I have seen a copy.

Ms. Miller seeks to argue, as she did before the High Court, that the Government cannot use the Royal Prerogative to send an Article 50 "notification". Parliament must consider the matter and, as decided by the High Court, that Parliamentary involvement must include an Act of Parliament.

The other claimant has not yet, so far as I'm aware, published his written submission.

I have not seen the document.

The Lord Advocate, as the senior Law Officer in Scotland, is an Intervener and has published his written case.

The Lord Advocate's written case can be found here: Written Case of Lord Advocate

The Lord Advocate argues that not only an Act of the Westminster Parliament is required, but that the Legislative Consent Convention is engaged which, in effect, requires that the Scottish Parliament be asked for its consent to any Bill being presented to the Westminster Parliament which seeks to achieve Exit from the European Union.

The Counsel General for Wales is also and Intervener and has published his case.

The Counsel General's case is here: [Add link when I find it again]

The Counsel General's case is broadly similar to the Lord Advocate's but my impression is that he argues more diffidently for engagement of the Legislative Consent Convention than does the Lord Advocate.

 A group of lawyers who favour Brexit has been granted permission to intervene.

At present I haven't seen their written submission nor has it been published so far as I'm aware..

In addition to the parties to the Appeal from the Gina Miller case in the English High Court there are also two written submissions from Northern Ireland.

 Neither, so far as I'm aware, has been published but I've seen both.

One is from Steven Agnew and others.

That submission argues inter alia that a Legislative Consent Motion by the Northern Ireland Assembly is required before an Article 50 "notification" may lawfully be sent.

The second submission from Northern Ireland is on behalf of Raymond McCord.

Mr McCord's submission asserts that the "consent of the Sovereign people of Northern Ireland" is required before an Article 50 "notification" may lawfully be sent.

The above submissions are each of the order of 20-50 pages long so be aware that I am very much simplifying the content of each document.

Was the Referendum vote of 23rd June 2016 unlawful?

Politicians seem to be struggling to get beyond the "never mind the quality feel the width" approach to the Brexit Referendum.

The generally received wisdom is to the effect that the Referendum vote on 23rd June was conclusive.

Members of Parliament have been commenting on the result a little like headless chickens.


They  seemingly can't see the problems with the Referendum vote and, similarly, don't seem able to identify the fundamental problem with the European Union Referendum Act 2015.

In this post I want very briefly to put forward a view contrary to the docile acceptance of the vote on 23rd June..

I did so in my written submission to the Supreme Court which formed part of my application to intervene in the Brexit Appeal.

Here I'm expressing myself largely for a lay audience.

I believe that

1. The European Union Referendum Act 2015 was unlawful because it was incompatible with the European Convention on Human Rights and the Charter of Fundamental Fundamental Rights of the European Union. In particular it was discriminatory.
2. The vote was additionally incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights.

In 1983 when Section 2 of the Representation of the People Act 1983 was passed it was entirely lawful to discriminate against aliens (such as citizens of other European Union Member States then were) with respect to political activity.

Once the concept of Citizenship of the European Union came into effect the situation changed .

This was recognised in the UK by allowing "relevant European Union citizens" (citizens of Member States other than the UK and Ireland) to vote in UK local government elections.

But no comparable change took place with respect to Parliamentary elections.

In other words, our fellow EU citizens were discriminated against by being excluded from voting in Parliamentary elections.

Similarly, those same EU citizens were discriminated against by being excluded from voting in the Brexit Referendum of 23rd June 2016.

If those 3 million or so EU citizens had been allowed to vote in the Brexit Referendum I believe the result would have been very different.

I think it's fair to assume that almost all would have voted "Remain". After all, do turkeys vote for Christmas?

I've asked the Supreme Court for a declaration that the European Union Referendum Act 2015 was incompatible with Convention Rights expressed in the Human Rights Act 1998.

In addition, I've asked the Supreme Court for a declaration that the Referendum was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights.

My argument is to the effect that the untruths told by the Leave side in the Referendum tainted the vote to such a degree that the vote was no longer "free and fair".

The question of Article 3 of Protocol 1 in the context of the Scottish Independence Referendum split the Supreme Court in 2014. The present case is very different from Moohan.

Will the Supreme Court accept my arguments on these points?

I'm not holding my breath. But nor do I totally discount that possibility.

Those arguments may need to be explored in another legal context. Possibly in a British Court. Possibly (or additionally) in a European Court.

Meantime if some Brexiteer keeps telling you that the vote on 23rd June was conclusive, don't be afraid to tell him (or here) that at least some people question the legality of the whole affair.