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