Is There A Case For Progressing BREXIT by Royal Prerogative?

by Admin

UKIP MEP Gerard Batten destroys all the legal arguments for Brexit legal challenge in BBC interview.

Gerard Batten MEP has also published the following response to the Judgement of the High Court on Article 50.

1. The High Court’s judgement on Article 50 obviously triggers a constitutional crisis. This is a victory for those who seek to subvert the will of the people and block Brexit by whatever means possible. Unless the judgement is overturned by the Supreme Court, the ‘Remainers’ in Parliament will be able to overturn the Referendum result – or, at the very least, to water down Brexit to a point when it becomes merely cosmetic. We would perhaps secure a few more ‘opt outs’ but effectively remain member of the EU in all but name. 
2. This constitutional crisis follows only too naturally from the fact that the EU membership simply does not fit into the UK constitution. We joined the EEC (European Economic Community) on 1st January 1973 on the false premise that this does not affect the constitution at all. The elephant in the courtroom which everybody ignored is that it was unconstitutional to empower the EU to usurp the legislative powers of UK Parliament in the first place. Since the legislation was enacted by unconstitutional means, what are the constitutional means of repealing it? The EU procedure for withdrawal under Article 50 is unconstitutional simply because the EU itself is unconstitutional. This is a Gordian knot of a problem. 
3. The reasoning of the judgement is questionable. In the past, whenever a Eurosceptic went to Court to challenge any of the unconstitutional changes to UK law brought about through EU Treaties, the Courts refused to hear us on the grounds that international treaties are matters solely for the government under the Royal Prerogative. To take one example out of the many, in Blackburn v Attorney-General [1971] EWCA Civ 7, the High Court held: 
…Negotiations are still in progress for us to join the Common Market. No agreement has been reached. No Treaty has been signed. Even if a treaty is signed, it is elementary that these Courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us. That was settled in a case about a treaty between the Queen of England and the Emperor of China. It is Rustomjee v. The Queen (1876 2 Q.B.D. 69). Lord Coleridge, the then Chief Justice said at page 74: “She” – that is The Queen – “acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own Courts”. Mr. Blackburn acknowledged the general principle, but he urged that this proposed treaty is in a category by itself, in that it diminishes the sovereignty of Parliament over the people of this country. I cannot accept the distinction. The general principle applies to this treaty as to any other. The treaty-making power of this country rests not in the Courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When Her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of Crown. Their action in so doing cannot be challenged or questioned in these Courts.
Yet, now that the situation is plainly the flip side of the same coin, the High Court turns around and says: this Treaty is unlike any other, the Royal Prerogative does not apply, and the courts can interfere with the government’s treaty-making powers after all, or in this case its power to un-make one.   
4. More fundamentally, the Parliament does not govern us by a divine right. All the ancient statutes and judgements which restrain the power of the Crown to alter legislation without Parliament were there for one purpose only: to give effect to the fundamental constitutional principle of government by consent. Magna Carta refers not to a Parliament, but to a ‘General Council of the Realm’ consisting of ‘all those who hold [land] of us in chief’ – in modern terms, every household in the country. In principle, Referenda are as good as Parliament for obtaining the country’s consent. It is a very formalistic approach to insist on the powers of Parliament being used for the very opposite purpose to the one which is the very basis of the Parliament’s constitutional legitimacy. 
 5. The crucial premise of the Court’s reasoning (paras 105-108 of the judgement) is that the Referendum Act 2015 only provided for an ‘advisory’ Referendum as opposed to a binding one. Parliament could have instead provided for a binding Referendum, similar to the one on the ‘alternative vote’ system a few years earlier, but chose not to do so. After being forced by the UKIP electoral threat to promise and hold a Referendum, the political class foresaw the danger of losing it, and were careful to omit that proviso, thereby sowing the seeds of the present constitutional crisis. 
The same people who did that are now in charge of Brexit as government ministers and parliamentarians. They cannot be trusted to deliver withdrawal. 
6. As we’ve warned before, the Article 50 procedure would entail legal complexities of which today’s judgement is but the first forewarning. Article 50 is there to delay and impede states from leaving the EU, not to facilitate it. Next will come negotiations between the EU and a Remain Prime Minister, accountable to the Remain Parliament – a perfect setting for delaying Brexit as long as they like, and watering it down as far they like. Next, there will be further legal challenges, e.g. on the grounds of ‘vested rights’ of EU citizens to come here or to stay here, which arguably cannot be taken away retrospectively. 
7. In practical terms, there is only one way to untie the Gordian knot: to repeal the EEC Act 1972 without further delay.* A stark ‘yes or no’ question must be put to Parliament: they have either to repeal the Act (thus solving all the legal complexities illustrated by today’s judgement) or openly defy the will of the people if they dare – and face the voters in the next general election. UKIP will be there to offer an alternative.


4 thoughts on “Is There A Case For Progressing BREXIT by Royal Prerogative?

  1. John Shaw ( Party Official ) So there you have it. As many of us Nationalist’s have pointed out , over many years , EDWARD HEATH COMMITED AN ACT OF TREASON when , pretending it was only a TRADE AGREEMENT that did NOT EFFECT OUR SOVEREIGN RIGHTS , actually commited AN ACT OF TREASON ! The best way out therefore is to REPUDIATE the relevant act of Parliament , on those grounds and then HAVING ALREADY LEFT THE SUPERSTATE , COMMENCE NEGOTIATIONS FOR A FUTURE TRADE AGREEMENT ONLY. Obviously no Political INTERFERENCE WILL BE TOLERATED.


  3. John Shaw ( Party Official ) Having listened to various threats to our Country and People from the Chancellor of Germany and the President of France as they PLAY HARDBALL , IT OCCURS TO ME THAT WE COULD SUSPEND ALL payments to the E.U. SUPERSTATE COFFERS ! Now that’s what I CALL HARDBALL !

  4. John Shaw ( Party Official ) These horrible Europhiles have made some progress recently and we all wait , with baited breath , for the decision of the Supreme Court. I believe they will overturn the lower Court’s UNDEMOCRATIC decision and respect the WILL OF THE PEOPLE. Ultimately, the decision to ‘ go legal ‘ is a mistake by the remainers because the whole painful process will end up with a review of Edward Heath’s actions in SIGNING AWAY OUR SOVEREIGNTY and this can be proved to have been TOTALLY ELEGAL ANYWAY , so it must be undone ! Believe me , IN THE END WE WILL BE OUT AND AWAY FROM THE WHOLE GHASTLY ORGANISATION. THANK GOD !

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