Theresa May claims ‘horrifying’ power over citizens

Written By: Andrew Rosthorn
Published: November 30, 2016 Last modified: December 1, 2016

John Halford, solicitor for the People’s Challenge Against Article 50 says the government case at next week’s Supreme Court Brexit hearing is ‘a staggering proposition’.

Top Eurosceptic Tories have failed to persuade Theresa May to abandon her appeal against a ruling by three high court judges last month that only parliament can trigger Brexit.

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The Lord Chief Justice Lord Thomas of Cwmgiedd had declared:

The government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

After examining the government’s appeal case, Professor Michael Zander QC predicted that it will fail again, this time before all eleven judges of the Supreme Court in a 3-4 day hearing next week.

Concluding an article in the New Law Journal Professor Zander reckoned:

In my view, the Government could be looking at losing 11-0.

The secretive May government is once again claiming the power to use the ancient royal prerogative to strip away rights that were granted to UK citizens by acts of parliament.

John Halford commented:

This argument does not, and cannot, stop at the stripping away of EU rights. Any right that was not protected by Parliamentary ‘stop’ signs in an Act of Parliament could be stripped away just as easily from UK citizens, from common law rights to privacy or property, through to rights to access the courts and confidential legal advice. The implications are more than unsettling; they are horrifying.

In a message to five thousand people who crowd-funded The People’s Challenge, Halford says that the government’s new ‘written case’ argues:

EU rights are not solid, reliable or permanent in a legal sense – they are ‘ambulatory’, always in flux and dependent on what the Government of the day agrees with other states ‘from time to time’.

This is a staggering proposition and has implications that go far beyond this case.

Suppose the government is right. EU citizenship rights enjoyed for decades, that most UK nationals were born with, can be stripped away without any Parliamentary involvement at all.

The logic of the Government’s case is that this could have been done if there had been no EU Referendum, or even if majority of votes cast had been in favour of remaining.

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Halford quoted Lord Bingham, 1933-2010, quoting in turn Lord Camden, 1714-1794:

When the existence or effect of the royal prerogative is in question, the courts must conduct an historical enquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. ‘If it is law, it will be found in our books. If it is not to be found there, it is not law’

The Supreme Court has now permitted the Scottish and Welsh governments and the tiny IWGB migrant workers’ union to join the action brought by millionairess Gina Miller and The People’s Challenge after Theresa May claimed she could use the royal prerogative to override the 1972 act of parliament that took the UK into what became the European Union.

John Halford said this week:

Parliament did not, in some express or implied way surrender to the Crown its own power to control the scope of the EU law, and indeed the EU Treaties, from time to time. The point of the Act was to take us into the European Communities (and later the Union), not to take us in or out as the executive pleases in a game of international hokey cokey. And as for EU law being ‘ambulatory’, the People’s Challenge case will show that it is anything but: EU rights are fundamental and irreplaceable.