“If a democracy cannot change its mind, it ceases to be a democracy.”

Ironically the title is a quote from David Davis back in 2012.

Now David Davis’s Dept for Exiting the European Union is saying “There can be no attempts to remain inside the EU and no attempt to rejoin it.”

By David Davis’s own measure the DExEU is now trying to stifle democracy in the UK.

We have known for some time that legal opinion says that the decision to trigger Article 50 is revocable both under the UK constitution and the EU Treaties. We commissioned and published the opinion from “The Three Knights” back in February this year.

Does the government have equally credible and powerful opinion either supporting or contradicting “The Three Knights”?

Perhaps we will know shortly as Jessica Simor QC from Matrix Chambers has submitted a Freedom of Information request to Theresa May asking her to release the advice she has received. According to Sunday’s Guardian Jessica Simor has been told by “two good sources”:

“that the article 50 notification can be withdrawn by the UK at any time before 29 March 2019 resulting in the UK remaining in the EU on its current favourable terms.

“Such advice would also accord with the view of Lord Kerr, who was involved in drafting article 50, of Jean-Claude Piris, former director general of the EU council’s legal service, and of Martin Selmayr, a lawyer and head of cabinet to the European commission president.” She says “there is no time to waste” and adds: “It is important that this advice is made available to the British public and their representatives in parliament as soon as possible.”

As Labour MP David Lammy said, again in Sunday’s Guardian, “It is frankly quite absurd that the Department for Exiting the European Union is refusing to publish these studies while ministers go around talking about the repatriation of parliamentary sovereignty and taking back control.”

The People’s Challenge knows about this government’s penchant for secrecy. In the Divisional Court we had to force the disclosure of the “secret arguments” it was proposing to use to defend its intention to use the Royal Prerogative.

The government’s lack of openness and transparency about issues such as the revocability of the Article 50 notification, and the extent to which it seeks to reserve to itself “Henry VIII” powers to bypass Parliamentary Sovereignty, constitute a far bigger threat – a threat that the government seems intent on keeping out of sight below the surface of the so-called debate.

Brexit is only the tip of the iceberg we are being driven towards.

On 17th February last we said:

“On Monday the House of Lords will debate a Bill designed to surrender the Parliamentary sovereignty that was upheld by the Supreme Court only weeks ago. We hope this Opinion will help peers understand that the Bill does not have that effect, Parliament will still be able to deploy its constitutional handbrake at any time during the next two years, and the EU will be bound to respect that. This leaves open the option of withdrawing our Article 50 notice if there is no acceptable deal agreed and Parliament decides that a hard Brexit is not in the national interest. The Three Knights’ Opinion is now the most authoritative view available on Article 50, short of a judgment by the European Union’s own Court of Justice. It brings into sharp focus Parliament’s constitutional role in protecting the national interest and the rights of businesses and millions of citizens, whatever the Government might say and whatever promises it makes about being able to negotiate an agreement with 27 other countries during the next eighteen months.“

8 months on it seems that nothing has changed: the government will not disclose what advice it has about the constitutional position and seems intent on telling our Sovereign Parliament what is, or isn’t, allowed.

We must actively defend the Rule of Law, Parliamentary Sovereignty and People’s Fundamental Rights against those who would sweep them away in the pursuit of some dogmatic, self-serving principle.

The People’s Challenge is prepared to step up to this need, as we have done in the past, and with your continued support we will succeed.

Notes.

Link to the Guardian article – Theresa May under pressure over ‘secret advice’ on halting Brexit

The People’s Challenge Three Knights Opinion – The Three Knights Opinion

The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in Miller vs R, Helen Mountfield QC and Gerry Facenna QC.

Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.

Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King’s College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.

Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. During his more than fifty years at the Bar he acted in many of the leading cases in the fields of European law, competition law, and regulatory public law, including on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.

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One Response to “If a democracy cannot change its mind, it ceases to be a democracy.”

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