Broad Oak: your emotional support animal

Thursday, November 03, 2016

Brexit ruling: "trying it on"

JD comments:

Today's decision in the High Court serves to highlight the absurdity of the Law. What it does is give supremacy to the letter of the law over the spirit of the law.

As Dickens wrote "the law is a ass" but Steinbeck pointed out another more fundamental flaw in the law. In his novel Cannery Row (I think it was that book) he has his character Doc come back from a day in court just observing proceedings and he declares in astonishment that "both sides were trying to win!" 'Doc' had suddenly realised that in an adversarial legal system the Law is not concerned with right or wrong, it is not concerned with justice, it is not concerned with discovering the truth, it is concerned only with the Law; interpretation of statutes, the precise legal status of every single word or phrase within a statute and only then because there has been a legal challenge. And any legal challenge which comes before the court will depend on who employs the most eloquent and persuasive advocate. Or to put it another way, the winner will be the side who can afford the best lawyers.

I know something of how the law operates because I was involved occasionally in contractual disputes in the construction industry. The most important question we asked was "what did the two parties intend" in other words, the spirit of the law was a major factor in deciding if the contract dispute was 'vexatious' or not. In the vernacular that means- was one of the parties 'trying it on' or just being greedy for money, and I could list more than a few that were like that especially during the 80s.

Going back to the opening paragraph, the spirit of the law versus the letter of the law. It must be understood that a statute can be interpreted in more than one way because of the limitations of language. It is written in good faith and when it is passed into Law, there will be a consensus opinion as to the meaning which is accepted by everyone. In other words we all think we know what it means and abide by that law, abide by the spirit of that law.

The case brought against the Brexit decision was, in my view, vexatious and should have been thrown out. The plaintiffs were wrong and even the full weight of the law does not make it right.

There is a further complication here in that European Law overrules English Law in any and all cases. This was decreed by Lord Justice Laws when he declared that the 1972 European Communities Act was a Constitutional Act and, as such, he overturned the convention that Parliament cannot bind its successors. We are bound to the EU and all the talk of Article 50 is a smokescreen. The only way we can Brexit is by repealing that 1972 Act and that has never been an option, our Parliamentarians have no intention of ever leaving the EU and have no desire to do so.

Postscript:

I have been reading the summary of today's judgement.

The judge confirms what I wrote when he says - "This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue" - as I said the law is not interested in anything other than interpreting the letter of the law.

https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

1 comment:

wiggiatlarge said...

The problem ls that parliament is already ignoring the articles of it's referendum mandate, in that the result would be enacted upon by parliament, a parliament that voted 6 -1 in favour of a referendum, there is not much point in having a referendum costing a small fortune and then say the result was advisory only, if that was the intention then they were taking the proverbial in the first place, and probably were.
The law is not firmly behind this decision which is interesting if the pronouncement by the Judges is to be taken as the final say, this article is one of several that have appeared today saying the ruling was wrong

http://www.lawyersforbritain.org/referendum-article-50-case.shtml

on a personal basis I would never beleive in Brexit happening until it happened, you coul write a small volume on the items that stand in the way of this happening most being engineered in the inordinate amount of time given them since the referendum result and simply nothing happening, if leave happens at all and is watered down there will have been no point to the exercise, stating in the single market having immigration still on EU terms means as Lampedusa said in "The Leopard", 'in order for things to change they must remain the same@ how very very true.