Jo Johnson resigns

[Workingman]

It is all becoming more and more depressing.

Yup. Negotiating on seven fronts.

With Remain MPs in the party.

With Brexit MPs in the party.

With Remain MPs in the cabinet.

With Brexit MPs in the cabinet.

With Remain MPs in the party and the cabinet.

With Brexit MPs in the party and the cabinet.

And the easy one, with the EU.

Who'd be Theresa May?

[Suff]

Remember it is dealing with a world first, is under the microscope, and has to publish the reason(s) for its decision.

Looking at an article on the judgement of the Scottish court in the UK constitutional Law association, it would appear that the petition was allowed to proceed to the CJEU for one reason and one reason only. That UK MP's are going to vote on the deal with the EU when the UK exits the EU and to have an EU article which is unclear, at the time of that vote, would not, constitutionally, serve the people.

Essentially, were it not for that fact, the appeal courts would have rejected the petition out of hand.

Have a read of the judgement which allowed this petition to go to the CJEU for Preliminary Ruling.

It has been decided that the case is "live" because of a very narrow hair splitting in the law. In fact it does address the original reason for refusal

The only plea-in-law on the merits is in entirely bland, and
thus almost meaningless, terms, viz. that the UK Government’s “position” on revocability is
“unlawful et separatim wrong in law”.

Hardly a recommendation for the CJEU to make a ruling.

However, reading the judgement, I note that virtually everything in it is about UK law cases. When the case gets to the CJEU, the body of law on which it will be judged as "pertinent" will be EU law and not UK law. In fact it seems that the ONLY reason that the case was forwarded to the CJEU was on precedent in law of the fact that hurdle to submission should be "extremely low".

It is quite probable that the CJEU will agree with the original judgement, namely that the case is not "live". It is not sure that the hurdle to be surmounted for the CJEU is as low as the Scottish Courts.

It does not help that the latest judgement says things like.

This central proposition of the petitioners’ alternative case is remarkable, in the context of a
petition otherwise peppered with precedent, in being devoid of authoritative support.

Or things like

This petition is almost 40 pages long. It contains 115 paragraphs. It is hampered by
the inclusion of aphorisms derived from isolated judicial dicta. It is dotted with references to
over 50 cases, which, if the court were actually expected to look at them in any meaningful
way, would take days to absorb.

In their final statement, they court says

For reasons which will be evident from this decision, there ought to be
a period of adjustment to enable the petitioners to plead their case in the manner stipulated
in Somerville v The Scottish Ministers (supra).

In other words, re-write it in the standard form, not the mess that it is currently in.

We shall see what the CJEU says, but don't hold your breath.

[Suff]

Who'd be Theresa May?

Which, I would suggest, is the ONLY reason she is not on the political waste heap right now.

[Workingman]

All the waffle, all the links, all the opinions, all the references to previous (irrelevant) cases, all the hopes do not matter.... the journey is the thing.

That journey has taken the case to the CJEU and it will sit at 9 am on the 27th of November.

That is where the decision will be made; not here, not in the many 'Spoons, not in the Commons' bar.

[Suff]

The links I posted were about the appeal decision which allowed this petition to be referred to the CJEU. All the old cases are the body of law on which this decision was made.

The whole judgement, which will be forwarded with the petition, reads like "don't blame us for this piece of shite, our hands are tied in a way yours are not".

I have sat in a Scottish court and watched the Sherrif request the Fiscal to re frame the charges. When the fiscal claimed it was not possible, the Sherrf found against even though it was clear the law had been broken.

We won't have to wait long before the case is heard. Then again the vote in the commons may be even sooner and invalidate the only premise for a "live" case that the appeal court found.

Wheels within wheels.

[Workingman]

Suff, you might describe it as a 'live' case in the hope it will be dropped due to some happenstance in the UK, but that is not so. The request for clarification has nothing to do with Brexit, per se, as the petition asks for clarification for any state and at any time:

"Where a member state has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying member state?"

That is the question for the CJEU and it will deliberate on a point of law.

A50 is so badly worded that it will almost certainly have to be re-written and this request might be the catalyst.

[Suff]

Suff, you might describe it as a 'live' case in the hope it will be dropped due to some happenstance in the UK, but that is not so. The request for clarification has nothing to do with Brexit, per se, as the petition asks for clarification for any state and at any time:

"Where a member state has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying member state?"

That is the question for the CJEU and it will deliberate on a point of law.

A50 is so badly worded that it will almost certainly have to be re-written and this request might be the catalyst.

Actually the wording of it as a "live" case was not mine, it was the wording of the appeal court. From what I read the logic went like this.

Because of the prior Miller case, the MP's would have to vote on the final deal. In order to vote on the final deal the MP's would need to know what their options were. Because the potential to unilaterally rescind the triggering of A50 is "marginally" open to interpretation, then there is a case for the CJEU to answer. Therefore they judged the case to be "live" and allowed it to proceed by vacating the previous judgement that it had no merit because it had no case to answer.

The CJEU has, as I see it, two options. They can uphold the original judgement that it has no case to answer and reject it. Or they can "interpret" the meaning of the A50 wording, in the context of a 28 member EU and make a judgement.

Due to the criticism of the appeal court, of the fact that the original petition was neither simple nor easy to determine whether it actually had any merit for the court to answer, the CJEU could simply take the easy way out and reject it.

On the other hand, the standard response time for a judgement from the CJEU is 3-6 months, not 3-6 days or 3-6 hours. They could simply follow normal protocol and, by the time they have made a judgement, the point would be well and truly moot.

Anything else will be, well, "unprecedented".