Mudcat Café message #3985387 The Mudcat Café TM
Thread #165570   Message #3985387
Posted By: Backwoodsman
01-Apr-19 - 02:09 PM
Thread Name: BS: Brexit #3: A futile gesture?
Subject: RE: BS: Brexit #3: A futile gesture?
Just saw this on FarceBook, from Sunday 31/3/19...

From The Sunday Times and The New Law Journal today......

"David Wolchover sets out why moves are afoot to prosecute the prime minister for misconduct in public office

On Friday 22 March Oxford University Professor of Physics Joshua Silver and I formally asked Westminster Magistrates' Court for a summons against the prime minister alleging misconduct in public office, a crime under common law carrying a maximum of life imprisonment. The application was adjourned to April 9 for a full oral hearing before the Deputy Senior District Judge for England and Wales.

This is no stunt. Nobody is above the law, least of all high officers of state administering major government business. Although the allegation concerns the activation of Article 50 on 29 March 2017, the conclusive evidence only surfaced in January, as I recently revealed in New Law Journal ('Did activating Article 50 constitute an indictable offence?' 12 March 2019).

Our case essentially hinges on the statutory basis of the European Referendum 2016. As the Supreme Court affirmed in the landmark Miller decision it was no more than 'advisory,' the commons briefing paper on the EU Referendum Bill having explained that the proposed ballot was of a 'type . . . known as pre-legislative or consultative which enables the electorate to voice an opinion which then influences the Government in its policy decisions.' Not only was that definition never disavowed by the Cameron Government but it was implicitly adopted by Minister for Europe David Lidington during the Commons Committee stage of the Bill. This did not deter David Cameron and his ministers from repeatedly stating that they would 'honour' the outcome. But those avowals were, as the Supreme Court further held, no more than political and were based on no legal foundation.

In the Webster case last year the Administrative Court confirmed that the EU (Notification of Withdrawal) Act 2017, passed in response to Miller, had delegated to the prime minister the discretionary power to make the Article 50 withdrawal decision. But that discretion was not unfettered. Since the referendum was not legally determinative of the leave/remain issue but merely advisory I would contend that the prime minister was constitutionally debarred from making the withdrawal decision exclusively on the basis of the referendum result.

Instead, she was duty bound to abide by that universal precept of rational policy-making, the obligation to scrutinise methodically all relevant and tangible factors. It's what sensible people do in their own lives. We don't buy a car simply because it's red. Good governance is no different.

But we now know that in deciding to activate Article 50 the prime minister ignored everything but the referendum outcome. Strong suspicions about this were provoked by the government's vacillations in Parliament over the impact assessments and were finally confirmed in the response by the Cabinet Office on January 23 to a Freedom of Information request by Action for Europe's Richard Bird.

As I argued in my New Law Journal article, the democratic imperative was not satisfied simply by implementing the statistically insignificant slight tilt towards leave. What counts is the constitutional imperative of rationally examining all relevant considerations. Constitutional imperatives are legal ones. They are the law and without the rule of law, democracy is meaningless. The prime minister deliberately flouted her constitutional obligations. With potentially disastrous consequences she broke the law.

It might be countered that the prime minister must have assimilated all the leave/remain arguments put forward during the referendum campaign and the passage of the EU (Notice of Withdrawal) Bill. But exposure to tendentious, if not mendacious, assertions advanced in the emotionally charged context of the debate on whether to continue our membership of the EU can hardly equate to dispassionate scrutiny of expert, systematically researched and detailed multi-disciplinary impact predictions. We now know that no such assessments were undertaken until those which were commissioned by the Department for Exiting the EU at the earliest in late 2017. There were no formal consultations outside Parliament and of course no public inquiry has ever been held.

It is inconceivable that Mrs May was on a frolic of her own when she activated Article 50. She was plainly supported and encouraged by her cabinet colleagues and since it may be comfortably assumed that they too had no regard for any factors apart from the referendum outcome it can be inferred that to a man and woman they were aiding and abetting her. No doubt this will be confirmed by cabinet minutes to which as yet the public are not privy. But there can be no safety in numbers. Collective responsibility will not exculpate any one of them, whether the prime minister or her colleagues.

This brings us to the impending Conservative leadership contest. If her successor was in the cabinet on the fatal date it may be appropriate to add that individual to the indictment. In the next few days we shall therefore be considering for the time-being a postponement of our application.

David Wolchover is a barrister at Ridgeway Chambers and Article6Law, 2 King's Bench Walk."