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‘Even the most hungover first year law student would understand this’: Journalists’ Article 50 gaffe will make you cringe

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Lawyers more than happy to correct them

Social media has erupted into a series of ‘I know my law better than you’ squabbles.

In one corner: journalists, namely LBC radio host Iain Dale and editor of the Spectator Fraser Nelson. Both men recently reignited the debate around the Gina Miller case, which concluded in the Supreme Court almost a year ago. Readers will no doubt remember the bench of 11 justices ruled that Article 50 of the Lisbon Treaty can only be triggered following a free vote in parliament.

For the avoidance of doubt, the court did not rule on whether Article 50 is reversible. Devereux Chambers barrister Jolyon Maugham QC had planned to bring a legal question to this effect to the High Court in Ireland, however this was discontinued this spring.

Weird, then, when former Tory politician Dale retweeted the following tweet, which included a screenshot of a Business Insider article from January, claiming the Miller case ruled Article 50 is irreversible:

In his tweet (embedded below), Dale described Article 50’s revocability as “another lie from Remainers”. He also name checked Lord Kerr, a Scottish Lord who was part of the team that drafted Article 50 (not to be confused with the Supreme Court justice of the same surname). Kerr has said on record that triggering the treaty provision can be reversed.

Dale wasn’t the only journalist interested in the Miller case this weekend. Nelson also tweeted a screenshot of the Business Insider article alongside a caption to the effect of ‘the Supreme Court said Article 50 cannot be revoked’. He has since deleted this tweet, but screenshots remain on the social media site.

The double-whammy of gaffes has been music to the legal Twitterati’s ears, who rarely shy away from legal fact-checking. One now retired technology disputes lawyer said Nelson’s comment was simply “wrong, wrong, wrong”:

A selection of other responses include the Secret Barrister’s contention that he “expected better” from Dale, and University of Sussex professor of public law Lindsay Stirton’s “they’re making this sh*t up”. Our favourite of all, however, came from Hélène Tyrrell, an academic at Newcastle Law School:

Nelson has since deleted his tweet but has not apologised for it. Dale, however, is sticking with his guns, tweeting:

Much to the concern of public law experts like King’s College London’s James Lee:

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25 Comments

Anonymous

No one knows.

Anonymous

About what?

Your secret little fetish?

Anonymous

The horrible mixture of swaggering over-confidence and ‘a little knowledge is a dangerous thing.’ Typical clueless and useless Tories.

s.32 Salmon Act 1986

“The horrible mixture of swaggering over-confidence and ‘a little knowledge is a dangerous thing.’ ”

I am struggling to think of a single public commentator on any side of the Brexit debate for whom this would not be an accurate description.

Anonymous

VOTE LEAVE

TAKE BACK CONTROL

Anonymous

You seem to be stuck in a timewarp.

Trumpenkrieg

A time warp where “diversity” and its attendant acid attacks, child sex grooming and sprawling networks of jihadis operating with impunity sounds like a wonderful thing where do I sign up?

Corbyn. Symphathiser

This post has been removed because it breached Legal Cheek’s comments policy.

Just Anonymous

Ok. Iain Dale and Fraser Nelson are wrong. James Lee concisely explains why.

However:

During Miller’s case, the general ‘Remoaner’ camp were united in saying that Article 50 was irreversible. They adopted that position because they needed it for Miller’s argument to work. Lord Pannick himself acknowledged that, if Article 50 were reversible, his argument failed. (For the avoidance of doubt, I do not brand Lord Pannick as a Remoaner!)

Miller won, but Parliament did not block Article 50 (as the Remoaners had hoped it would).

So now the Remoaners are trying plan B: argue that Article 50 IS reversible after all, in the hope that Parliament will duly change its mind and reverse it.

I find this volte-face distasteful and intellectually dishonest. The British people have endorsed Brexit twice now: first, directly, through the referendum itself; and second, indirectly, through the 2017 general election (where over 80% of the vote went to parties which accepted that Brexit is happening.) These results cannot be ignored. It’s time to accept democracy, accept the reality of Brexit, and turn our attention to making it work for the UK as best we can.

Anonymous

Ah, the hive mind of the remoaners is subverting our democracy. Never mind the individual lies of the Brextremists.

Anonymous

Democracy sucks. I voted for a party that I hate, but only because I hate it less than another party. I hate the view of each party when it comes to Brexit. Yet the system meant that the more productive use for my vote and the one that stood best chance of bettering my life was to do as I did, and not to vote Lib Dem.

Leave won based on a bunch of lies. If put to a proper second referendum leave would not win again.

Anonymous

If put to a proper second referendum leave would not win again.

I wish that were true, but I’m not sure it is. The great majority of the population still would not be able to properly process the arguments, and the Brextremists would still be telling lies.

Just Anonymous

“If put to a proper second referendum leave would not win again.”

If that were true, the Lib Dems (and the SNP) should have experienced a surge of support in the recent election, as both parties ran on explicitly anti-Brexit platforms.

The Lib Dems won 4 seats but saw their vote share decline. The SNP lost 21 seats.

I’m sorry, but reality belies your claim.

Anonymous

I’m a Lib Dem but voted Labour purely to try and stop the insanity of the Tory party. There wasn’t really much of a choice and it’s FPTP – you’ve got to vote to beat the party you hate rather than who you want. Your argument would have a shred of merit in a proportional voting system.

Anonymous

This.

Also, the fact that people underestimated leave played in leaves favour. It was stupid but people didn’t vote because they felt they didn’t need to. Now they know. Particularly young people, the majority of which would vote remain. A lot of the old leave voters are now dead too. The younger vote turnout that boosted Labour in the general election would boost Remain. It would be a whitewash, 60/40 territory.

Anonymous

It won’t work for the UK. It will suck, it is economic suicide, and it must be fought at all costs. I’ll leave the UK if we leave the EU.

Anonymous

Not to mention Parliament passing an Act to authorise the serving of a notice the consequence of which is the UK leaving the EU…

Anonymous

No, it is not dishonest. The case was based on an agreed assumption, like many are, because it enabled the UKSC to rule on the applicable law at that point. Using assumptions like this is a common tool used to limit legal argument so that individual points can be tested without the court having to hear argument on every possible point and permutation. The Miller case made sure that a vote in Parliament was taken when needed, thereby making sure any Brexit process was legally sound. It was never going to decide whether we should actually Brexit, it was about how we do it.

The Brexit argument was in part based on “taking back control” of our laws and the sovereignty of Parliament. It’s odd that some now want to say, having sent one letter, the process is out of Parliament’s hands.

Just Anonymous

It is intellectually dishonest to adopts two mutually contradictory propositions depending on which one happens to suit your purpose at the given time.

Article 50 is either reversible, or irreversible. Pick one. And stay consistent.

If you’re going to argue that Article 50 is reversible, then you have to accept that Miller’s case proceeded on a false assumption, thereby reached an incorrect conclusion, and thus that the government in fact did not need Parliament’s permission to trigger Article 50.

Ayyy Nonymous

Ahem.

You did notice in the judgment that *both* sides agreed the Irreversibility point? That means the Government agreed.

That’s because the only court who can rule on the unilateral revocability point is the CJEU, and HMG feared having to go there for an opinion

Two outcomes:
1) Unilaterally revocable – Government loses its ability to railroad a Hard Brexit (which is what the BlueKIP nutters want)
2) Not unilaterally revocable – Miller case would have needed to be heard to resolve the Prerogative point

Not to mention that the Europhobe headbangers would have screamed blue murder at T.May referring a matter to CJEU, and that the delay involved in seeking the view would have delayed the process and would have risked allowing Bregret to take hold *before* the Quitling media narrative could begin to push No Way Back

Anonymous

That’s journalists for you. Not as strange as basing a legal case on one proposition and not seeking to argue the exact opposite.

Anonymous

*Now seeking to argue the exact opposite.

Not Amused

Once again i am boggled by how lawyers are dealing with this.

The only relevant question is: is article 50 unilaterally reversible by the state giving notice. To which the only credible response is:

No one knows because Lord Kerr is an extremely bad draftsman.

Corbyn. Symphathiser

The EU has made it clear that Brexit can be stopped entirely if we just say, “actually, this is a load of old nonsense.”

I look forward to playing you at a game of Boggle.

World ( Mental) Health Organisation

They have now created a fictional world to live in.

Fantastic.

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