Overseas Chambers of Peter Harris

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The High Court's judgment in the Article 50 litigation

November 3rd 2016

The English High Court's judgment in the article 50 litigation was read out and handed down this morning. If your can't get it on the Judicial website; a pdf can be found here.

Be very careful on the use of the term "common ground" in this judgment. That is no more than a means deployed before the Court of avoiding addressing issues that might have sunk the entire arguments on both sides, the Claimants and the Governments.

Certain of those grounds are no more than sinkholes in the wider context of what both Parliament and the Government might be ale to do in the wider context of the duties restrictions and responsibilities owed to the Crown Dependencies and Overseas Territories in this context, if not in other areas.

Comment to follow soon on issues concerning the Crown Dependencies and the United Kingdom's associated territories ..... . Note as a matter of principle that although ECA 1972 mentions the Crown Dependencies at s.2. (6) it is only to avoid repugnancy, within the United Kingdom between a UK Act of Parliament, and any Legislation passed in the CDs expressed to implement an EC obligation. That was to protect what has become the internal market within the United Kingdom and in its relationship with the European whole.

In reaction to the Northern Ireland proceedings on a similar issue, the High Court stated clearly that the Irish judge should have started analysis from what it considered the appropriate starting point namely 104 (1) " .... the effect of the ECA 1972 on domestic law and the Crown's prerogative powers". "

Suffice it to say for the moment that the United Kingdom Parliament cannot legislate and in any sense "negotiate" for the Crown Dependencies without their assent.

Sorry, ladies and gentlemen, the Duchy of Normandy started its invasion of England, Wales and then Ireland in 1066, the De Carteret family settled now at Saint Ouen was on the rôle - and you did not have a legal system or a common law of your own at the time. The previous invasions of the Anglo-Saxons removed any prior remnants of British law known to Alfred or the Venerable Bede. The privilege accorded and afterwards confirmed by John I (Sansterre) was to retain our own laws and customs. The Norman then British crown was no more than a feudal owner of land in the Islands amongst others. Dependency does not mean a form of addiction to overbearing interpretation - it is like, the crowns en droit concerned, "Peculiar" in the true constitutional sense of the term.