High Court’s Article 50 judgement is best outcome for all

For the first time in a while, I woke up to headlines that gave me a glimmer of hope that not all has completely gone to the dogs:

Screen Shot 2016-11-03 at 12.36.32.png

I took the time to read through the full judgement (PDF), which is something of a master class in British constitutional law and statutory interpretation; full of exactly the points that I and other legal commentators have been making since the EU referendum was announced relating to British Parliamentary sovereignty.

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Specifically, the judgement superbly outlines and solidifies limits on the Royal Prerogative, which is a power oft-criticised for its vast, unchecked reach, and past abuses.

“The powerful constitutional principle is that the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”

Essentially, the judgement was that based on the Diceyan principle of Parliamentary Sovereignty; that it is the British Parliament who must give the Article 50 notification; not the Government via the Royal Prerogative.

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Despite the strong, and reasoned nature of the judgement, the response from those who voted to leave has been almost unbelievable, with Conservative MPs declaring that the Government should not be bound by unelected judges (which is literally, the entire basis of the rule of law), and that the decision to require Parliament’s involvement is ‘disgraceful’.

Dictionary definition of contradiction in terms.
Dictionary definition of contradiction in terms.

To be clear: today’s judgement was not about whether or not we leave the EU; instead, it simply re-asserted the sovereignty of the British Parliament, which is exactly what the leave campaign was arguing had been lost in the first place. If Parliament does decide to completely refuse to trigger Article 50, then that would arguably be a disgrace. The referendum was held, and the outcome should be respected; something that I have repeated time and again on this blog. However, Parliament should be involved.

The UK voted to leave the EU, yes, but the kind of exit was never specified. We were faced with the prospect of having the most extreme form of severance possible, thrust forward at the whim of an unelected Prime Minister. Instead, now we have Parliament involved in determining the kind of exit.

The Government argued in it submissions that Parliament would most likely have the chance to vote on any deal that was reached with the EU before it was implemented, and that it wasn’t necessary to have Parliamentary approval to trigger Article 50. The Court quite sensibly rejected this notion, on the basis that by the time any such vote came around, there is the real chance that the time limit imposed by the European Treaty would run out, and leave us with no rights or compromises.

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By all means, get angry if Westminster completely refuses to ever trigger Article 50, but to be outraged at the principle that the British Parliament should be involved in the implementation of one of the most significant political processes of our lifetime is plainly just nonsensical. To reiterate: today’s question isn’t about whether or not Article 50 should be triggered, but who has the power to do it – on behalf of the people.

Of course, all of this is subject to a final appeal to the Supreme Court, so we will see what happens in the next leg.

I’ll wrap up with this text, taken from the Fire Brigades Union case, and quoted in today’s judgement:

R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
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Common Brexit Legal Myths Debunked

Legal myths and inaccuracies have been rampant in the days following the outcome of the EU referendum. I collected these as I sat sipping leche de pantera in sunny Barcelona, and have put together an explanation for each of the biggest howlers below.

‘The referendum was only advisory, not legally binding.’

No, the referendum is not legally binding – but that should be of no surprise, as no referendum in the UK ever is.

The response from a lot of folk at this point is to reference the 2011 referendum on whether or not to adopt a system of proportional representation for Westminster. This is thought of as a referendum where the result would be ‘legally binding’ on Parliament. Part of the relevant language of the Parliamentary Voting System and Constituencies Act 2011 that lends itself to this view is:

8Commencement or repeal of amending provisions

(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—

(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and

(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.

(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.

(3)An order under subsection (1)

(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but

(b)does not affect any election held before the first parliamentary general election following that day.

Rather than binding Parliament to a decision, this simply sets out the process by which they would be expected to implement the result in a statutory form. That in of itself does not impose a legal obligation on Parliament to actually do so. Even if it did, the doctrine of Parliamentary Sovereignty means that it is impossible for Parliament to bind itself in such a way. Just as the statutory recognition of the Scottish Parliament’s ‘permanence’ is symbolically important but legally meaningless, the same applies here. Politically, expectations may be set by statutory wording, but legally there is absolutely nothing to stop Parliament ignoring the result of any referendum.

The nature of the referendum does come into play when considering another one of the myths though, so we will come back to it later on.

From my own personal, political standpoint (rather than a legal one):

When it comes to the ‘advisory’ part of the claim about the referendum, it is a word that has conveniently only cropped up in the aftermath of the result, usually to aid a particular position. Changing the expectation of referenda in this way is a dangerous game. We should not start to assume that a referendum result will not be implemented by default, and that the Electorate are only giving their ‘opinion’, just because it technically isn’t legally binding under the constitution. If Parliament wish to ignore the expressed will of the people, we should not let them away with the political consequences of doing so.

At no point in the lead up to the EU referendum was it ever suggested that the result would only be ‘advisory’. To pretend otherwise would be a disgrace, and do a massive disservice to our Democracy. Imagine the fallout of Scotland had voted to leave the UK, only for the outcome to be dismissed on the basis that the referendum ‘was only advisory’.

The Scottish Parliament can veto the referendum result.’

Ah, wouldn’t it be glorious if it were true. Sadly, it’s not. This is a myth that appears to be caused, or at least perpetuated by the media’s misleading coverage.

The Sun's ill informed title
The Sun’s ill informed title. What a surprise.
Misleading headline from the Independent
Misleading headline from the Independent
The BBC's original headline
The BBC’s original headline

It’s worth noting that the BBC have since updated the story’s title to be more accurate:

BBC's updated veto title

There are some brilliant responses already that deal with this question in depth. As great as they are, they tend to approach things in a more academic fashion – which isn’t necessarily all that clear for those without a legal background. For this reason, I think it’s worth reiterating the position in a more straightforward fashion.

In short, the Scottish Parliament has no legal power to ‘veto’ any decision of the British Parliament – and particularly not this one. Westminster is sovereign, and can make or unmake any laws it likes, including the very existence of the Scottish Parliament if it so chose. (Again, see my previous blog on this very topic for more). There would of course be political fallout to any of these decisions, but legally nothing would stand in their way.

If there is no veto, what was all the media fuss about then?

There is a ‘constitutional convention’ that Westminster would seek legislative consent from the Scottish Parliament before legislating on any area that would affect devolved matters, which can be thought of as a sort of ‘gentleman’s agreement’; an understanding that the elected representatives of Scotland should at least be consulted before Westminster exercises their sovereign power to over-rule them. This could be (shakily) equated to a parent choosing to knock before entering into their teenagers’ bedroom. Nothing would stop them from waltzing in unannounced, but they make the choice not to out of respect for the other person’s individual autonomy. If parents continually disrespect this unwritten social understanding, then the overall relationship will suffer as a result.

In the interview with Nicola Sturgeon, you will notice that she never once mentioned the word ‘veto’. Rather, she stated that she would ask the Scottish Parliament to refuse to give their ‘legislative consent’, something which they are perfectly entitled to do. This may well pose a significant political and constitutional issue for Westminster, but nothing would prevent them from pulling out of the EU anyway.

As it stands, there is a very real chance that the Scottish Parliament would never have the chance to refuse to give their legislative consent anyway. If Westminster were to vote on the issue, this would be far more likely, but…

‘To leave the EU, the British Parliament will have to vote on it.’

Nope.

The idea here is that in order to give the now infamous Article 50 notification to commence the process of the UK leaving the EU, it will have to be approved by the Westminster Parliament – and potentially even the House of Lords. Those looking to find a way to avoid exiting the EU are hoping that since a majority of MPs are opposed to leaving, they will refuse to do so, scuppering the whole thing.

What people who bring this up forget is the existence of the ‘Royal Prerogative’, a curiosity of the British constitution that allows for action to be taken (usually on the advice of a Prime Minister) without requiring Parliamentary assent. This is the norm for international treaties, and it’s precisely the mechanism David Cameron was expected to employ before he dropped the mic and kicked the ball down the field for somebody else to deal with.

Parliament could block the repeal of the European Communities Act 1972 when it came time to do so, but if the Article 50 notification process had already been invoked, this would be completely pointless. After 2 years (unless there was a unanimous agreement to extend this period), we would be out of the EU under European law, whilst still domestically bound by the requirements.

‘Under European law, the result of the referendum is invalid as less than 65% of those who voted did so to leave.’

This particular idea seems to have come from people desperately reading various laws to come up with some way to nullify the vote’s outcome. It’s also completely incorrect, resulting from a simple misinterpretation of the law.

Edit: Apparently this error is the basis of a petition signed by over 4 million people to call for a second referendum. Even more important to clear it up.

The wording that gives rise to the confusion is found in our old friend Article 50 of the Treaty of the Functioning of the European Union. Section 4 states:

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

and Article 238(3)(b) says:

(b) By way of derogation from point (a), when the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.

Rather than imposing any requirement on the percentage of people who have to vote to leave the EU in a Member State, this sets out the framework for how the European Council will go about negotiations should that Member State decide to leave. The 65% figure relates to the makeup of the group that will enter into those negotiations.

Further, Section 1 of Article 50 TFEU is pretty clear:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

If the UK decided to draw straws, or have a haggis flinging competition to decide whether or not to leave the EU – that would be perfectly acceptable (so long as it complied with other general EU law principles). The point is that the decision making process is something that is entirely up to the Member State in question to determine. Again, this provides a neat segue into the final incorrect assertion:

‘The EU will force the UK to leave if we don’t trigger Article 50.’

If you listen to the President of the European Commission, Jean-Claude Juncker, it would sound like the UK is about to be kicked out of the EU, even if it doesn’t invoke Article 50. However, there is nothing in the European treaty that allows for that possibility.

As things stand, the UK is arguably still involved in the decision making process of whether to leave the EU or not, in accordance with the British constitution. The referendum is hugely important, and Westminster should ignore it at their peril – but given that it isn’t legally binding on the British Parliament, then it means absolutely diddly squat under European law.

Until the Article 50 notification is invoked, legally absolutely nothing has changed between the UK and the EU. This is why Juncker’s smart-ass riposte to UKIP in the European Parliament isn’t all that clever at all. Politically, pressure is mounting, and feelings are obviously running high, but the UK remains a full Member State – something which everyone would do well to recognise.

If you’re looking for some good legal resources (some with particular political slants), check out the following blogs:

https://publiclawforeveryone.com/

http://barristerblogger.com/

http://lallandspeatworrier.blogspot.com/

http://jackofkent.com/

Spot the difference

Apparently non British, Irish, or Commonwealth citizens will not be allowed to vote in the upcoming EU referendum in the UK.

I haven’t read into the actual law on this, just the media coverage, so caveat emptor, but:

More than 1million foreigners living in Britain will be banned from voting in the EU referendum, the Conservatives have announced, in a significant boost to Eurosceptic campaigners.

It comes after Eurosceptic MPs confronted ministers over the issue amid concerns that pro-Europeans could effectively rig the result by giving EU citizens the decisive vote.

(source)

The language we use is important.

Isn’t it interesting that here we see people living in the UK described as ‘foreigners’ – setting up an instant division – whilst the Scottish Government during the independence referendum process spoke not of ‘foreigners’, but of ‘the Scottish people’, irrespective of where they were from originally?

Isn’t it interesting that the result of the independence referendum was based precisely on the votes of the people who lived there, and not some ethnic idea of what Scottishness is supposed to be? Isn’t it interesting that this wasn’t seen as ‘rigging the result’, but as an integral part of it?

I don’t believe in ethnic politics. I believe in civic politics. Great Britain is a fundamentally racist construct that needs to be dissolved. The sooner the better.