Brexit: a story of a brainstorm

31st August 2016

Today the Cabinet are having an away day, where they will “brainstorm” (horrendous verb) what they mean by Brexit.

Seriously.

You can almost imagine the Prime Minister standing there with a white flipchart and a new pack of marker pens, trying to get the awkward silences to end.

You can also imagine “Brexit” written on the top of the first sheet of the flipchart, with the “t” a little crushed, as not enough room had been left for it.

Under the word “Brexit” the rest of the sheet of the flipchart, of course, remains blank.

“Well, lets think about what Brexit does not mean,” says May.

Silence.

“Does it mean…not….Brexit?” ventures one minister.

Silence resumes.

Suddenly the prime minister takes a new marker pen, and draws a line across the flipchart sheet.

“This is our red line,” she says, proudly.

Silence again.

“Let’s have coffee and resume this shortly.”

Everyone nods.

In the conference room the flipchart is now ignored.

“I do like these biscuits.”

*

This was originally on Twitter – some the replies to the tweets are brilliant.

**

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Brexit Diary: recent news on the “high politics” of Brexit in Westminster and Whitehall

(These Brexit Diary posts collect recent news and commentary.)

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Today’s Brexit diary contains recent news on the “high politics” of Westminster and Whitehall.

Brexit is not inevitable, says former civil service chief, Guardian, 27 August 2016

Few things are inevitable in human affairs, and this was a statement of the obvious by O’Donnell.  This observation, however, was useful as a peg to hang the civil service stories below.

The following two links are also not really news: the government’s long-standing position is that Article 50 can be triggered without a parliamentary vote.  This contention will be tested by the High Court in October, with a likely Supreme COurt hearing in December.

Theresa May will trigger Brexit negotiations without Commons vote Telegraph 27 August 2016

Theresa May ‘acting like Tudor monarch’ by denying MPs a Brexit vote Guardian 28 August 2016

The following links are news.  What is significant is that there is still no settled government position on the shape of Brexit.  There can be no surprise that in the absence of such a policy, splits are emerging.

Theresa May calls Brexit meeting amid reports of single market split Guardian, 28 August 2016

Chancellor blamed as cabinet splits over single market Sunday Times, 28 August 2016

The prime minister tells civil servants to “get on” with implementing a policy which does not exist yet:

Theresa May tells pro-EU civil servants to get on with the job of delivering Brexit Telegraph 28 August 2016

The prime minister also tells her cabinet to come up with a Brexit policy:

Theresa May, the Brexit enforcer, orders her Cabinet ministers to come up with blueprint for EU exit Telegraph 28 August 2016

And already the civil service (on whom the success of Brexit will depend) are being attacked for not implementing a policy which does not exist yet:

Whitehall must not try to block Brexit Telegraph, 28 August 2016

**

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Brexit Diary: the clash of political will and reality, continued

22nd August 2016

(These Brexit Diary posts collect recent news and commentary.)

The story of Brexit is about the clash of political will (the referendum result and express government policy) and the realities of trade, devolution, and government capability.  All because the government wants something to happen, it cannot just be made to happen.

In respect of trade, here are a couple of interesting, well-informed but sceptical  pieces.   First, George Magnus – one of the best follows on Twitter on Brexit and trade questions, at the Sunday Times:

And this is an excellent blogpost by Jeegar Kakkad on whether the UK could emulate the Canada-EU deal:

On devolution, there is news of another Article 50 claim in Northern Ireland – and you should ask anyone who confidently assures you “Brexit will happen” to explain how these Good Friday Agreement issues will be addressed.  It may well be that they cannot be dealt with.

Back in Whitehall: it is reported there will be 32 senior civil servants at the Department for Brexit.   The Observer assesses the unpromising start of the Brexit ministers, and the Telegraph describes how the ministers are fighting over space and resources.

The frustration at the lack of movement is becoming louder.  The Spectator announces it is time to start defending Brexit, and the Telegraph reports Iain Duncan Smith is demanding that Brexit talks as soon as possible.  In the Guardian, Fabian Zuleeg says Brussels is also getting “impatient”.

And so what is the solution? In the Sunday Times:

Theresa May will harness the spirit of Britain’s Olympic “world beaters” to draw up a blueprint for Brexit — as Team GB’s performance in Rio was hailed as the greatest yet by a British team.

A senior cabinet minister has revealed the government will adopt the same approach of backing “excellence” that has catapulted Team GB to Olympic glory as the master plan for economic prosperity outside the EU.

This must be the daftest thing yet said on Brexit, by either side, and against tough competition.  If the government believes the “blueprint for Brexit” is somehow “backing” winners, it should be remembered that this is only two months after government backed the losing side in referendum…

**

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Brexiteers and the story of the would-be time-traveller

2nd August 2016

There is a story about a child that wants to travel back in time.

The child goes to one adult – a silly adult – and tells them about wanting to travel back in time.

The silly adult tells the child: you cannot, this is not possible.

The child then goes to another adult – a wise adult – and tells them about wanting to travel back in time.

The wise adult tells the child: have a go, and see what happens.

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There are some Brixiteers who think Brexit is easy.

To take two prominent examples , here is Conservative MP Bernard Jenkin:

“Leaving the EU is in principle straightforward; much easier, in fact, than joining since it is not necessary to change domestic laws and regulations. All the laws and regulations that apply by virtue of Britain’s membership can remain perfectly aligned with those of the rest of the EU until they may be changed at a later date. This is how the UK gave independence to the countries of the British empire.”

And here is another Conservative MP, Jacob Rees-Mogg:

Leaving the European Union is unquestionably a big decision but it is not a particularly complex one. Article 50 is easy, the royal prerogative is clear and the law is stable. Additionally the political will also seems to be present to make it happen and to work.

Please read the pieces in full, if you can, so you can be sure they are not being misrepresented.

My view, for what it is worth, is that Brexit will not be easy.

But if the proponents of an easy Brexit are right, then the view that Brexit is hard will be disproved soon enough.

So there is no point arguing about it.

Like the wise adult of the story, perhaps one should just say to the proponents of an easy Brexit: have a go, and see what happens.

**

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Article 50 and Brexit: Are Estragon and Vladimir on the move?

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13th July 2016

What can we make of the cabinet appointments this evening of Boris Johnson, Liam Fox, and David Davis?

Do the appointments mean Brexit is more likely or less likely?

Are they the Three Musketeers – Three Brexiteers – or are they the Three Stooges?

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Of the three appointments, the one which should worry Remainers is that of David Davis.  It is a serious appointment.  He was an outstanding Chair of the main Commons watchdog committee, the Public Accounts Committee, and a competent Europe minister.  He is not a politician to underestimate.

That said: there is the irony that, because of his genuine civil liberties concerns, he is currently suing the UK government at the European Court of Justice so as to enforce EU law.  Not the most appropriate thing a Brexit minister should be doing, one may say.

But what difference will the appointment make?

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On the day of the referendum result, I contended that the longer the delay, the less likely the UK would send the Article 50 notification.

This is not because of any lack of political will: it is because of the sheer policy and legal challenges of Brexit are such that delay will invariably mean events and excuses will come into play.

I still hold that view – but the appointment of a serious player like Davis does prompt a slight wobble.  If there is any Brexit politician who can do it, it would be him.

Estragon and Vladimir are still not getting up, but one could detect a twitch this evening.

**

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Cavaliers and Roundheads: four thoughts about the Article 50 litigation

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11th July 2016

There are three potential cases against the government on Article 50, demanding that the ultimate decision on Brexit be made by parliament and not the prime minister under the royal prerogative.

Two of these cases (the Mishcon de Reya and Dos Santos cases) are described in my post here, and the third (the Bindmans case) is set out at Jolyon Maugham’s blog – including a detailed letter which should be read in full.

Of the three:

– the Mishcon de Reya case is the most well-known (thanks to a savvy press release);

– the Dos Santos case the one most progressed (with a claim form and a date of 19 July 2016 for a preliminary hearing), and

– the Bindmans case the one where most information is in the public domain.

It is disappointing that in such potentially far-reaching public interest cases, there is so far little information in public domain on two of the potential claims.

That said, there are perhaps four general points worth making.

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First: the government will not want to litigate these cases.

This is for two reasons.

One is obvious: the government will not want to lose a case on this particular issue.

The other is more subtle: the royal prerogative is a valuable tool for the executive.  The fiction is that it is exercised on behalf of the crown by her majesty’s ministers. The reality is that it gives ministers legal powers without any visible means of legal support.

The possibility of having an adverse decision on the scope of the royal prerogative will make government lawyers highly nervous – especially with, say, David Pannick (the barrister on the Mischcon de Reya case) on the other side. Who knows what the High Court, the Court of Appeal, the Supreme Court could rule… (government lawyers would be shuddering at this point).

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Which leads us to the second thought: these cases may not get to trial.

In two of the case, this is a trite observation: there does not even seem to be a formal “letter before action,” let alone an actual claim.

But the government really will not want these claims to progress, and so the government will want to get rid of them if they can.  This may be by successfully opposing the claims at the preliminary permission stage – or it may be that the government offers an apparent concession, such as a promise that there will be a parliamentary vote before an Article 50 notification – formally distinct but effectively connected.  I deal more with this possibility at my FT post today.

What I think the government may say that there will be a vote to repeal (or amend) the relevant EU legislation, but any repeal (or amendment) will then be suspended pending the outcome of the Brexit process.  If the vote is lost, however, the Article 50 notification cannot proceed.  It would be giving the Article 50 decision to parliament in all but legal form, whilst preserving the precious royal prerogative.

If faced with such a concession, the courts may be minded to leave the case alone.

*

Which brings us to the third thought: the courts will not be eager to decide this case.

This is not because the case lacks inherent interest: members of the legal profession have been considering these questions since law school, and the respective powers of the crown and parliament was probably the first topic they wrote an essay on.  Judges would love to discuss this case in a seminar or at their bench table.

But they will not want to decide this one in court unless they have to.  This is for two reasons.

First, it is ultimately a political question which should be resolved by parliament. It may well be that the question can be framed in a legal(istic) way about the correct construction of Article 50 and what “constitutional requirements” are or are not. But the judges will not want to be dragged in easily into a political dispute about the outcome of a popular referendum.

Second, the remedies sought in these cases appear to be “discretionary” remedies – such as declarations or injunctions.   A discretionary remedy – unlike the award of damages in a contract or tort claim – is not something a claimant can demand as of right. Even if a claimant can make out their case, the court can still decline to grant the remedy if it serves no useful purpose or is futile.

So even if the case is heard, it is not certain the court will then do anything.

*

Which leads to the final point: there is no clear legal outcome to the claims.

Nobody knows for certain what the courts would decide, even if the courts are minded to hear the case and grant a remedy.

Views differ. On the “parliamentarian” side you have Pannick and other distinguished constitutional lawyers, and on the (forgive me) “cavalier” side you have Professor Mark Elliott, perhaps the UK’s leading public law academic and others. These people disagree fundamentally and in good faith (and in good humour).

It is not a “given” that the parliamentarians will win, even with crowd-funding and so on.  The fact that government lawyers will want to head off the claim can be explained by prudence and not resignation.

(For what it is worth, I think both the parliamentarians and cavaliers are correct, and Article 50(1) is wide enough to cover both the exercise of the prerogative and a parliamentary Act as a decision).

*

So in summary: you have cases the government wants to close down, cases which the courts will hear and decide only if they have to, cases which may not lead to any decision or remedy, and cases where it cannot be predicted which side is most likely to win.

Whatever happens will, however, be fascinating for anyone interested in law and policy.

**

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The two Article 50 legal claims – the current details

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8th July 2016

There are a couple of legal claims in the news about Article 50. (On Article 50 see my post here.)

The Mishcon de Reya claim

One is connected to the law firm Mishcon de Reya.  The potential litigants have not been disclosed.

This potential claim has been widely reported in the media.  The press release is here.  I made a some comments on this claim at this post.

I understand that this claim is still at pre-action correspondence stage. There has been no claim form or letter before action.

The Dos Santos claim

The other claim is in the name of Dier Dos Santos, a UK citizen.

This claim is at a later stage, and today it was reported that there will be a hearing on 19 July 2016.  I understand that this will be a permission hearing, rather than a substantive hearing.

So far I can establish the following about the claim.

The claim is by means of an application for judicial review.

The claim was issued on 28 June 2016 and served the same day.

It was issued at the High Court in London.

The remedies sought seem to be (a) a declaration and permanent injunction and (b) an interim injunction.

The respondent was originally stated to be HM government, but I understand it now in the name of the Chancellor of Duchy of Lancaster (the somewhat daft formal title of the Cabinet Office minister Oliver Letwin).  In effect, however, the respondent will be the Crown.

The declaration sought is that a “decision” for the purposes of Article 50(1) has to be a decision taken by parliament, and not under the royal prerogative.

(A declaration is a discretionary remedy of the court which “declared” the correct legal position where there is a dispute.  It is a remedy sometimes used when there is no dispute of fact, only a genuine and important dispute as to the meaning of a legal instrument such as a statutory or a contractual provision.  The court can the “declare” what the provision really means – but only if it wants to. As a discretionary remedy, no person has the right to such a remedy.)

I believe the permanent injunction sought is so as to restrain the UK government from taking (or purporting to take) such a decision under the royal prerogative and/or making the notification under Article 50(2).

The interim injunction sought is to have an order in place stopping the UK government taking (or purporting to take) a decision under the royal prerogative and/or making the notification under Article 50(2) until the High Court has dealt with the case.

The reason why the injunctions are required is that once the notification is received by the EU Council, the horse, the genii, and the cat are all out of their respective receptacles, and it passes from being a domestic matter and becomes an EU matter.  When the notification is received by the Council then there would be little that a domestic court can do.

**

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Parliament, Article 50, and the Leave Paradox

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4th July 2016

The news that there may be a legal case about whether any Article 50(1) decision has to be by Act of Parliament perhaps creates a paradox for the Leave side.

The paradox can be characterised as follows:

Leave Supporter: “We want our own Parliament to be sovereign on matters to do with the EU!”

Response: “Like on whether to Leave then?”

Leave Supporter: “No.”

Those who campaigned Leave so as to uphold Parliamentary Sovereignty are now unhappy at prospect of Parliament being sovereign about whether to Leave.

**

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The Mishcon de Reya legal challenge on Article 50 – some thoughts

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3rd July 2016

News has just broken of an Article 50 legal challenge being proposed by the well-known London law firm Mishcon de Reya.

The press release is here.

Here are some initial thoughts.

First, it is not disclosed who the potential claimants are.

Given that the claim goes to a fairly fundamental topic of public policy, it is rather odd that is not disclosed who is proposing to bring the claim.  The press release mentions there has already been correspondence with the government lawyers – so presumably the potential claimants are known to the government.

Second, it is not clear what has actually been done.

“Legal steps have been taken” could mean anything from mere  pre-action correspondence, to a formal Letter Before Action, to the issue of a formal claim. “Legal steps” has no particular meaning at law – it is a press-releasy sort of phrase.

Third, it is not clear what remedy is being sought.

A good guess that it is for a “Declaration” on what Article 50(1) requires as a matter of English (and Welsh) law. A “Declaration” is a discretionary remedy of the courts (you are not entitled to one just because you ask for one) when the correct legal position on something which needs to be established.

(Presumably there will also have to be similar actions in Scotland and Northern Ireland too – it cannot just be assume that all UK jurisdictions will follow what a London court says on this.)

I cannot think what other remedy the claimants could be seeking – for example, a court would not lightly injunct the government from making a notification, and there is no decision for the courts to quash.

Fourth, two of the barristers mentioned as having been instructed have recently published articles on why an Act of Parliament is required for the purposes of Article 50(1).

David Pannick’s article was in The Times,  and Tom Hickman co-authored this at the UK Constitutional Law Association site.

Fifth, it will be interesting what the government’s response will be.

If the government says in response that an Act of Parliament is what will be required then the litigation will go no further.

Sixth, if the action proceeds, then there is the prospect (if permission is granted to bring the claim as there is a permission stage before a substantive stage in judicial review cases) of a public hearing – with the incomparable Pannick as one of the advocates – and then a reasoned decision on what is required by Article 50(1).  It may even go quickly to the Supreme Court.

This would be a fascinating case to say the least for anyone interested in law and policy.

Last, if the government concedes there has to be an Act (or if – dramatically – the courts declare that an Act is required) then Brexit becomes even less likely.

**

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Does Article 50 require an Act of Parliament? A brief thought-experiment.

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3rd July 2016

Here is a question: would a decision by the United Kingdom to withdraw from the European Union require an Act of Parliament?

On this question, one week or so after the referendum vote for Leave, it may be fairly said that “views differ”.  Some constitutional lawyers say one thing, others say the other.

In favour of an Act of Parliament being the only way, see David Pannick in The Times, Nick Barber, Tom Hickman and Jeff King on the UK Constitutional Law Association site, and Adam Tucker at the same site.

In favour of it being just one means among others, see Carl Gardner at Head of Legal and Mark Elliott at Public Law for Everyone.

When the views of experts differ it is a temptation to just shrug with despair.

Nobody would blame you.

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This post sets out a contention – based on a thought-experiment – that an Act would not be required.

An Act could be a means of the decision being made – on that point views do not differ – but it is not the only way.

What follows is that contention – but please note this post is a (minor) contribution on one side of a debate rather than an (attempt at) objective exposition of an area of controversy.

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First, let’s remind ourselves of the relevant parts of the first two paragraphs of Article 50 (I have omitted some not relevant text):

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

2. A Member State which decides to withdraw shall notify the European Council of its intention.

The key question is what is a “decision” in accordance with the UK’s “own constitutional requirements”.

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Second, let’s consider a thought-experiment based on a counterfactual situation.

Think back to last Friday, the day the result of the referendum came in.

Consider now the following facts:

– a national referendum had taken place in accordance with a statute passed for the sole purpose of that referendum;

–  33,577,342 voters voted in that referendum (72% of the electorate);

– there was a clear (if narrow) vote in favour of Leave;

– the Prime Minister had said expressly at the beginning of the referendum campaign that “If the British people vote to leave there is only one way to bring that about – and that is to trigger Article 50 of the Treaties and begin the process of exit. And the British people would rightly expect that to start straight away”; and

– the government had expressly stated during the campaign “This is your decision. The government will implement what you decide”.

Taking these five facts, imagine now the Prime Minister (by himself or after consulting with Cabinet) taking the decision (or purporting to take that decision) on that Friday that the UK had decided to withdraw from the European Union in accordance with its own constitutional requirements.

There had been a special referendum passed by Parliament for the purpose, there had been a heavy turn-out and a decisive result in the vote in that referendum, and the government had stated clearly that the decision would be implemented and the Article 50 straight away.

Imagine now the Prime Minister that same Friday had been minded to notify the European Council of such a (purported) decision.

What would be the legal position if some wily litigant- lets call her Ms Haddock – had been quick enough to make a legal challenge that same day?

I cannot see how the courts would have seen the claim as justiciable: there had been a special referendum with a clear result on a high turn-out and the government had moved to implement the decision straight-away as it clearly stated it would do.

Even if the court had allowed Ms Haddock’s claim to be heard, I cannot see how it would have quashed the decision or injuncted the Prime Minister from notifying the European Council.

Not only would there have been an uproar as the courts blocked the popular decision (and significant economic instability), one suspects the courts would have said that to interfere in the decision and the notification would be a violation of the separation of powers.

Our litigant Ms Haddock would have lost.

In other words: for the Prime Minister (with or without cabinet) to make such a decision and notification would not be unlawful.  It would thereby be lawful.

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The thing about questions of law is that the legal position on day one should normally be the same as the legal position on day ten, if the law and the facts are the same.

If so, then if the Prime Minister today – or in September, or whenever – took the same decision and made the notification then it would be just as lawful on day ten than on day one (assuming the law or facts have not changed).

As a normative view, I agree that an Act of Parliament (or a resolution or motion in Parliament) should be the method: the referendum was not legally binding – whatever the government said – and such a significant decision should be made by Parliament.

A vote by Parliament would also provide convenient cover for a government reluctant to press the Article 50 button.

(It may well be that the legal position changes, and Parliament passes a resolution or motion that the final decision has to be made by itself.)

But I cannot see how a decision on notification made by the Prime Minister on the day of the referendum result itself would have been quashed or injuncted by the courts, had Ms Haddock brought a claim to block it.

If that was true on that day, that would be true now, all other things being equal.

And if this is correct, then presumably an Act of Parliament is not the only means by which the Article 50(1) decision can be lawfully made.

**

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