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.

*

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.

*

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”.

*

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.

*

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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Article 50: where are we now?

26th June 2016

Law and politics are separate things, and they do not often overlap.  It is rare that politics is driven, or even shaped, by legal process or any legal issue. But it does happen sometimes, and it is happening in the United Kingdom at the moment.

The legal issue is about a provision in a European Union treaty known as Article 50, which deals with Member States leaving the EU. The provision has a binary nature, in that the provision is either invoked (or activated, or whatever verb you want) or it is not. That is a legal question. If the provision is invoked, then there are certain legal consequences, and if it is not invoked then there are not those legal consequences.

Until a couple of weeks ago few people in the UK, and almost no politicians or pundits, knew or cared about Article 50.  What was important for them was instead something which had no real legal significance (even if politically significant), a non-binding referendum on whether the UK should remain part of the EU.  That referendum also had a binary nature: you either voted Remain or Leave.  As it happened, a couple of days ago, the clear (if not large) majority of voters voted Leave.

Now a problem in UK politics comes from a mismatch – a disconnection – between the result of the referendum vote and the invoking of Article 50. One has not automatically led to the other, and it may not do so.

The supporters of Remain campaign did not think about this, because they thought they were going to win.  But the supporters of the Leave campaign also did not think much about this, as it seems they regarded winning the referendum as an end in itself to bring about their desired “Brexit”.

It appears that few if any people involved in the campaigns on either side thought about what would come next in the event of a Leave vote.

On the day the result of the referendum became known, the Prime Minister David Cameron did not do something, and I believe the omission was significant (I have discussed this here).

In essence, Cameron did not invoke Article 50: no notification was sent to the European Union.  In my view, the failure to send the notification on the very day after the referendum will mean that there is a strong chance it will never be sent at all.

Since the referendum result there has been considerable media and political discussion and speculation about Article 50.  This post examines a few of the contentions which have been made about Article 50 – in particular the first two paragraphs of the Article – and sets out whether they seem good points or bad points.

The best place to start is the provision itself.  Article 50 contains a sequence of stages which are separated out as numbered paragraphs.  I will set out the Article as a whole, and I will then go through paragraphs one and two in particular.

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. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

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.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

So, to begin with, let’s look at paragraph one of Article 50:

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

What does this mean? I think there are two key elements to this.  The first is “decide” and the second is “in accordance with its own constitutional requirements”.

The reference to “decide” is crucial. It means there has to be a decision.  Without a decision, nothing else follows. It is the Marley’s Ghost of Article 50.

The provisions which come afterwards in Article 50 do not even become engaged unless there is a decision.

So what is a decision?

In my view a decision in a UK context may be one of a number of things:

– a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);

– as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);

– a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;

– a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

– any of the above following consultation with – or even the consent of  – the devolved governments of Scotland, Wales, and Northern Ireland.

Any of these would be a decision for the purposes of Article 50(1). And each would be decision it would be fair and plausible to say is “in accordance with [UK’s] own constitutional requirements”.

The UK does not have a codified constitution.  Some would say it has not got a “written constitution” (though my view is that the UK constitution is (largely) written down, it is just not written down in one place; it is instead spread out over many texts and legal instruments).

But what the UK constitutional does not have, at least not in any explicit way, are prescriptive “constitutional requirements” – where one could point to a text and say: A-ha! That is how to make a decision to exercise a power under an existing treaty!

Without such a helpful provision, one can only look at how formal decisions can be made by those with political power in the UK, and the five examples set out above seem to all meet the Article 50(1) wording: they are “decisions” made “in accordance with [UK’s] own constitutional requirements”.

What does not meet the Article 50(1) wording, either as a “decision” or something made “in accordance with [UK’s] own constitutional requirements” is the mere result of a non-binding referendum.

The referendum on EU membership was advisory not mandatory. It was deliberately drafted by Parliament not to have any legal consequences.  (The last UK-wide referendum, on the AV voting system, did have such a binding provision, but this time Parliament chose not to include one).

As such, the result of the poll has no more legal standing than the result of a consultation exercise.  It was a glorified opinion survey, and that is what Parliament intended it to be.

The result is not a “decision” for the purposes of Article 50(1) and, on this basis, the other provisions in the provision are not engaged.

(For more on this, see this excellent post by Professor Mark Elliott.)

In my opinion, it could have been open to the Prime Minister on Friday, either on the basis of the royal prerogative or after involving the cabinet or the Privy Council, to have made the “decision”.  It was not even a decision to enter a new international treaty but to exercise a power within an existing one; in other words, it is the sort of decision a Prime Minister can usually make.

When the Prime Minister chose not to make that decision, that was a matter for him; and he in turn said it is a matter for his successor.

There is also a point about the devolved governments of Scotland, Wales, and Northern Ireland.  If the governments of any of the devolved states chose to (somehow) formally to object to the Leave decision then that opens the issue of whether the decision to Leave “in accordance with [UK’s] own constitutional requirements”.  

This is not to say there would be a legal bar – but in an un-codified constitution, force is given to “conventions”, as well as laws.  It would seem that many believe it is arguable that there is a convention at play here – that there should be consent by the devolved governments, even if not an absolute legal requirement.

As Article 50(1) talks vaguely of constitutional requirements”  it seems to me that a convention may be as capable of being a constitutional requirement as any statutory provision.

In other words: say if the Scottish government chose to formally object to a Leave proposal then it may make it harder to make out that the “in accordance with [UK’s] own constitutional requirements” element of Article 50(1) has been satisfied.

This is not (strictly) a legal point – as Professor Elliott explains in another post – but I still think it can still be significant in terms of Article 50(1): for if a convention is breached then a constitutional requirement cannot have been met.

But in any case, it certainly will be significant in terms of politics.  Not a formal veto perhaps – but important.

We now come to Article 50(2):

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Remember this paragraph only even matters if there has been an Article 50(1) decision – if there is no decision, Article 50(2) falls away.  In effect, we don’t get past the fifth word of this rather wordy paragraph.

But it is not the fifth word which has been much-discussed over the last couple of days; it is the ninth – “notify“.

Once a decision has been made – which is not the case – then the decision shall be notified: there will be a notification.

What is a notification?

It has been suggested (including by those who should know better) that there could be a notification by accident or by informal means – a situation of “whoops I made a notification“.  This could be by the mere presence of the Prime Minister at a council meeting, or by an admission of the referendum result, or even one imposed upon the UK by another Member State or organ of the European Union.

Much of this speculation is utter twaddle.

The thing about words in formal legal document is that they must mean something and cannot mean anything.  A “notification” – especially of something which would have fundamental and (it would seem) irreversible legal consequences – is not something to be taken lightly, but should be taken reverently and responsibly in the sight of any number of lawyers.

In particular, the notification would have to be (a) formal and (b) intended to be communicated: that is what “notify” means.  There has to be no doubt (or room for doubt) as to what the statement means and that it was intended to be communicated as such.

One would think this was obvious.  But this has not stopped the “all depends” mongers coming with ingenuous hot-takes on what “notification” means.

But in any case, a spokesperson for the European Union has now put it beyond doubt:

“The notification of Article 50 is a formal act and has to be done by the British government to the European Council,” the spokesman said. “It has to be done in an unequivocal manner with the explicit intent to trigger Article 50.”

Indeed.  There will be no “whoops we notified the Council”.

The spokesperson’s statement also expressly confirms what was the position all along: that the if and when of the Article 50 notification is entirely a matter for the UK government.

It is up to the UK whether to make the notification and, if so, the timing of it.  This in turn means that the notification may never be made.

There is nothing – nothing at all – which the EU can do at law to force the UK to make that notification.

It may be an irony, but this is what sovereignty looks like.

**

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Why the Article 50 notification is important

 

25th June 2016

 “Is there any other point to which you would wish to draw my attention?”

 “To the curious incident of the dog in the night-time.”

 “The dog did nothing in the night-time.”

 “That was the curious incident,” remarked Sherlock Holmes.

– The Adventure of Silver Blaze

*

On Thursday 23rd June 2016 there was a historic referendum vote. A clear and decisive majority – though not a large majority – voted for the United Kingdom to leave the European Union.

And the following day, Friday 24th June 2016, something perhaps just as significant did not happen.  The UK did not send to the EU the notification under Article 50 of the Lisbon Treaty on European Union which would have commenced the withdrawal process.

The Article 50 process is the only practical means by which the UK can leave the EU. There are other theoretical means – which would mean effectively the UK unilaterally renouncing its treaty obligations – but as the UK wants to be taken seriously in future treaty making, such approaches would lose credibility.

And so unless and until the Article 50 process is commenced and completed, the UK will stay as a member of the EU.

In short: no Article 50, no Brexit.

It is worth taking a moment to read Article 50, as the detail of its provisions will shape what (if anything) happens next:

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. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

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.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

You will see from Article 50(1) that it is for the Member State to make the notification.  Nobody else can: not the European Parliament, not the European Council or its President, not the European Commission, and not any other Member States.

So unless the Article 50(1) notification is made by a Member State, the provisions of Article 50 do not get triggered to begin with.

And it is entirely a matter for the Member State to choose whether to make the notification and, if so, when.

There is an interesting question as to what “its own constitutional requirements” means in the case of the UK, which does not have a codified constitution: it is the sort of thing about which a thousand constitutional law essays could be written, and no doubt will be.

In my view, it could mean the Prime Minister simply making the notification as an exercise of the prerogative, following the referendum result.  Or it could mean a prior parliamentary vote.  But in either case, it is a matter for the UK.

If it is a notification which can be made by a Prime Minister once the referendum vote result was known, then it was a notification which could have been sent yesterday.

That such a speedy notification would be made was certainly the impression David Cameron sought to give when the referendum was announced back in February:

Then there is the legality. I want to spell out this point very carefully. 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.

Let me be absolutely clear how this works. It triggers a 2-year time period to negotiate the arrangements for exit.

At the end of this period, if no agreement is in place then exit is automatic unless every 1 of the 27 other EU member states agrees to a delay.

If you read this carefully, you will spot that it is quite deftly worded: Cameron was not committing himself to making the notification.  It was instead something which would be “rightly expected”.  He did not promise to meet that “expectation”.

But in his (resignation) statement yesterday, Cameron said something different about Article 50:

A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

So Cameron has gone from it being “rightly” expected that the notification be made by him straight away, to it being “right” that the decision be made later by somebody else at the time of their choosing.

The fact is that the longer the Article 50 notification is put off, the greater the chance it will never be made at all.  This is because the longer the delay, the more likely it will be that events will intervene or excuses will be contrived.

There will be those who will say: of course, the notification under Article 50 cannot take place straight away – don’t you realise it is part of a process? The UK should negotiate as much as possible before the notification is made and the two year deadline is triggered.

They may have a point, but pretty soon they will perhaps become self-conscious of explaining away why the notification has not been made quite just yet.  It may dawn on such people that the notification may never be made at all.

And so long as the Article 50 notification is not made, the UK continues to be a full member of the EU as it was before the referendum took place; indeed, as if the referendum never took place at all.

The Article 50 notification also has another side to it: unless and until it is made, there is no obligation on the European Union to negotiate with a Member State about to leave.

As I set out yesterday at the Financial Times, this means there is a stand-off:

Nothing can force the UK to press the notification button, and nothing can force the EU to negotiate until it is pressed. It is entirely a matter for a Member State to decide whether to make the notification and, if so, when. In turn, there is no obligation on the EU to enter into negotiations until the notification is made. There is therefore a stalemate. If this were game of chess, a draw would now be offered.

Stalemates can last a long time.  And unless there is political will to resolve it, this stalemate will not resolve itself.

There is no indication that UK politicians – including those like Boris Johnson and Michael Gove who are possible successors to Cameron – are in any hurry to make the Article 50 notification.

It is not impossible to imagine that the Article 50 notification will never be made, and that the possibility that it may one day be made will become another routine feature of UK politics – a sort of embedded threat which comes and goes out of focus.  The notification will be made one day, politicians and pundits will say, but not yet.

And whilst it is not made, then other ways of solving the problem created by the referendum result may present themselves: another referendum, perhaps, so that UK voters can give the “correct” result, or a general election where EU membership is a manifesto issue, or some other thing.

This will not please Leave campaigners, and rightly so. It means the result of the referendum will be effectively ignored.  But that was always possible, as it was set up deliberately as a non-binding referendum (unlike the Alternative Vote referendum, which was designed to have binding effect if there was a “yes” vote, which there wasn’t).

“Of course, they will respect the popular vote. They would dare not ignore it!” is the cry.

People saying this have a good point, but they should also remember a ship which never did get called Boaty McBoatface.

*

In my view, if the Article 50 notification was not sent yesterday – the very day after the Leave result – there is a strong chance it will never be sent.

If this view is wrong, it remains the case that those with a sincere interest in the issue of UK’s membership – whether Remainers or Leavers – should keep their eyes on the Article 50 notification, regardless of noise and bluster and excuses.

As long as the notification is not sent, the UK remains part of the EU.

And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.

*

ESTRAGON: Well, shall we Leave?

VLADIMIR: Yes, let’s Leave.

(They do not send the Article 50 Notification.)

**

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Five legal points about the Leave victory

24th June 2016

1. The EU referendum result, by itself, has no legal impact.  It was an advisory not a mandatory referendum. (See my FT post here.)

2. All UK law – including that drawn from the EU  – remains in place today just as it was yesterday. Nothing in yesterday’s result affects the applicability or enforceability of any UK or EU law.

3. The legally significant thing is not the referendum result but any Article 50 notification.  There is no indication any UK politician is in any rush to press that “red button”.  Once pressed, that will give a two year period before the UK leaves the EU (unless EU Member States unanimously agree otherwise).  Any fundamental legal change as a result of the Leave vote will not (and cannot) be until 2018 at the earliest.

4. It is perfectly possible the Article 50 red button is never pressed – for example if there is a “new deal” and a second referendum.  There is, after all, a tradition of EU-related referendums being repeated in Member States until there is the “correct” answer.

5. On available information, there is no plausible legal challenge to the referendum result.

*

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How to ban referendums: the Referendum Banning Act 2016

21st June 2016

Here is my modest proposal for a short Act of Parliament for banning referendums.  You will see how it would make such a ban irreversible.

 

Referendum Banning Act 2016

1. The holding of a referendum is hereby prohibited.

2. This Act can only be repealed by a referendum.

That should do the trick, shouldn’t it?

*

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The problems with referendums in general, and the Brexit one in particular

17th June 2016

 

There are two problems with the current EU referendum.

 

Why this referendum was a bad idea

The first problem comes from there never having been a need – in an objective sense – for this EU referendum.

By “objective” I mean that there was no external reason – such as a new EU treaty or similar proposal – for a referendum to take place in June 2016.

As such, it can be described an objectively pointless referendum.

(The practical reason for this objective was, of course, political: it was a quick fix by the prime minister to a political problem caused by his own party and the (then) rise of UKIP.  And in launching this needless and divisive referendum campaign as a quick political fix, David Cameron showed all the political judgement of Cersei Lannister.)

This referendum is also not legally binding.  It is advisory.  There is no legal obligation on the government to do anything in response.  The all-important notification under Article 50 is in the gift of the government, and the government can make that notification at a time of its choosing, or never at all.

It is therefore an objectively pointless referendum with no direct legal consequences.  Twice as pointless, in a way, if a thing can logically be as twice as pointless.

And so, as the referendum was about no proposal in particular, the campaigns became about everything and nothing.   There was never any real focus.   And without focus, the campaigns became strident and unpleasant.

This leads us, like Prufrock, to an overwhelming question.

This is a referendum without any objective reason or focus, such as a new EU treaty or other proposal.

It is not legally binding.

So: why?

 

Why referendums are generally a bad idea

The second problem is about referendums in general.

When you have a parliamentary system, you either take the parliamentary system seriously or you don’t.

And having referendums means you are not taking a parliamentary system seriously.

And if the supposed reason for the referendum is to protect parliamentary democracy, this does not even make any sense.  You cannot sensibly protect parliamentary democracy by the extra-parliamentary means of a referendum.  It is an absurdity, if you think about it.

Referendums are rare in UK political history. Before 1975, there had been none at all.

Issues as fundamental as making war and peace, decolonisation, the welfare state, the abolition of capital punishment, the legalization of homosexuality – huge issues, time after time – were all dealt with without a referendum.

Even fundamental constitutional issues before 1975 were dealt with without referendums – such as royal abdications, measures limiting the powers of the Crown and the Lords, and all the extensions of the franchise.

There is, of course, one good counter-argument: see Scotland and devolution, and the Good Friday Agreement.  The referendums on these certainly dealt with fundamental constitutional issues – but, unlike this EU referendum – there were concrete, discrete proposals put before the voters to vote on.

 

Not again?

Let’s not have a referendum again, on anything, unless (a) it is a fundamental constitutional issue and (b) there is an actual proposal for fundamental change for people to consider and to vote on.

Ongoing UK membership after 40-odd years of one international organization when there is not any proposed significant change in the offing does not meet these criteria. (A vote on the Maastricht or Lisbon treaties may have done, but certainly not this June 2016 one.)

A referendum should never be a casual fix to a party political problem.

So here’s a radical suggestion: let’s return to being a parliamentary democracy.

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The UKIP MEP using Brussels privilege to frustrate a UK court process and an Act of Parliament

23rd May 2016

In a High Court judgment handed down last week we have the splendid irony of a UKIP MEP using the privileges of the European Parliament so as to stay a case in the English courts where the court is applying an Act of Parliament.

The case is one about libel damages and the statutory provision is that which governs “offers to amend” under the Defamation Act 1996.

One would think that this is exactly the sort of Brussels interference with national legal sovereignty – the court process and the effect of primary legislation – that UKIP would be against.

But no.

 

POSTSCRIPT

This was tweeted by the MEP as she actively sought the European Parliament privilege which meant UK law would not apply to her.  Compare the date of the tweet with the dates in the postscript of the judgment.

 

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Lauri Love and the potential civil law “backdoor” for obtaining encryption keys

10th May 2016

This is an “explainer” post about a potentially significant court decision being handed down today on whether the UK State can use civil law as a legal “backdoor” for obtaining encryption keys.

The case:  Lauri Love v National Crime Agency

The venue: Westminster Magistrates’ Court, from 1000 hrs today

The claim: An application under section 1 of the Police (Property) Act 1897 for recovery of computer equipment seized by the National Crime Agency – note this is an example of a civil matter being dealt with by a Magistrates’ Court.

The procedural stage: The application is still pre-trial, and the overall application is set down for a trial hearing on 28 July 2016.

Today’s decision: Today the presiding judge District Judge Tempia will make a decision on whether Lauri Love be “directed” at this stage to provide an encryption key as part of the civil claim, and before the trial.

This is because the National Crime Agency, the “defendant” in this claim, is insisting that the key be handed over before the application be tried and a decision made to return the equipment.

Why this matters: The statutory regime for requests for encryption keys (and encrypted data) is under Part III of the Regulation of Investigatory Powers Act 2000 (RIPA).

The state agency – in this case the National Crime Agency – would serve a “section 49” notice, and if a valid section 49 notice is not complied with, then the recipient of the notice can face prosecution under section 53.

The recipient, however, has the protections of the safeguards of section 55 and the protections of the detailed (fifty-odd page) Code of Practice.

By requesting a direction as part of the civil application, the National Crime Agency is seeking to sidestep the RIPA scheme and effectively circumvent the section 55 safeguards and the protections of the Code of Practice.

The extradition context: Lauri Love is facing extradition to the United States.  The United States indictments are at Lauri Love’s website.  The extradition application is also being heard by Westminster Magistrates’ Court, but those are separate and distinct legal proceedings.

This civil claim is self-contained and is not directly relevant to the extradition.

The earlier section 49 notice: Lauri Love has also been already served with a section 49 notice, in February 2014, and did not provide the requested information.   The National Crime Agency did not continue with the RIPA process.

Comment:

Many of the coercive and intrusive powers given to the state under RIPA are balanced by safeguards and protections against abuse of those powers.

The powers and the checks on them should be seen as a package.

By seeking to use directions in a civil claim to achieve the same aim, where the safeguards and protections against abuse will not apply (and which would be decided on a lower standard of proof – section 53 has the criminal standard, whilst a direction in a civil case would (of course) have the civil standard) then the National Crime Agency are departing from what RIPA intended.

If the National Crime Agency want the encryption key then they should follow the RIPA statutory scheme and not try to get round it.

Instead, the National Crime Agency are asking the courts to construct an civil law “backdoor” for obtaining encryption keys (and encrypted data) outside the statutory scheme of RIPA.

Further reading:

The Intercept

The Register

BBC

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Law and policy round-up: Hillsborough verdict, judicial policy, sovereignty of parliament, etc

4th May 2016

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Hillsborough verdicts

David Conn has set out at the Guardian a powerful critique of the legal process in the new Hillsborough inquest: The other villain of Hillsborough saga: legal system that left families in torment.  David Conn is an excellent journalist and it is fascinating to see what he made of the legal process as an outsider looking in.

The UK human rights blog has provided a useful round-up of links on the legal aspects of the verdicts.

My own contribution, on how the Human Rights Act and ECHR made the scope of the new Hillsborough inquest possible, is at the Financial Times.

Public law and private law

Sir Henry Brooke, the retired senior judge who has transformed into an outstanding legal blogger, has posted his talk on private law for public lawyers.

The judiciary and public policy

The Lord Chief Justice was questioned yesterday by MPs. The questions covered a range of justice policy topics – not just judicial pensions, though that was picked up by the press – and the answers are worth reading.

Sovereignty of parliament

Over at the Financial Times I have posted the first of what will be a series of pieces exploring laws and legislation. The first is on the fragility of “parliamentary sovereignty”.  Further posts in the series will be on bad legislation and the government’s apparent misuse of statutory instruments.

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