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 This Act can only be repealed by a referendum.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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The Boaty McBoatface Party

20th March 2016

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“The British public are trying (and succeeding) to have a £200 million boat named Boaty McBoatface.” (A viral tweet)

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This is not a party-political blog – there is good and bad, and liberal and illiberal, in all main UK parties.

But domestic politics, especially in Westminster, seem to be in a state of chaos.  The Conservative Government, in the days after Duncan Smith resigned, is imploding; Labour provides no effective Opposition; and the post-Coalition Liberal Democrats are a discredited irrelevance.

Shambles everywhere.

One may well sneer at American Trumpery – but we can’t be that far off having a similar ‘anti-politics’ mood here.

It would then just take a charismatic genius to start a populist, say, Boaty McBoatface Party and our political class would be buggered.

The usual barriers to populist extremism in UK politics – the parliamentary system and first-past-the-post voting – are not absolute protections.  It is not inevitable that populists will somehow always be kept away from power.

Ultimately, democratic politics is about legitimacy – particular politicians exercise power when it is legitimate for them do so, and those politicians in turn obtain (and lose) power within a wider system which has its own legitimacy.

But legitimacy – like any other form of belief – can disappear when minds change.

Unless the main parties get their respective acts together, then there is no inherent reason they will be the parties which the greater number of voters will vote for.

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Five things about David Cameron and sovereignty

9th March 2016

Here are five things to remember when you hear the Prime Minister praise the “sovereignty of parliament”.

First, ministers and officials are encouraged to use statutory instruments as much as possible, which do not get proper parliamentary scrutiny.

Second, the government has sought to cut the “Short money” which funds the scrutiny work of opposition parties in parliament.

Third, the government is seeking to push through the Investigatory Powers Bill through parliament at speed, just as it did with the Data Retention and Investigatory Powers Act.

Fourth, when the House of Lords (sensibly) rejected cuts to certain benefits (which were later dropped), Cameron sought to limit the power of the Lords.

Fifth, when the Speaker of the House of Commons was seen as too independent, the (then Coalition) government under Cameron attempted (and failed) to get the Speaker sacked.

Take together the increasing use of secondary legislation, the attempts to cut Short money, the rushing of primary legislation, the attempt to limit the Lords, and the plans to eject the Speaker – and the evidence does not show that Cameron and his government have any sincere respect for the sovereignty of parliament.

In fact, the evidence contradicts the notion that Cameron and his government believe in the rights and prerogatives of the legislature.

And this is without the ongoing tendency for major announcements to be leaked to the press, or to be revealed on chat shows, rather than on the floor of the Commons.

In essence, it is not the sovereignty of parliament which is being claimed by Cameron and his ministers, but the sovereignty of the government once it has a Commons majority; what a former Conservative Lord Chancellor called an “elective dictatorship“.

The rhetoric may be about the sovereighty of parliament, but the practice of the current government (as with previous governments) is to undermine parliament in as many ways as possible.

It is not Brussels which is the greatest enemy of the Westminster parliament but Whitehall.

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