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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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.

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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.

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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).

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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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Press regulation: what you need to know about “Section 40”

29th April 2016

The “section 40” is a provision in the Crime and Courts Act 2013.  It will be put into effect when John Whittingdale, the Secretary of State, decides.

Some have contended that the delay in implementing the provision is for no good reason. A few go further and suggest the delay can be attributed to the alleged hold the London press have over Whittingdale by reason of not publishing information about his private life.

As I set out over at the Financial Times website today, I believe the better explanation is that the legislation is a dreadful dogs dinner, and that no responsible Secretary of State would implement it – at lest in present circumstances.

Section 40 is controversial. Hacked Off and its allies demand that it be implemented without delay – see here and here.  Alternatively, the media campaigners at 89UP warn that it will have a profound chilling effect.

Section 40 has now become a totem in the debate about press freedom.

In my view, section 40’s problems come down to what it actually says.

Section 40(1) tells you what it covers – in effect it means claims for media torts (mainly libel or privacy) against “relevant publishers” (mainly news organisations).

Sections 40(2) and (3) then deal with who pays for the costs of such cases.  Both seek to alter the usual position that “costs follow the event” – ie the loser in a claim pays the winner’s costs.

Section 40(2) tells you that the news publishers should not generally have to pay legal costs in respect of those claims as long as they are members of an “approved regulator” with an arbitration scheme.  This provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

This provision is a “carrot” – it is to provide an incentive for publishers to join an “approved regulator”.

The real problem is with section 40(3). This is the “stick”.

Section 40(3) tells you that the news publishers should generally have to pay legal costs – including those of the claimant – in respect of those media tort claims if they are not members of an “approved regulator” with an arbitration scheme.  In effect, as long a claim is arguable, the publisher will have to pay both side’s costs, even if the publisher wins at court.

As with section 40(2), this provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

And again, this provision is to provide an incentive for publishers to join an “approved regulator”.

One key issue with this is that (a) there is no approved regulator yet and (b) the one regulator which is likely to get approval – IMPRESS – has hardly any members.  Most publishers are members or IPSO – which does not want recognition – or (like the Financial Times, Guardian, and Private Eye) do not want to be members of any external scheme at all.

This means the vast majority of the UK news media will be under section 40(3) costs risks once IMPRESS becomes approved.

For me the worry is not that section 40(3) will have a certain impact but that it will be uncertain. It is a dire piece of drafting.

As I set out over at the Financial Times:

To take four examples:

– What is “a relevant publisher”? (The schedule to the Act on exceptions to this definition is not clear.)

– When would it “have been reasonable in the circumstances for the defendant to have been a member [of a scheme] at that time”?

– What does it mean that “the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator”?

– And, most importantly, when will it be “just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs”?

On the last point alone, one can imagine judges routinely disregarding the general rule and awarding costs as they do now, as that would be “just and equitable in all the circumstances”.

If section 40(3) takes effect, there would be immediate and expensive uncertainty. So hedged is it with qualifications and exceptions that litigation is inevitable. The Leveson report called for a system that was “fair, quick and inexpensive”. What this provides is anything but.

In other words – section 40(3) will create far more problems that it solves, with the real prospect of expensive and lengthy litigation as each loophole and technicality is explored.

If section 40 is be implemented at all – and when it was enacted, the failure of an approved regulator to have almost no members was not envisaged – then it should only be once an approved regulator with an arbitration scheme is up and running.

As I conclude at the Financial Times:

Looking at the detail, rather than just the totemic significance, reveals it as a worrying and unstable provision. The secretary of state is quite right to delay bringing section 40 into effect, at least until there is a recognised regulatory scheme with a functioning arbitration service. To bring it in earlier, would be so irresponsible that no responsible politician should do it.

One does not need to look for lurid explanations for the hold the media supposedly have over a cabinet minister to explain why section 40 should not be implemented lightly. It is not a dominatrix in a relationship but the devil in the detail which provides the explanation for why it should be delayed, if not repealed altogether. It is simply a bad provision.

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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Law and policy round-up: media law, Brevik and human rights, legal aid and access to justice

25th April 2016

The media, defamation and lawyers

Excellent post at Law Society Gazette on the state of current media law litigation, especially the impact of the Defamation Act 2013.

Breivik reminds us human rights never stand alone

Nick Cohen takes on the “what about Brevik” counterpoint to the concept of absolute human rights.

Legal aid cuts have led to surge in DIY defence, says charity

Good article (though one with a dull title) on the recent Transform Justice report. Includes this eye-catching example:

https://twitter.com/taxbod/status/724115206801108992

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Dear Mr Gove, bad Ministry of Justice policy making has not gone away

4th April 2016

Another policy failure of the Ministry of Justice becomes apparent: over at the Law Society Gazette, John Hyde has detailed how the MoJ has collected only a small proportion of the criminal courts charge.

The charge has now been terminated; but the underlying problem remains: the MoJ is simply not any good at policy making and policy implementation.

The MoJ adopts a policy, usually without assessing evidence or even thinking things through, and it then “presses on” with the policy regardless of onlookers pointing out that, well, the policy will not work.

The policy is then eventually reversed.

This is not just a one-off; the cycle of policy adoption-failure-reversal has been a feature of the MoJ for as long as one can remember.

Michael Gove has been Justice Secretary and Lord Chancellor for less than a year. He has started well as the ministerial head of the department, and he has been savvy enough to work out ways of ending most of his predecessors more idiotic policies.

To go by the political news, however, it seems like Gove is now becoming preoccupied with the upcoming “Brexit” referendum vote.

The worry is that Gove somehow thinks the problem of crap MoJ policy making has been solved. and that he is thereby free to concentrate on other political matters.

The problem has not been solved; as not being any good at policy making and implementation (whilst arrogantly ignoring anyone pointing this out) is the natural state of the MoJ.

Without a careful eye, bad policy making will return.

And, if so, Gove will no longer have the luxury of focusing on Breixt or even the Tory leadership succession.

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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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