Brexit round-up – James Chapman, Repeal Bill and Francovich, Trade, Customs, ECJ and domestic courts

11h August 2017

As I am taking a break from active tweeting (and am instead on Twitter just to promote my posts and so on), this is a round-up of interesting links and tweets on Brexit and similar stuff.

 

The Brexit debate

James Chapman continues to throw grenades:

 

Brexit Repeal Bill

The Times does a good report on the (obvious?) point that once EU law eases to have effect, remedies under EU law such as “Francovich” damages (for UK’s failure to properly implement EU law) are no longer are available.

 

Brexit issues – trade

Good piece at the Financial Times by Gemma Tetlow on the practicalities of Brexit without a customs deal:

 

Brexit issues – European Court of Justice (and domestic judiciary)

Stonking editorial at Financial Times (nothing to do with me!) on Brexit and domestic judicial independence.

 

And finally…

 

**

For email alerts for my posts at Jack of Kent – including for Brexit updates – please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated and will not be published if they are not polite or interesting/informative (and preferably both).  

Brexit round-up – James Chapman, Gina Miller, UK position, City of London, Scotland

10th August 2017

As I am taking a break from active tweeting (and am instead on Twitter just to promote my posts and so on), this is a round-up of interesting links and tweets on Brexit and similar stuff.

 

The debate on Brexit – James Chapman

The emergence of James Chapman as a Remainer at this latest stage of the Brexit debate is a bit like Euron Greyjoy coming along in the recent episodes of Game of Thrones.

Chapman’s fearless glee in taking on his opponents has certainly shaken things up a bit, whether or not you agree with him (I don’t fwiw).  His Twitter feed is here.

Why is his entry into the debate significant? Well:

This is a Reuters news report on some of Chapman’s contributions to the Brexit debate: “Stop EU exit ‘catastrophe’, says UK Brexit minister’s ex-chief of staff“.

 

Parliament and Article 50 – Gina Miller

Gina Miller has done more for the independence and supremacy of the UK parliament than any parliamentarian one can think of.  It was her (and others’) legal case that led the Supreme Court holding that it was for parliament and not the executive to make the Article 50 decision.

And now, this horrific story at The Guardian: “Gina Miller afraid to leave her home after threats of acid attacks

 

Brexit negotiations – UK position

Politico Europe has this: “Britain launches Brexit charm offensive:
London has become increasingly sensitive to suggestions the UK is underprepared for Brexit”

Great piece at Sky News on the upcoming politics of Brexit and the position papers, by Beth Rigby: “Real battles for PM around the corner

Financial Times: “Theresa May’s cabinet split three ways over Brexit transition

 

Brexit issues – City of London

Financial Times:A stark warning on the cost of Brexit indecision: The financial sector will soon have to act on a worst-case scenario

 

Brexit issues – Scotland

An interesting development – more of that charm offensive, perhaps:

And finally…

**

For email alerts for my posts at Jack of Kent – including for Brexit updates – please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated and will not be published if they are not polite or interesting/informative (and preferably both).  

Brexit round-up – referendum promises, EU position, UK position, Ireland, single market, Brexit bill, ECJ

9th August 2017

As I am taking a break from active tweeting (and am instead just promoting my posts and so on), this is a round-up of interesting links on Brexit and similar stuff.

 

Brexit referendum – campaign

Interesting, from criminal solicitor-advocate Nicholas Diable:

 

Brexit negotiations – EU position

Martin Selmayr is, of course, chief of staff to the President of the European Commission.  He is currently making a point of tweeting a lot about Brexit and consumer standards and data protection:

The data protection point is also addressed by Chris Grey in this informative post.:

 

Brexit negotiations – UK position

The UK government is to release Brexit position papers in the next few weeks, according to The Guardian:

Simon Fraser, the former senior official at the Foreign Office has described the UK of being “a bit absent” in talks that “have not begun well” – news item.

Nick Macpherson, the former senior Treasury official is similarly unimpressed but hopes something better will come along:

An excellent thread by @jonnymorris1973 on UK’s lack of preparation for Brexit, and why this should alarm Brexiters more than anyone – click on this tweet to read full thread:

Wolfgang Munchau at the Financial Times wisely explains how Article 49 (on joining the EU) may become more important that Article 50.

 

Exit issues – Ireland

An outstanding piece by Finatn O’Toole on how the Republic of Ireland is deftly taking advantage of UK’s ineptness in the Brexit negotiations:

 

Exit issues – Brexit bill and financial issues

Ian Dunt at The Guardian on how the UK should be realistic on the Brexit bill:

A perhaps significant leader at The Sun on the UK settling its bill in return for free trade deal.

Article by Labour MP Chuka Umunna at the New Statesman: “It’s official – there’s a £200m hole in the Brexit bus NHS promise”

Editorial at the Evening Standard on the financial side not being the real problem:

 

Exit issues – single market

This is a fascinating piece by Matthew Holehouse on whether Article 127 of EEA is still in play, making it easier for the UK to stay in the single market:

 

Exit issues – jurisdiction of European Court of Justice and related legal issues

A well-reasoned leader at The Times on the EFTA court as a work-around.

The BBC reports that “UK judges need clarity after Brexit” according to the president of the Supreme Court Lord Neuberger.

that report prompted this great thread by George Peretz QC on UK courts and ECJ jurisprudence, post-Brexit – the first tweet in thread is here, click on it for the rest:

**

For email alerts for my posts at Jack of Kent – including for Brexit updates – please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated and will not be published if they are not interesting or informative (preferably both).  

 

What the High Court did not do today about Tony Blair and war crimes

31st July 2017

You will read – on social media and elsewhere – that today the High Court decided to not prosecute Tony Blair (and others) for war crimes.

The High Court did not make that decision.

First, the High Court was not being asked to make a decision on whether Blair should be prosecuted.  That would be a decision for a criminal court – to permit a private prosecution.

The decision today was about whether a decision not to permit such a prosecution was lawfully open to the criminal court.  The High Court held that it was not open to a criminal court to give that permission.  So: one step away from a decision to allow any prosecution.

Second, the High Court was bound by a 2006 decision of the House of Lords (the predecessor to the current Supreme Court).  So: it was in 2006 that the decision was made that the waging of aggressive war was not a domestic crime, and not today.  All the High Court did today was follow a decision more than ten years’ old.

Today the High Court made neither a decision to not prosecute for war crimes nor new law.  The High Court instead said somebody else could not make the decision, and did so by applying old law.

Read the judgment for yourself.

**

 

For email alerts for my posts at Jack of Kent please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated.  

A mandate can be either democratic or irreversible, but it cannot be both – an argument

31st July 2017

Over at the FT the other day I did a post about mandates and sovereignty.  Many people seemed to find the points in it interesting, and so (outside of the paywall) I will set out here in more detail the argument I made there about mandates.

The proposition I advance is in essence:

a mandate can be either democratic or irreversible, but it cannot be both.

The argument in support of this proposition goes as follows:

1.  To say a referendum result provides a mandate for an issue once and for all is to say it is irreversible.

2.  The position in (1) contrasts with mandates from general elections.  Usually in UK politics, the result of a general election does not mandate any MP to vote for anything.  The only real constitutional effect of a mandate from a general elections is that, by convention, any mandated measure cannot be blocked or delayed by the House of Lords (the “Salisbury doctrine”).

(Something is said to be mandated from a general election if it is set out in the manifesto of a party which obtains an overall majority.)

3. Following from (2): (a) opposition MPs can vote against measures in the winning party’s manifesto, (b) no government is obliged to follow its own manifesto (and often does not), and (c) in certain circumstances, a government can abandon and reverse policies where there is a mandate without waiting for a general election.

(A classic illustration of (c) is the poll tax, for which a Conservative government had a detailed mandate from the 1987 general election. Few sensible people, if any, would have argued that the Tories were bound to keep this tax in 1990 because of “democracy” when it came to be seen widely as wrong in principle and unworkable in practice.)

4.  Following from (2) and (3), mandates in UK politics are usually reversible, if they are followed at all.

5.  In any case, anything “mandated” by a general election result will always (and logically) be reversible at another election.

(In the case of (3)(c), there would not even be the wait for a general election.  For example, nobody in 1990 was saying about the poll tax: “let’s wait for the next general election for a mandate for something else”.  The policy was rightly ditched mid-parliament.)

6.  Following from (2), (3), (4) and (5) if a policy is (a) wrong in principle and (b) unworkable in practice then it is difficult to see how any perceived mandate from a general election can override that.

7.  Mandates also can come from referendums. The questions to now ask are: What should be the position with mandates from referendums? Should such mandates have an irreversible quality which a mandate from a general election does not?  And if it has an irreversible quality, would such a mandate still be “democratic”?

8.  In respect of whether such a mandate would be democratic, one can apply the famous tests of Tony Benn.  He suggested five tests for anyone with power: What power have you got? Where did you get it from? In whose interests do you use it? To whom are you accountable? How do we get rid of you?

9.  It is the last one that is problematic about referendum results, and prompts the following questions: How do you reverse a referendum result? Can an electorate at one point in time bind all future electorates in a way that no parliament could ever do?  Why should a majority at point A have more inherent power than an electorate at point B? These questions all point to one plausible answer: to say a referendum result is mandatory for all time and not reversible in any circumstances is to rob future electorates of their power.

(As a side note, no Brexiteer – rightly – seems to believe that the UK was bound for all time by the 1975 referendum result.)

10.  If the position at (9) is valid, then for a referendum mandate to be democratic, it must be capable of being revisited (either to affirm it or reverse it), else it cannot be democratic.  One electorate would have dictated a measure to all future electorates.

11.  If the position at (10) is valid, this is not to suggest a second referendum (see my post here – my view is that any such decision in a parliamentary democracy should be made, well, by parliament).  Instead, if the position at (10) is valid then it means that referendum results (or anything else) should not be given the status of an absolute mandate in a democracy, for to do so would thereafter render that polity as undemocratic.  This is because something will have been done that cannot be undone, whether by voters directly or through parliament.

12.  And so on the basis of the positions above, a mandate – whether by means of a general election or a referendum – can be either democratic or irreversible, but it cannot be both.

**

 

For email alerts for my posts at Jack of Kent please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated.  

The act of vandalism to take place at Inner Temple library: Part One

 

17th July 2017

This is first of three posts about an act of vandalism.  (The second post will be posted shortly.)

The act of vandalism has not happened yet, though it is expected to happen. Nothing, it seems, can stop it.

The target of the vandalism is a law library: the library of the Inner Temple, one of the four Inns of Court.

You may not care about law libraries.  But whatever your view, please take a moment to read about this act of impending vandalism.  It has, as I set out below, wider significance.

*

A library is not just an accumulation of books and book-like things.  Books and bookshelves are crucial, of course.  But a library is more than a depository.

The library of the Inner Temple happens to be a purpose-built law library.

This means that regard was made not only to bookshelves and tables.

The lighting, the acoustics, the use of space are all perfect.

Just as a  great theatre is not just a stage in a room, a great library is not just some books in a bookcase.

The library of the Inner Temple is as good a law library as it is possible for a law library to be.

Here are some pictures.

ITL1

 

 

ITL2

 

 

ITL3

 

It is an extraordinary and wonderful place for any lawyer, from a student to a QC, to work.

There is no better place in England to research a legal point.

In my next post I will set out what is going to happen to it, and why it is wrong.

**

I have an interest in this: I practice as a lawyer in Inner Temple (I work as a lawyer as well as a writer) though this post represents only my own personal view and not that of the firm where I am a consultant.

Parts of this post were previously at my post here on law libraries.

The Cummings exchange – which news sites credited it, and which did not

4th July 2017

Just as an exercise in how these things work, it is interesting to see how my Twitter exchange with Domininc Cummings was picked up by news sites.

Both the BBC and the Evening Standard sites provided credit for the Twitter exchange.

The Huffington Post embedded the reply tweets but without any further credit.

Disappointingly, both the Independent and the Mirror reported the exchange without providing any credit at all.

That is a poor show.

There is no problem reporting tweets, of course – they are public domain – but to take an exchange which was instigated and followed-through by a commentator without crediting them cannot be right.

For what it is worth, I always go out of my way to credit other media sites (and tweeters and commenters generally) when I can.  News and comment is largely collaborative exercise after all.

UPDATE

Mirror has amended its copy.  3000+ shares later of the piece later, but still appreciated.

FURTHER UPDATE

The Independent has finally updated its story to include credit – 13k+ shares later, but it is the thought…

“In some possible branches of the future leaving will be an error” – an exchange about Brexit with Dominic Cummings

4th July 2017

Yesterday evening, I had a tweet exchange with Dominic Cummings, the architect of the (official) Leave campaign.

His candour and openness was striking.

Many regard him as a controversial and negative figure.  But there is none of the platitudes and evasions of the politicians of both sides on Brexit.  It is worth, therefore, reading what he has to say.

The tweet exchange was prompted by his tweets from June, linking to a blogpost.  (I happened upon these while researching something.)

That was last month.  I wondered if he still held this view.

He must get a lot of queries and I did not assume he would respond.  But it was a sincere question.

(My own view is that (a) Brexit is complex, (b) the UK government is not equal to the task, and (c) the UK government is somehow making it worse for itself.)

He did respond.

He then added.

Brexit was necessary, though obviously not sufficient.

This is an interesting view, and I RTd the conversation above as it seemed worthy of wider discussion.

I then asked him about the referendum vote itself.

(Most Brexiteers will defend the Leave vote absolutely; many Remainers will be as equally disdainful.)

His reply was swift, and commendably frank.

“In some possible branches of the future leaving will be an error.”

In other words: Brexit was not bound to be a success – Brexit could be a mistake.

(Note my question had been about the referendum result, but the second sentence of the replt went to Leave more generally.)

He added:

In the meantime, I had RTd the “Lots!” tweet- again as I thought it would be of wider interest.

He was unimpressed with some of the responses.

I said I thought this response was good.

He responded.

He also made wider this observation about the responses.

*

Postscript.

I disagree with Dominic Cummings on many things to do with Brexit.

A couple of polite questions had elicited some frank, informative and interesting replies. And this dialogue in turn led to wider discussion.

One may dismiss what he has to say (and what he did at the Leave campaign) but it is important to know what his position actually is, and not what it is alleged to be.

But one respondent (ironically, an academic), however, saw this exercise as me being “part of the problem”.

This view is misconceived.

One problem with Brexit has been the partisanship and the heat of the two sides.

The more open and frank we can be the better.

**

 

For email alerts for my posts at Jack of Kent please submit your email address in the “Subscribe” box on this page.

***

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

****

Comments are pre-moderated.  

Three things about Brexit

2nd July 2017

Since the referendum vote last summer for the United Kingdom to leave the European Union, three things have become apparent.

First, Brexit will be complex, not simple.

Second, the UK government is not (or is not currently) equal to the task of Brexit.

Third, regardless of the difficulties, the UK government is in any case making it worse for itself, to the extent it seems almost that it is self-sabotaging the whole process.

I do not claim any originality for these three insights; I just wanted to jot them down here, in one place.

 

Brexit: Whatever happened to the “row of the summer”?

19th June 2017

On Friday this blog asked whether there had been a UK government u-turn on “sequencing” in the Brexit negotiations, which started today.

Sequencing is (or at least was) important for the UK.

Article 50 envisages two agreements: an exit (or divorce) agreement, dealing with issues related to the departure, and an agreement on future relations, which for the UK essentially means trade.

The UK want(ed) both to be negotiated together, in parallel.

The EU wanted a number of preliminary issues discussed before the parties moved on to discussing future trade relations.

In crude terms, the UK has (had) more leverage over the trade deal the more it was tied to the exit deal.  In the latter, the UK has things the EU wants regarding cash and citizenship.  Once those issues are settled, the weaker the UK’s negotiating position on trade.

So important was sequencing to the UK that two months ago the relevant minister threatened that it would be the “row of the summer“.

On Friday (as set out at Friday’s post) there were reports that this position had changed – that, in effect, there had been a U-turn.

What made these reports plausible was that they were not splashed as exclusives but seem to have been mentioned by diplomatic sources almost without realising the significance.

When asked, the Department for Exiting the European Union provided a non-denial denial, just plausible enough to kill the story with the mainstream media.

It looked like a denial, so it must have been one.

But it was not, if you read it carefully.  And when asked directly, the department side-stepped the question. (All this is set out at Friday’s post.)

*

And so what happened today, on the first formal day of the negotiations?

Michel Barnier , the chief EU negotiator, stated:

In a first step, we will deal with the most pressing issues. We must lift the uncertainty caused by Brexit. We want to make sure that the withdrawal of the UK happens in an orderly manner.

Then, in a second step, we will scope our future relationship.

And this is affirmed by the agreed agenda published on the UK government site.

*

So the UK government has capitulated on day one, on an issue which was to be the “row of the summer”.  it did not even get to midsummer’s day.

But what is the significance?

First, it has shown the futility of the UK boasting and blustering with red lines. This may not be the first one to be crossed.

Second, it shows the stronger negotiating position of the EU, and the benefits of long and detailed preparation.

Third, it may show that the UK (unlike in May) is less able to negotiate the UK’s future trade relationship with the EU, as the the UK government since the election does not have an agreed position.

And fourth, never rely on a government press office, especially DExEU.

But overall: this capitulation should be welcomed.  It was a silly and weak position.  It is better that the UK drop it now, and use the valuable time to get a sensible discussion rather than have a row over the summer.

It was, as some have said on Twitter, the row-back and not the row of the summer.

**

If you want to support independent and free-access commentary at Jack of Kent, such as posts like this one, please contribute to the site’s Patreon. 

***

For email alerts for my posts at Jack of Kent please submit your email address in the “Subscribe” box on this page.

****

header banner image

Regular blogging at Jack of Kent is supported by the kind sponsorship of Hammicks Legal Information Services. 

*****

Comments are pre-moderated.