Brexit and the new British Constitution

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15th March 2017

The set out of a textbook on the ‘British Constitution’ used to be straightforward.

(And yes, the British do have a constitution, it just is not codified.  There is a descriptive answer to the question: how is Britain constituted?)

After the various chapters on the executive, legislature, judiciary, local government, nationalised industries, the police, and so on, there would perhaps be a short chapter on Scotland and Northern Ireland.

Wales would have an index entry which said ‘for Wales, see Scotland and Northern Ireland‘.

In other words: the three other component states of the United Kingdom were not taken seriously in constitutional terms. They were, at least for many in England, an afterthought.

This did not stop English politicians invoking ‘British’ as it suited them.  English conservative politicians were fond in particular of calling for a ‘British Bill of Rights’ without a second thought as to the word ‘British’ (or indeed to the word ‘rights’).

This was always misconceived.  Even in the times of old textbooks, the constitution of the United Kingdom was not just that of a greater England, notwithstanding the unifying constitutional doctrines of the powers of the Crown and the sovereignty of parliament.  Scotland, for example, has its own legal system and jurisidiction.  As does Northern Ireland.

(There is no such thing as ‘British law’.  Some laws cover all the jurisdictions of the United Kingdom, but ultimately there are the laws of England and Wales, of Scotland, and of Northern Ireland.  The United Kingdom has always been a form of federation.)

The effect of modern devolution has made the old textbook approach redundant compeletely.

Chapters on Scotland, on Northern Ireland, and even on Wales, need to be towards the start of any constitutional textbook, and not towards the end.

The fact there was never a ‘British Bill of Rights’ (despite ten years of Tory trying) was in large part because it was impossible to repeal the Human Rights Act and enact a replacement in the face of opposition of the devolved powers.  (And because in Northern Ireland, the enforceabilty of the ECHR was written into the Good Friday Agreement.)

A fogey may contend that the sovereignty of parliament still prevails, and that the Westminster parliament may legislate as it wishes.  But that is constitutional theory and not practice.  Such an approach now would not only be arrogant but (as with the aborted ‘British Bill of Rights’) also futile.

Brexit takes place in the constitutional context of modern devolution.  This means that there will be checks and balances in effect even if not in neat constitutional principle.  I have set out over at the Financial Times how the Scottish First Minister has crafted a check and balance out of constitutional thin air: and it has had areal effect in causing a postponement of the Article 50 announcement which was supposed to have been made yesterday.

A constitution regulates what any government can get away with.

In this way, whether the cause of the disappointment is the legislature, the judiciary, or the devolved administrations, the noise of a ‘disappointed’ minister is the sound of a working constitution.

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On Brexit, the SNP and Sinn Féin have been waiting and preparing the whole time

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14th March 2017

Theresa May and her government have had a good Phoney War over Brexit.

They have won the parliamentary votes, even if they lost a court case.

They have played to the gallery – the Brexit-supporting press and the Brexit-supporting backbenchers – getting the easy cheers.

They have had no meaningful opposition in parliament from Jeremy Corbyn’s Labour Party, or from anybody else.  The Lords have surrendered.

So far, Brexit must seem like a doddle.

But yesterday, the Scottish First Minister made her move.

Now we wait for Sinn Féin’s move.

The SNP and Sinn Féin have been watching and waiting and preparing the whole time.

The SNP and Sinn Féin have thought hard about how to exploit this political opportunity.  Only a fool would underestimate either entity.

So soon the proper politics of Brexit will begin, with the UK government facing skilled and determined politicians taking full advantage of the power and leverage presented by the government’s policy of a ‘clean’ (ie, hard) Brexit.

And this is all in addition to the politics of UK’s negotiations with EU27.

The political Phoney War is coming to an end.

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Brexit Diary – one hurdle surmounted, but another gets more awkward

14th March 2017

Yesterday the Bill to enable the Prime Minister to make the Article 50 notification passed both Houses of Parliament.  The parliamentary page for it is here.

The Bill should soon have royal assent, if it has not already.  (Contrary to urban myth, royal assent is not given by the monarch personally, but on their behalf.)

The Bill has not been amended from the version first presented by the government.  In essence, the Bill places the government in the position it was in before the High Court ruled that it would be unlawful for the notification to be made without parliamentary approval.

(My Jack of Kent post yesterday on MPs as ‘delegates’ not ‘representatives’ is here.)

But as that obstacle to Brexit falls away, another very much came into view yesterday – not an obstacle as such to Brexit but to a ‘hard Brexit’.  This, of course, was because of the the speech of the Scottish First Minister.

This can be read here.  The First Minister announced that there will be an independence referendum when the Brexit proposals become clear.

The (intended) effect of this speech is to place UK government policy on a wire.  If the outcome of Brexit is too ‘hard’ then there will be an independence referendum for Scotland which may support independence.

(My piece on the constitutional context of the speech is at the FT.)

The one immediate effect of the speech is that the buzz about an Article 50 notification being sent this week has been quashed – the notification will now be sent by the end of this month.

Brexit continues to be fascinating.

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Are MPs now delegates rather than representatives?


13th March 2017

One of the stock answers which a new Member of Parliament learns is that they are representatives not delegates.

Certain MPs will go further and invoke solemnly the words of Edmund Burke in his famous speech to the electors of Bristol (1774):

Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

There is sense in this approach.

Electors can get rid of MPs at elections.  MPs can in the meantime vote as they wish.  There is thereby a pressure valve between the voters and the matters before a legislature.

If a MP goes against what his or her voters want then a new MP can be elected at the next election.

This valve is a feature of the UK’s “parliamentary democracy”.

And, in turn, “parliamentary democracy” is a principle of the (uncodified) British constitution.

Against this principle is now this relentless and alien doctrine of the referendum mandate.

The 2016 referendum on EU membership was not legally binding: MPs could have legislated for this but chose not to do so.  MPs instead chose for the Brexit referendum to have advisory power.

But it is now being treated by many MPs as having total power: things are being done in the name of the “mandate”.

Today in the House of Commons there were two votes on sensible amendments to the Article 50 notification bill.  These amendments had been inserted by the House of Lords.  But they were voted down by the majority for no good reason.

Perhaps there was a good reason which was not easy to detect.  Perhaps.

But it seems to me that many MPs who vote on Brexit are betraying – instead of serving – their constituents, when they sacrifice their judgment to their constituents.

Maybe this is a good thing.  Maybe “parliamentary democracy” is better circumvented than observed.

That is a matter of opinion.

But is also a matter of principle: either “parliamentary democracy” is taken seriously as a principle or it is not.

And when a MP next reaches in his or her mind for the stock Burkean response to being asked about why they are not voting as their constituents would prefer on a particular issue, they will find the words are empty.

On Brexit, many MPs are voting as – and behaving like – delegates not representatives.

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Brexit and the WTO schedules

28th February 2017

Today’s post at the FT is about Brexit and the WTO schedules.

In this post I argue  that there is one way in which Brexit will *not* be as complicated as initially feared.

WTO renegotiation will be undoubtedly fiddly and tiresome – about as complex a technical readjustment as one can imagine – but it is ultimately not a predicament but a chore.

The post already has the sort of comments which make online abuse worth it:

 

Predictions and Article 50

1st February 2017

Sometimes you get things correct.

Over the last year or two, I have set out here, or at the FT or on Twitter, the following things which seem to have weathered well:

– that the hurdles to repeal of the Human Rights Act would be difficult (that Act’s repeal is now delayed or put off altogether);

– that the EU referendum was not legally binding (it wasn’t, and that is why there had to be an Article 50 Bill – and note this was pointed out before the referendum); and

– that the necessary implication of Theresa May’s stated views was that the UK would be seeking to not be part of the Single Market (which was then admitted by the Prime Minister in a speech a week afterwards).

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Getting things right is nice, but sometimes it is far more interesting when things don’t go as you think they will.

Last summer just after the referendum result I thought it highly unlikely that the Article 50 notification would be sent, if it was not sent straight away.

(A couple of times I even slipped and said “never” but that was only my view for a few hours.  Usually I was careful to say it was improbable not impossible.)

I am not a fan of the EU and have never written in favour of it.  Had I been able to vote in 1975, I would have voted against membership.  I have opposed every EU treaty since Maastricht.  So this was not wishful thinking (as far as I can tell). In fact, it was almost the reverse.

One reason the UK should never have joined the EU is because it would be so difficult for the UK to leave.  UK law and policy became entangled with the EU so much one could not see where one began and the other ended.

Given this immense entanglement (which will take years, if not decades, to chop away), I thought the government would go for the path of least resistance.  Very few people with power in Westminster and Whitehall want the UK to leave the EU.  There is a national habit of putting things off: procrastination is a principle of the British constitution.  And there are always events to knock things off course.

I just though there would be delay after delay.  And I still think this is a fair view, on the basis of information available last summer.

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So what changed?

Two things changed.  Both are significant.  The first thing is somewhat amusing to admit (that I thought a politician would be rational), but it needed the second thing.  The first one by itself was not enough.

The first thing is that Theresa May became determined for political reasons to push for notification, regardless of any other factors, and even if there was no rational basis for such speed.  This determination was shown in her conference speech.

The second thing is that it became plain the two year period of the Article 50 process could be circumvented: things could be put off and dealt with as part of transitional arrangements and adjustment phases.

So in early October, as the facts changed, I changed my view: I still thought notification more unlikely than not, but it was more finely balanced.

And in January, as the sheer political determination became starker, and the thinking about offloading things into transitional arrangements and adjustment phases became more commonplace, I changed my view to the notification becoming more likely than unlikely.

And today’s Commons vote on the Article 50 Bill now makes the notification highly probable.

None of this makes the process of Brexit any easier: the UK is still moving towards a complex and unpredictable and time-consuming predicament. But the path to the Article 50 notification which commences the formal Brexit process has become clear.

My only prediction now is that those who doubted that the Article 50 notification would ever be seen will get a good-natured ribbing by those who never had such doubts.

Looking forward to Theresa May’s speech on Brexit

16th January 2017

The prime minister Theresa May is to give a speech on Brexit this week.

For somebody who professes not to want to give a “running commentary” her speech is widely trailed in the media.

And for somebody who is often described as wanting to keep her cards to her chest, she has played a number of cards already.  On the card table are the following:

– the intended date of the Article 50 notification;

– the intention to keep to the Article 50 two-year timetable without an extension;

– the intention for the United Kingdom to leave the European Union;

– the intention for the United Kingdom to leave the jurisdiction of the European Court of Justice;

– the objective of the United Kingdom to take control of its borders (ie, ending free movement of persons);

– the objective of the United Kingdom to take control of its laws; and

– the objective of the United Kingdom to take control of its money (ie, ending compulsory contributions to the European Union budget).

Given these open positions, it is hard to see what cards are still in her hand.

This week’s speech is expected to say that the United Kingdom is prepared to leave the single market.  But, as I have set out on this blog and at the FT, the departure of the United Kingdom from the single market is the necessary implication of the positions which the prime minister has admitted to holding.

Perhaps the speech will reveal something about how the United Kingdom is seeking to attain the objectives.  Perhaps there will be some statements about still-unknown issues such as the United Kingdom’s position on a customs union.

Or perhaps it will be a sequence of slogans and ambitions, without any substance on how they will be converted into reality.

More important may be the interview from the chancellor of the exchequer Phillip Hammond with a German newspaper.  He often seems to be the only grown-up in the cabinet.

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An argument as to why a “hard Brexit” will be the natural and direct consequence of an Article 50 notification

12th January 2017

This post sets out in summary form an argument I have set out at the FT (here and here) and on Twitter.

My argument is that, regardless of the express statements of the prime minister and her government, the UK is bound to have a “hard Brexit”.

By “bound” I mean that it will be the natural and direct consequence of an Article 50 notification.

By “hard Brexit” I mean that, once the United Kingdom leaves the European Union (either at the end of the Article 50 period of two years (or as extended) or at the end of any transitional/adjustment period) the United Kingdom will not be part of the “single market”.

For the reasons set out below, I contend that once the Article 50 notification is given, a “hard Brexit” will ultimately follow.  I would say that, if the reasons remain sound, that the “hard Brexit” is as good as inevitable, in that (a) it is the the natural and direct consequence of an Article 50 notification and (b) there seems nothing to prevent that consequence.

The first reason is that “hard Brexit” is the default position.  This will be what will happen, unless something happens to prevent it happening.  The question then becomes what could prevent it happening.

The second reason is that “hard Brexit” is also the settled and unanimous position of the remaining 27 member states.  As long as this remains the case, then nothing will come from the EU27 to prevent the default position being the case.

The third reason is that “hard Brexit” is also the necessary and logical position of the UK government.  Even though this is not explicitly admitted (for some reason), it is the only possible implication of five of the UK government’s stated objectives.

Those objectives, in turn, comprise two precise objectives and three general objectives.

The first precise objective is, of course, that UK is no longer to be a member of the EU.   As I set out at the FT:

“this at a stroke will mean, as a matter of international law, Britain is no longer obliged to accept the “four freedoms” (of movement of goods, services, labour and capital) prescribed by the treaties, nor comply with any of the regulations and directives that set out the common standards of the single market.

“It will also not have any formal role in any of the EU institutions — the council, the commission and the parliament — charged with the formulation and implementation of the rules of the single market. Membership of the Union is a binary matter, and once Britain is outside, a great deal falls away.”

The second precise objective is that the UK will no longer be subject to the jurisdiction of the European Court of Justice, another binary matter (you either are or you are not).  As I again set out at the FT:

“The UK would therefore be removed from the formal mechanism for dealing with disputes about the interpretation and enforceability of the rules of the single market.

“And without such a mechanism, the rules of the single market are polite fictions and aspirations. (Some would say that they are anyway.)”

The three less precise demands also point to the UK leaving the single market.   These demands are that the UK will take control of:

(a) its borders,

(b) its laws; and

(c) its money.

If these demands are also achieved then it is hard to see how the country can also remain part of the single market.  Also from me at the FT:

Control over borders undermines the freedom of movement of people (or of labour)…

“…control over laws means not accepting the qualified-majority-based deference to much of the rule-making for the single market;

“…and refusal to make compulsory contributions to the EU budget means that one can hardly participate in (or even influence) the formulation of single market rules that will affect the UK.”

The combination of these two precise demands and three general demands make it impossible for the UK to remain as part of the single market.

The UK will still, of course, have “access” to the single market.  As I explained at the FT, even the Clangers would have access to the single market if they condescended to trade their soup and blue string pudding surpluses with us mere earthlings.

The question is on what terms that access is given.

The UK remaining a member of the single market could be possible, on some sort of EEA or Norweigian model, but I cannot see how that could be done if the five demands are met.

For completeness, the issue of whether Article 50 process is revocable does not in my view directly affect the argument above for, even if it is revocable, the UK government has said it will not revoke it.

And also for completeness, I note the government has asserted that it will negotiate the best possible deal regarding the single market.  But insofar as such a statement has any meaning, I do not think it affects the argument above.

I am happy to be corrected (and use comments below), but on the basis of the argument set out above, a “hard Brexit” must be the natural and direct consequence of an Article 50 notification.

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The resignation of Sir Ivan Rogers

3rd January 2017

The announcement today of the resignation of Sir Ivan Rogers as the UK’s ambassador to the EU is significant.

Coming just weeks before the planned Article 50 notification, the resignation is a setback on any sensible view.

During the run up to the notification, when the government (we are told) is finalising its negotiation strategy, the UK is likely not to have a lead negotiator in place in Brussels, let alone one helping shape the Brexit strategy.

Whatever one’s view of Brexit, this cannot be a good thing.

Some are seeking to dismiss the resignation as being of no importance.

A few are taking comfort from Rogers being the one who led the botched Cameron negotiation before the referendum.

The Cameron negotiation was, of course, doomed from its inception.

There was no surprise that the big demands got nowhere and the small concessions gained were soon forgotten.

The fault of that botched exercise lay with the lack of realism of the Cameron circle (who then tried to blame Rogers and others) and not with those who pointed out the problems.

If you look at the detail of what happened in the Cameron “deal” then you will see vindication for Rogers and others who warned of the problems.

Cameron went to Brussels to demand the impossible, and had no back-up plan if things did not go as he hoped.

And May is about to do exactly the same.

The UK is not bound to make a bad deal in exiting the EU.  Few things are impossible in human affairs.

But the loss of Rogers (and his cautious realism and knowledge of those involved) makes a bad deal more likely, especially at this point in the negotiation preparations.

The inevitable effect of the resignation is that the negotiation preparations will now take place without the involvement of the person who will lead the UK side in the negotiations.

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The meaning of Brexit

3rd January 2017

“Brexit means Brexit” has quickly passed from a convenient political slogan to something approaching a national joke.

Any discussion of the meaning of Brexit is haunted by what is now a stock catchphrase.

Like a game show host, one only has to ask what Brexit means to get the Pavlovian, chucklesome response of “Brexit means Brexit”.

But there are still good reasons to try to define what is (and is not) meant by Brexit.  The exercise is not altogether futile.

This is not least because those seeking to give effect to Brexit use the term so as to justify whatever they want.  The people voted for Brexit, and so in the name of Brexit, these things must be done.

One should always be wary of potency of short political words.  As Madame Roland was supposed to have asked, “O Liberté, que de crimes on commet en ton nom!” (O Liberty, what crimes are done in your name).

The more those deploying a political word demand from others, the more scrutiny there must be.

We can all giggle at the absurd tautology of Brexit meaning Brexit.  But until the meaning of the word is addressed then there may be little check on what it can be used to legitimise.

Soon it may be too late to ask of Brexit what idiocies are done in its name.

Brexit will mean whatever its proponents can get away with.

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The main problem of defining Brexit is one of breadth.

There is a narrow meaning which most people will agree: Brexit is about the United Kingdom leaving the European Union.

But if this was all that Brexit meant to those debating the future of the UK and the EU then there would be no scope for serious dispute.

To see whether Brexit had been achieved would require one looking at some official list of EU member states and, when the UK is no longer on that list, then Brexit would have happened.

Brexit would be something one could verify with a simple binary test.  Brexit would be a technicality.

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But Brexit invariably means more than this, especially to its supporters.

Brexit can mean the UK no longer participating in the EU “single market”.  Brexit can mean a cessation of freedom of movement.  Brexit can mean an end to EU budget contributions.  Brexit can mean a rejection of the jurisdiction of the European Court of Justice.  Brexit can mean the UK leaving the EU customs union and being able to set its own tariffs.

Brexit can mean all of these things, or any combination of them.

And for that permutation of Brexit, the supporter will insist adamantly that Brexit must mean Brexit.

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The cause of the terminological difficulties is, in my view, that the simple, factual definition of Brexit (of the UK’s membership of the EU) has been tied to the unstable but powerful political notion of a mandate, which in turn comes from the referendum result.

The majority vote for Leave in effect “super-charged” the meaning of Brexit.

Those with a wide view of Brexit now have every interest in the word meaning as much as possible, whilst those opposed to (or unhappy with) Brexit now have the corresponding interest in the word meaning as little as possible.

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Interestingly, the Oxford English Dictionary has published its definition:

“Brexit (noun): The (proposed) withdrawal of the United Kingdom from the European Union, and the political process associated with it.”

This accords with the narrow definition offered above.

But significantly, this is not the entirety of the OED definition, for added in smaller print is  this elaboration:

“Sometimes used specifically with reference to the referendum held in the UK on 23 June 2016, in which a majority of voters favoured withdrawal from the EU.”

Brexit places the demand that the UK leaves the EU in a specific time and place: as a consequence of the 2016 referendum vote.  This is why the second part of the OED definition is important, and the OED was right to add it.

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I am not opposed to Brexit in principle.  I am largely indifferent to whether the UK is a member of the EU or not.  I am in favour of the single market (a great UK political and economic achievement of the 1980s, and its architect Lord Cockfield is in my mind the second most significant Tory politician of the period).  I am also in favour of freedom of movement.

On the other hand, I believe the EU institutions are too powerful and the teleological “genetic code” of “ever closer union” is misconceived and illiberal. I have opposed every treaty and major treaty change since Maastricht, and I am flat against the Euro.

(There used to be a word for this sort of view – “Eurosceptic” – but it fell out of favour.)

So, for what it is worth, on some definitions of Brexit I am neutral, and on others I am opposed, and on some I am slightly in favour.

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The lack of precision over the meaning of Brexit suggests that there will never be an agreed end to the process.

The UK leaving the EU will not be enough for many Brexiteers, especially if it is a BEANO (Brexit existing as name only).

Brexit will always mean something else needs to be done.

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