One of the easiest things for a reporter to produce is knocking copy about the judiciary and the legal system. The “law is an ass” piece almost writes itself. Readers are more than ready to nod-along with any attack on a supposed judicial idiocy or misapplication of the law.
Alongside the copy will be the usual photographs of a grown-up wearing a silly costume and wig. (For, as Danny in Withnail and I avers in his story of the defendant accused by a judge of wearing fancy dress: “You think you look normal, your honour?”) Add to this the inherent human interest in stories of apparent injustice, and an element of class prejudice against posh and out-of-touch judges, and then you understand why monstering the judiciary is a staple of the popular press. Such pieces can be fun to write and fun to read. Read more
The US president has tweeted the following in response to the appeal decision on his executive order on travel restrictions:
Commercial litigation tends, however, to have a commercial solution. Disputes about money are invariably resolved by money. In this way, commercial litigation is a special form of business deal-making, which takes place within a framework comprising court procedural rules, the rules of evidence, and the black-letter substantive law. But it is a form of business deal-making, all the same. Almost all commercial litigation ends in settlement. Read more
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The UK government on Thursday published the bill that will enable the Article 50 notification to be made. A bill is essential because of the Supreme Court decision on Wednesday.
The bill is a short one. It could hardly be shorter. It is so short its wording could be fitted on the side of a bus and still be read. It is what is known as a “one-clause bill”. The bill provides for a discretion — though not an obligation — for the prime minister to send the Article 50 notification.
The operative clause, in its entirety provides:
“(1)The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
(2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.”
Parliament, not the government, is the ultimate power in the land Read more
The government has lost its appeal at the UK Supreme Court in the Article 50 case, which means triggering Brexit requires parliamentary approval in the form of an act of parliament.
The court was asked for a “declaration” as to whether prime minister Theresa May can use the so-called “royal prerogative” to formally commence the process for Britain to leave the EU. The ruling, by a majority of eight to three, was the second possible outcome I outlined in my earlier post, which means the earlier High Court is upheld and Theresa May has to bring a bill before parliament. Read more
Pro-Brexit protesters gather at the Houses of Parliament in November urging Theresa May not to delay triggering Article 50 notification © Getty Images
The UK Supreme Court will hand down its judgment later this morning in the Article 50 appeal case. Nobody outside the court will know the decision before today, and the lawyers for the parties will be told just in advance.
The appeal hearing was in December, and the Supreme Court has moved quickly to get the judgment out by the end of January.
(My post on what we learnt from the Supreme Court hearing is here, and my reports from the hearing are here. The excellent and fully linked Supreme Court page is here. See below for an update on the decision)
The court is being asked for a “declaration” as to whether the government can use the so-called “royal prerogative” to make the Article 50 notification, which formally commences the process for Britain to leave the EU. Read more
A potted history of the UK’s relationship with the EU can be given as an imagined conversation:
UK: Can we join?
UK: Go on, please.
EU: OK then.
UK: We want a rebate.
EU: Here is a rebate.
UK: We want a single market.
EU: Here is a single market.
UK: We want EU expansion to the east.
EU: Here is EU expansion to the east.
UK: We want opt-outs on Schengen, on social policy, on the charter of fundamental rights, on the euro…
EU: Here are all your opt-outs.
This is why the EU is no longer minded to be compromising. That Britain is now leaving means there is no point in further concessions. The main (perhaps only) bargaining power the UK ever had — continued membership of the EU — has gone. And that power was becoming less compelling, as David Cameron’s ill-fated deal last year showed. Now there is no inherent reason for any demand by the country to be met, unless it happens also to be in the selfish interests of the EU and its remaining member states. Read more
Theresa May delivers her speech on Brexit in London on Tuesday © Getty Images
For a speech that she did not need to make, Tuesday’s Brexit speech by Theresa May was significant. Had the day come and gone without anyone being told there would be a speech then nobody would have expected or asked for one. The first significant thing about the speech is that she gave one at all.
And it was not a bad speech. You could not have reasonably asked for any more detail at this stage of the process. There was even some new information. This was not that parliament would vote on any final Brexit deal (there would be no other way) or that the UK would be leaving the single market (this was the necessary implication of what was already plain). The two things that were new and significant were about the customs union and about “phased implementation” (that is, transitional arrangements). Read more
Theresa May, UK prime minister © Getty Images
Theresa May is expected to announce this week that the UK may leave the EU single market.
This is not much of a surprise. As this blog (and other commentators) has pointed out, the necessary implication of the Brexit objectives to which the prime minister has admitted is that Britain will have to leave the single market. Any formal announcement of this is just confirmation.
But the announcement raises a significant constitutional issue. At the 2015 general election, the Conservatives obtained an overall majority with an explicit manifesto commitment to “safeguard” the UK’s position in the European single market. That was the express promise on which Mrs May and her Tory colleagues were elected. Read more
Theresa May © Getty Images
On Monday, Theresa May complained about being misrepresented by the media about Brexit. The prime minister is reported as saying:
“I am tempted to say that the people who are getting it wrong are those who print things saying I’m talking about a hard Brexit, [and that] it’s absolutely inevitable there’s a hard Brexit. I don’t accept the terms soft and hard Brexit.
“What we are doing is going to get an ambitious, good and best possible deal for the United Kingdom, in terms of trading with and operating within the European single market.”
Are the media misrepresenting the prime minister? Read more
Theresa May © Getty Images
The Sky interview by Sophy Ridge of Theresa May on Sunday is worth close attention. The headlines were about the prime minister’s answers to the questions about Donald Trump. But it was her responses to the probing at the start of the interview about the single market that were perhaps more interesting. Read more
Arthur Cockfield: He made a plan and made it work © Getty Images
Once upon a time there was a Conservative politician from the UK with an ambitious but realistic plan for what is now the European Union.
The politician was Lord (Arthur) Cockfield, in my view the second most significant Tory politician of the 1980s. His proposal was for providing a framework for a single European market by 1992, and it was pretty much achieved within the target period of eight years.
As a member of the European Commission, Cockfield — who died a decade ago this month — produced a white paper in 1985 that put forward a practical and sensible way of achieving a complex task within a set period. That was the sort of thing Tory politicians could once do. Read more
Cases of files arrive at the Supreme Court in London for the appeal hearing in December © Getty Images
In the event that the Article 50 notification is sent in March 2017, just weeks away, many commentators — including me — will get a deserved kicking. From the referendum result onward I have been doubtful that the notification would indeed be sent. On a couple of unguarded moments I even said it would never be sent. I shifted my view in October to saying the notification was possible but was less likely than likely.
As it is now over six months since the referendum result, the time has perhaps come to revisit this prediction. Looking at it from now and with currently available information, how likely is an Article 50 notification by the end March 2017? Read more
One crucial question about Brexit is about whether the Article 50 process, once invoked, can then be revoked. Article 50 is silent. The one court which can answer the question, the European Court of Justice, has so far not had any reason to decide. Many people have confident opinions but nobody knows for certain.
There is no real doubt that the process can be revoked if all the EU member states agree, though this is more a statement of political reality than strictly one of law. The issue is more about whether the process can be revoked unilaterally, or with anything less than unanimity. Most pundits seem to say that it can be revoked, and there is support for this in public international law (the law which governs treaty-making) and from Lord Kerr, who wrote the provision. On the other hand, an easily revoked Article 50 process would undermine the hard two-year limit: there is little point in such a deadline if the clock can constantly be re-set. Read more
The Supreme Court appeal heard this week what may turn out to be the UK constitutional law case of a generation. Read more
On Monday, the UK Supreme Court will begin hearing a significant constitutional case relating to Brexit and Article 50, known as “Miller” after one of the claimants. Below is a guide to what the case is (and is not) about and why it is so important.
The issues Read more
Prime Minister Theresa May is being careful about what information is available to her opponents in the Brexit negotiations. There will be “no running commentary” or any substantial disclosure from Downing Street. Her opponents, however, are not the various EU institutions. Brussels probably knows the strengths and weaknesses of the UK negotiating position better than the UK itself.
No, her true Brexit opponents are the UK’s media and politicians and, by extension, the public. Mrs May and her government are in an intense negotiation to obtain approval from those to whom they are, in theory, accountable. This is the settlement which matters most. The actual exit terms with the EU are of secondary importance. Read more
What should we make of the Article 127 challenge to Brexit which has been discussed over the last couple of days? Is this a serious way by which the UK can remain part of the single market? Is Article 127 as important as Article 50, if not more so?
The Article 127 in question is not a provision in the EU treaties. The provision is from the agreement for the European Economic Area (EEA). The EEA is a combination of the EU member states, as separate signatories, and three of the four members of the European Free Trade Area (EFTA). In essence, membership of the EEA means membership of the single market. Read more
Pro-EU supporters outside the High Court in London, which has been hearing the Article 50 case © Getty Images
When the UK makes a notification under Article 50 that it intends to withdraw from the EU there is the legal question of whether that notification can be revoked unilaterally.
Nobody knows the answer.
If it is revocable then the UK and EU will not be bound to go through with the exercise if conditions or preferences change: the UK can put the revolver down.
But if it is irrevocable then the UK will be out in two years or so, even if no exit deal has been agreed: once the revolver is fired the bullet cannot be stopped. Read more
David Davis, Brexit minister © Getty Images
On Monday, Prime Minister Theresa May gave a speech in Copenhagen. She mentioned “free trade” three times but the single market not at all. In Westminster, the Brexit minister David Davis gave a statement and answered questions in the House of Commons, where he was at ease with the UK not being a member of the single market. In one answer he said:
“we will seek to get the most open, barrier-free market that we can. That will be as good as a single market.”
Mr Davis deftly dealt with the distinction between a “hard” and a “soft” Brexit by saying the distinction did not exist:
“the words hard and soft Brexit are designed to deceive. They are not meaningful in any way. We are talking about the best possible trade access.”
Mr Davis also set out his utopian vision of Brexit, where there is no downside and only upsides:
I highlighted three of the four main aims that we are after. One is to regain control of our borders. Another is to get back control of our laws. The one I did not list was our aim to keep our justice and security arrangements at least as strong as they are. Finally, and most importantly in this context, the United Kingdom must aim to maintain the best possible open access to European markets and vice versa. If we can achieve all that, there will be no downside to Brexit at all, and considerable upsides.