Henry VIII © Getty Images
Voltaire once said that the Holy Roman Empire was neither Holy, nor Roman, nor an Empire (“ni saint, ni romain, ni empire“). Much the same can be said of the UK government’s Great Repeal Bill, which is to be the main legislative basis of the practical process of Brexit.
There is not yet a bill. There is no draft bill for consultation. There is not even a white paper, although there was news on Monday that one is on its way — a draft is, it seems, in circulation in Whitehall. It is about 50 pages long and will, it is said, be published when the Article 50 notification is made.
The bill is not about repeal, at least not primarily. Its primary purpose will be to place into local UK law almost the entirety of currently applicable EU law. In a wonderful paradox, the bill will, in effect, be the greatest single imposition of EU law in UK legal history. This is what “taking back control” has to mean in practice. Read more
The Queen © Getty Images
On Thursday, the legislation for Article 50 notification gets royal assent. The Queen does not do this personally — no monarch has done so since 1854. This is unlike bills signed by, say, US presidents. But royal assent is what makes a bill an Act of Parliament. The power of the prime minister to make the notification is now part of the law of the land.
There is a somewhat academic question of what at law constitutes the decision of the UK to leave the EU as required by Article 50 before such notification is sent. I deal with that geeky constitutional law question here.
But the significance of the new act of parliament is that it is now, once again, in the hands of the prime minister. In legal(istic) terms, we have reverted to the position Theresa May thought she was in before the High Court decision in the Miller litigation. She can now make the notification at a time of her own choosing. Read more
Ozymandias: 'Look on my works, ye Mighty, and despair!' © Getty Images
Imagine you are from a state in a political union with other states. Imagine that this means there is a shared market, and that certain political decisions are made at the union level and others are made at the state level.
Imagine now a referendum in that state on the issue of membership of that union. On one side are those who want the state to be free of the ties. On the other side are those at ease with the state being part of the larger political entity. How would one approach this debate from first principle? Read more
Scotland's first minister Nicola Sturgeon holds a cabinet meeting on Tuesday © Getty Images
When the Supreme Court judgment in the Miller case declared that there needed to be an act of parliament for the Article 50 notification to be made, there was relief — even delight — in parts of Whitehall and Westminster.
Yes, the UK government had lost on the narrow point: it was not lawfully open for the prime minister to make the notification under the so-called royal prerogative. It had been roundly defeated on the main part of the application, notwithstanding instructing the attorney-general to represent its defence.
Yet the government was happy not to have been bested on the wider basis of devolution. There would be no need, decided the Supreme Court, for any formal involvement for the devolved administrations of Scotland, Wales and Northern Ireland. Still less was there any legal basis for a veto. Read more
The official residence of Nicola Sturgeon, Scotland's first minister © Getty Images
Once upon a time, wise British small-c conservatives and small-u unionists knew better than to meddle with constitutional matters. Even though, from time to time, constitutional changes were necessary, they were not to be entered into lightly. You never knew what would happen next.
The folly of David Cameron’s un-conservative referendum on UK membership of the EU now has a fresh consequence: today, the Scottish first minister Nicola Sturgeon said there should be a new independence referendum once the UK’s terms of departure were obvious. The date for such a referendum will be between autumn 2018 and spring 2019. The union with Scotland is therefore at stake. Read more
© Getty Images
Legal agreements do not really exist for when things go well. They are more for when things go badly. The primary, sometimes only, purpose of any contract is to regulate the consequences of things not going in the manner hoped for. For it is only when something goes wrong that the parties want to be able to go to a court to enforce the terms of the legal instrument.
Anyone entering into a complex and high-value legal relationship should be careful. What are the allocations of risk for all the foreseeable things that can go awry? How can the relationship be brought to an end? The parties to a deal should be unsentimental and painstaking: in the event of anything undesirable happening then the respective positions of those involved should be clear. Read more
One of the best tweets occasioned by Brexit was sent not long after the polls closed on the day of the referendum:
The speed of the count was not the only impressive electoral feat of the Gibraltar vote that night. Ninety-six percent of those who voted in Gibraltar wanted the UK to remain in the EU. This was by far the highest support for EU membership in any area that voted in the referendum.
But what are the consequences for Gibraltar of that referendum’s overall vote for Brexit? Has the vote for Leave placed the Rock in a hard place? Read more
Brexit will be shaped by the World Trade Organization in at least three ways.
First, the so-called “WTO option” would be the default position if there is no trade agreement between the UK and EU (and indeed between the UK and anywhere else) when the UK leaves the EU. The UK would then have to apply the same tariffs and other measures to all imports, including those from the EU. The extent to which this outcome is feared will affect whether any trade deals are achieved in time. The WTO option is the cold hard floor on which the UK will splat down if no safety net is in place in time. Read more
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
© Getty Images
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