Theresa May announces she will seek a mandate with a general election © Getty Images
On Tuesday, the prime minister Theresa May said there will be a UK general election on 8 June 2017. In technical legal terms this should not be for her to decide. It is a decision for parliament. But in reality the decision is that of the prime minister even though the law says otherwise.
Before 2011, the power to dissolve parliament was one of the prerogative powers that the prime minister could exercise on behalf of the crown. It was perhaps the prime minister’s greatest power: it would be used rarely but the possibility of it being exercised was enough.
Then in 2011, as part of the coalition government’s programme, a Fixed-term Parliaments Act was passed. The intention was to take the politics out of the dissolution of parliament. There would no longer be the risk of a snap general election. Read more
Boris Johnson © Getty Images
The demand was unexpectedly precise, and as a particular demand it seemed almost to come from nowhere. In her speech to the conservative party conference in October 2016, the newly appointed prime minister, Theresa May, made ending the jurisdiction of the European Court of Justice in the UK a firm commitment for Brexit.
Unlike most of the other Brexit promises up to that date, such as “taking back control” of “our” laws, borders or money, this was not vague. The jurisdiction of any court is, and always should be, a binary matter. Either you are subject to the jurisdiction of a court or you are not. This was a “yes/no” issue. Read more
Theresa May's Article 50 notification letter © Getty Images
Legal documents should be allowed to just be legal documents. This is not only true of contracts and wills. It is true of statutes, which should not be given daft populist names or have provisions that have no possible legal effect.
It is also true of notices being given under treaty provisions, such as notifications under Article 50(2) of the treaty on European Union.
This week, the UK prime minister Theresa May sent the Article 50 notification for Britain to leave the EU. This was contained in a six-page letter, of about 1,000 words. There were underlined sub-headings, passages in bold and even a sudden (and unexplained) outbreak of numbered paragraphs. In form, if not in substance, the letter was all over the place. Read more
David Davis © Bloomberg
Twelve days ago it was reported that a draft white paper for the Great Repeal Bill of “around 50 page long” was circulating in Whitehall. On Thursday it was published. The document is in fact 44 pages long, of which half a dozen are completely blank and four have only large blue rectangles. Of substance, there are about 18 pages. Nine months has been spent preparing this document, so that means an average of two pages a month.
This white paper is essentially a discussion document, scoping the problems in general terms and suggesting equally general workarounds. Some of these proposals are not bad (at least a first glance). There is a sensible suggestion of making the case law of the European Court of Justice binding as a matter of domestic law until the domestic courts (or legislators) change it. Read more
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
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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
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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