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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
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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
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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
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
Theresa May, UK prime minister © Getty Images
The UK government is seeking to do as much of Brexit as possible without involving parliament. It does not want parliament to make the formal decision to leave the EU or even decide what type of Brexit the country should seek, and it does not want to keep parliament informed about the negotiations. The government is getting away with this because of the summer referendum, which, in fact, had no binding effect in law.
The Brexit referendum was a plebiscite, and plebiscites are paradoxical things. On the surface they are exercises in direct democracy, allowing the people to determine political questions for themselves. But in substance, they provide the executive with the means to circumvent and frustrate those other organs of the state that would otherwise provide checks and balances. Plebiscites seem liberal but they can be used for illiberal ends. Read more
Theresa May, UK prime minister © Getty Images
Wanting something to happen is never enough. More than mere desire is needed. This simple truth is obvious in the current state of Brexit policy in the UK.
The discrepancy between will and capability is not new. In the days following the Brexit referendum vote, the Conservative minister Rory Stewart made the distinction: there would be no shortage of political will, he averred, but the important question was whether there would be the political capability. That is still the key question. Read more
The Houses of Parliament © Getty Images
It is one thing to assert “Brexit is Brexit” and quite another to make it come about. Any departure of the UK from the EU is not going to happen by mere incantation of a grand phrase. There also has to be some legal means. So what are the legal means by which Brexit can happen?
Some say it can be done by the prime minister (with or without cabinet) as part of the so-called “royal prerogative” – the legal fiction that a minister may exercise the remaining powers of the crown which have not been limited by statute. The prime minister can, for example, enter into treaties on the basis of the royal prerogative.
Others say it can only be by an Act of Parliament — and these people are willing to litigate the point. The argument here is that there is legislation such as the European Communities Act which give individuals rights under EU law so it is not open to the executive to frustrate or circumvent this statute. Primary legislation would therefore be needed. Read more
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Not all problems have solutions. And the political problem now caused by the decisive Leave vote in the UK does not lend itself to any straightforward solution in practice.
Part of this is because there was never a good objective reason for the referendum in practice, and part is because the referendum did not have any legal effect. It was always an unnecessary referendum with no legal consequences. In legal terms, it was a glorified opinion poll. Read more
The third painting in the series, 'The Humours of an Election' by William Hogarth, 1755. Granger, NYC/Alamy.
The UK Conservative party is facing serious allegations and extensive investigations in respect of their campaign expenses at last year’s general election. Read more
The Houses of Parliament © Getty Images
Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?
First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.
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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more
It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more
Michael Gove © Getty Images
The United Kingdom’s Conservative party no longer has to share power as part of a coalition. Now it has a majority in the House of Commons, one of the very first things the Tories want to do is repeal the Human Rights Act 1998 and replace it with something that purports to protect the rights of citizens but has a weaker connection to the European Convention on Human Rights. Getting rid of the Act is a long-standing objective of the Conservatives, and they now want to repeal it at speed.
According to the Guardian, repeal of the Act is an urgent priority for the new government:
The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.
The “pledge” is in the 2015 party manifesto, which contains the following statements about the Act:
We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. [...]
The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. [...]
We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.
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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.
Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?
Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.
And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.
Very few citizens of the UK appear to have any great interest in constitutional affairs. And, other than those with a passion for devolution of its constituent nations, there are probably a few hundred people who ever give constitutional reform any serious thought.
Many do not even believe that there is even a constitution in place; such things are instead what foreign folk have to cause themselves needless difficulties. A sincere concern with constitutional affairs seems the preserve of the Tory fogey or the academic radical, but is not the stuff of serious politics. Read more