Giving Parliament the Final Say

As anyone reading this post will know, the House of Lords is considering various proposed amendments to the European Union (Notification of Withdrawal) Bill.

One amendment – that would give Parliament the right to approve (or implicitly reject) the deal concluded by the Government – seems to be acquiring proper momentum. Overnight The Sun reported a Cabinet minister saying:

“At the end of the day, Parliament is sovereign. We have to take MPs with us on Brexit.

“If we don’t either they will force us, or the courts will. That is now becoming clear”.

The leading amendments appear to be those proposed by Hayter/ Lennie/Hannay/Pannic and Lester/Jones/Kennedy. You can read both here but they provide (respectively):

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It is possible – indeed it may well be likely – that there are nuances I am missing but neither seems to me to be perfect. What follows is my redraft and extension of the Lester/Jones/Kennedy amendment.

I offer it in the hope that the good men and women of the blogosphere will improve it further (in the comments section). Please: tell me where I’ve messed it up – or where it could be improved.

Parliamentary consent to the final terms of withdrawal from the European Union 

(1)           The United Kingdom may not withdraw from the European Union under Article 50 of the Treaty until—

(a)   where a Minister of the Crown proposes to conclude with the European Union an agreement setting out the arrangements for the withdrawal of the United Kingdom from the European Union in accordance with Article 50(2) of the Treaty on European Union; or

(b)   where no withdrawal agreement falling within paragraph (a) has been concluded with the European Union,

an Act of Parliament has been passed approving the United Kingdom’s withdrawal from the European Union.

(2)             No Minister of the Crown may conclude with the European Union any separate agreement pertaining to the future political or economic relationship between the United Kingdom and the European Union until an Act of Parliament has been passed approving that separate agreement.

(3)             Pursuant to subsection (1) above the Prime Minister must, within 18 months of the Government’s notification under section 1 of this Act, place before the House of Commons a draft Bill.

(4)             Subsection (3) shall not apply where the Prime Minister has previously obtained the unanimous agreement of the European Council to extend the period of two years referred to in Article 50(3) of the Treaty on European Union. On such an event the 18 month period referred to in subsection (3) shall be replaced by such period from the notification as the European Council has unanimously agreed less six months.

All three of the suggested amendments assume that the UK is able – whether through (a) having obtained the unanimous agreement of the other Member States or (b) because legally it can just decide it wants to or (c) (possibly) because this is what its constitution requires – to revoke the notification.

Brexit and the Antics of Lawyers

[What follows is a longer version of a piece published for The Times Brief earlier this morning.]

A lawyer’s mind is a curious thing. It is barely interested, often, in whether a choice is right or wrong. It acknowledges that in a complex world a simple question can have different answers. But it holds furiously to the idea that how we arrive at the answer is important.

Whose decision is this? Is it motivated by proper considerations? From whence derives the authority to make it? Post the right bricks through the right slots and you might, just might, impose a semblance of order on an unruly world.

Understand this and you will understand that which has so far escaped those who look, from the tumble of politics, askance at the ‘antics’ of lawyers.

Including my antics. Because it was only six days after the Referendum that I launched the crowdfunding exercise that concluded earlier this week with success in the Supreme Court. And which will see, today, further proceedings also crowdfunded issued in the High Court in Dublin.

The Supreme Court case was about who writes the Article 50 notification letter – Parliament or the Executive. No one should doubt that the letter will be sent. Whatever else the result of the Referendum means it must mean that we commence the process of leaving the EU. But she who holds the pen controls the process. And, at least to a lawyer, it is plain that Parliament not the Government must control that process.

There was no small print on the ballot paper. The decisions on the form Brexit takes are momentous ones. They must have the legitimacy that comes only from our supreme national Parliament. And not a Government appointed by a narrow majority of that Parliament. A narrow majority which had regard to considerations including maintaining the unity of the Conservative Party. These are considerations of process.

And what of the Dublin case? What does it do? It, too, is about process. Strip away the complexity and it looks to find an answer to a simple question: do we have the option of changing our minds about the wisdom of Brexit?

This is a question we should all want an answer to. All we know about the future is that it feels more uncertain than in living memory. Is NATO obsolete? Can our NHS survive? What humanitarian responsibilities come with our foreign policy escapades in the Middle East? What will happen to living standards as the details of what Brexit means emerge?

It must be in the national interest, in this uncertain world, that we have the option of changing our mind. Whether we actually change it will depend upon events. But what a tragedy it would be if we came to think our national interest lay in remaining but found that course barred to us. The preponderance of legal opinion is that we could decide after all to remain. But the issue is important – and our Parliament must know the answer, not merely guess at it.

So the question is about how Article 50 works. Having notified, can you withdraw your notification? Whatever the answer is for the UK will also apply to the other 27 member states. And this means that only a court to which we all subscribe can give an answer. Here, the European Court. We access the European Court via a national court. And it can’t be our courts – because the complaints includes that the other 27 have breached the Treaty by excluding us from Council meetings before we’ve notified. And that complaint can only be made in their courts.  But whichever national court we choose it ends up in the same European Court.

So my concerns are with process. Yes, I voted to Remain. Yes, if there was another vote tomorrow I would vote the same way. But, no, the Dublin case is not about blocking Brexit. It recognises the result of the Referendum. But it also recognises that people sometimes change their minds.

Does the Government’s Brexit Bill work?

This is what the Bill says:

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You’ll see that the operative clause says:

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.

And here’s what the relevant bits of Article 50 says:

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You’ll see that the UK has to make a decision to withdraw from the EU (clause 1). And then notify the Council of that decision (clause 2).

Now the Bill authorises the Prime Minister to notify the decision. But it says nothing about who gets to make the decision.

It is true that the judgment of the majority in the Supreme Court focuses on notifying the decision: see, for example, paragraph 59 which provides:

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And paragraph 101:

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On the other hand, when the majority  turns to considers the effects of the Referendum, it is quite clear that the Referendum does not constitute the decision to leave:

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And that’s because the force of the Referendum lies in the way it influences Parliament:

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In so deciding, the Supreme Court rejected the contention advanced by the Attorney General in the High Court that the decision had been made (see pages 59-61 here):

The first point is that the former Prime Minister, David Cameron, in a speech on 23 January 2013, in which he announced his intention that should the Conservative party win an overall majority in the forthcoming general election, to hold what was described as a referendum.

Secondly, a majority Conservative government having been elected in the general election on 7 May 2015, the European Union Referendum Bill was introduced in Parliament on 28 May and became an act on 17 December that year. It provided for a referendum asking the question: should the UK remain a member of the European Union or leave the European Union. We will submit that it was clear during the passing of that legislation that the government intended to act in accordance with the outcome of the referendum. (Pause)

The third point I was going to make was that the referendum itself took place on 23 June 2016, with a clear majority of those voting in favour of leaving the European Union.

Fourthly, the then Prime Minister made it clear on 24 June that the will of the British people expressed in the referendum result would be respected and acted upon.

Fifth, on the resignation of David Cameron as Prime Minister, the current Prime Minister announced her candidacy, saying she would also act on the result of the referendum.

Sixth, on becoming Prime Minister, Theresa May has made it clear repeatedly that the government will deliver the departure of the United Kingdom from the European Union and statements of other ministers have confirmed the same. So my Lords, it is the defendant’s clear contention that by the steps I have set out, a decision has been taken by the government to leave the European Union in accordance with the provisions of Article 50(1) of the treaty on European Union. And in accordance with Article 50(2) of the treaty, the next step to be taken is the notification of that decision to the European Council.

 

So if the Referendum is not the decision to leave, and the decision has to be taken by Parliament, where is the decision?

Perhaps the Government thinks that Parliament, should it authorise the Government to notify, is implicitly making a decision? Perhaps, should the Bill be enacted in this form, a court would agree that it has been made?

But, at a momentous moment like this, it’s an awfully odd way to legislate. It might be an idea for the Government to amend its own Bill.

 

A Clean Air Fund

The following is extracted from a paper I wrote last year.

I reproduce it today in light of further alarming reports on the quality of London’s air. I should say that I have three children who attend a state primary school in Central London.

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The Environment, Food and Rural Affairs Select Committee has called air quality in the UK a “public health emergency” and has linked two air pollutants alone – particulates and nitrogen dioxide (NO2) – to the early deaths of 40-50,000 people a year. The UK is in breach of NO2 limits in 38 of 43 areas.

Compared to petrol vehicles, diesel have higher emissions of NO2 and much higher emissions of particulates. However, because diesel engines are cheaper to run, diesel use has been increasing. In 1990/91 the ratio of diesel consumption to petrol was 0.395 to 1. In 2015/16 the ratio has reversed and is now 1.653 to 1. Over that same period diesel consumption has increased from 12,912 to 28,688 million litres. This increase may, in part, be attributable to the decision to align, with effect from 1 April 2008, fuel duty rates at the lower unleaded petrol rate (in effect reversing the higher rates of duty charged throughout the ‘noughties’ on diesel).

 

A projected 28,588 million litres of ‘normal’ (i.e. ‘petrodiesel’ or non-biological) diesel was released for sale in 2015/16. A 3p litre increase in present duty rates would raise a projected £858m before behavioural effects.

That sum could be hypothecated to a Clean Air Trust and invested in improving air quality and alleviating the effects of poor air quality. It might be used, for example, by including by taking traffic off our streets by developing better quality cycling infrastructure.

Hypothecation of the duty receipts (into a Clean Air Fund together with the compelling need to reduce diesel consumption) is likely to lead to greater public acceptance of the rate rise. This is a point made, amongst others, by the Environmental Audit Committee.

Strict hypothecation of tax receipts has been little used by UK Governments (although there are many examples of a rhetorical “earmarking” (see, for example, Gordon Brown’s “ring-fenced fund for the modernisation of roads and public transport” in his 1999 Pre Budget Statement). However, something of a precedent for the hypothecation of environmental taxes to deliver specified outcomes can be seen in the Landfill Communities Fund.

Taking this policy suggestion forward would be for a coalition of stakeholders. I would, of course, work with any such coalition.

Is Article 50 reversible? A primer on the Dublin case.

The so-called Dublin Case seeks to establish whether we can unilaterally – ie without the consent of the other 27 member states – withdraw our Article 50 notification.

What follows is a list of frequently asked questions, which I reserve the right to add to over time.

Why is the case important?

Once Theresa May has triggered Article 50 – likely to be in March of this year – we will leave the EU unless we change our mind about the wisdom of that course.

If we do change our mind, there is no doubt that, if the other 27 Member States agree, we could withdraw our Article 50 notification. But it is also possible that we have a unilateral right, which we could exercise without needing to seek their agreement. And it is obviously preferable that we have control over such a decision.

How far has the case progressed?

Because the question whether a member state can unilaterally reverse its Article 50 notification is one of European Union law, it can only be answered by the Court of Justice. And obtaining an answer involves two stages. First a national court needs to refer the question to the Court of Justice. And, second, the Court of Justice needs to answer it.

On or before 27 January we will issue proceedings in the High Court in Dublin. We are targeting a hearing in early April on the question whether it should make a reference to the Court of Justice.

If it does, we know from past experience that the Court of Justice can give a decision within three months of a question being referred to it.

Of course, these timescales will depend, in particular, on the attitude that the Irish courts takes towards the question of a reference. And the speed with which the Court of Justice is prepared to hear the case.

You can read the most recent press release here.

Is this an attempt to block Brexit?

The question seeks an answer to a legal question ‘can a state that has triggered Article 50 later unilaterally withdraw its notification?’

If the Court of Justice answers that question ‘yes’ it leaves the question ‘does Parliament want to withdraw its notification’ for our democractically elected Parliament.

So the case does not enter the political sphere – it leaves the political questions, rightly, for the politicians.

I should add that I did vote to Remain in the Referendum and, were we hypothetically to have another referendum tomorrow, I would vote the same way.

Who is funding the case?

The £70,000 anticipated cost of the proceedings before the Irish High Court was crowd-funded from small donations. There were almost 1,300 donations of £25 or less and over 1,700 donations of £50 or less.

It is possible there will need to be further monies raised to fund the Irish litigation. And if a reference is obtained to the Court of Justice in Luxembourg there will certainly need to be a further fundraising.

You can read what I said at the time of the first fundraising here.

It should be noted that the lawyers are acting at below market rates. And that I will publish as much of the material as I can. You can read our Letter to the Irish Advocate General here: ireland-letter-before-action

What is the Government’s stance on revocability?

The Government’s stance is a political one: it says that it does not intend to revoke Article 50 and David Davis claims not to know whether it could if it wanted to:

one of the virtues of the article 50 process is that it sets you on way. It is very difficult to see it being revoked. We do not intend to revoke it. It may not be revocable—I don’t know. That is the route we are going down. I expect, at least at that point, that people’s calculation will change from, “How can we make them change their minds?” to, “How can we best deal with this?”

However, it is at the very least highly surprising that it has not sought legal advice on the question (although it is possible that David Davis is not aware of that advice). And the fact that the Government does not say that Article 50 can’t be unilaterally revoked is telling.

It is also worth saying this. No one, acting rationally, chooses to make a momentous decision earlier than they need to and before they have the fullest possible evidential picture before them. A Government driven by the interests of the country should want to preserve its optionality until the last possible minute. Moreover, it is hard to understand why the United Kingdom Government might argue for an outcome that denuded itself of a unilateral right and left it instead at the mercy of the agreement of the other 27 member states.

If a reference is made to the Court of Justice, what will the Court say?

Of course, nobody knows.

If we did there would be no need for a reference. But the clear preponderance of legal opinion is that a member state could revoke a notification if it had a real change of mind.

There are many examples but:

  • here’s Donald Tusk (then President of the Council) expressing a view (at 24.55);
  • here’s Lord Kerr who is credited with having drafted Article 50;
  • here’s the former Director of the Council’s Legal Service;
  • here’s Sir David Edward, former Judge of the Court of Justice; and
  • here’s a good academic law treatment.

Of course, when the country is making what Theresa May has rightly described as “momentous” decisions we ought to know – not merely think we know – the legal framework within which those decisions are being made.

Why is the case being taken in Dublin?

Whoever makes the reference to the Court of Justice in Luxembourg the answer will be the same. The same court will hear the case and the United Kingdom will have the same opportunities to advance written and oral arguments.

That having been said, the case rests on alleged breaches of the Treaties by the other member states; those breaches can only be asserted in the courts of those other member states; and the Irish courts are the natural choice because Ireland shares an operating language with the UK, has a very similar legal system, and is profoundly affected by Brexit.

What is the position of the Irish court likely to be?

I have taken this case with the benefit of advice from specialist Senior Counsel – the Irish equivalent to our own Queen’s Counsel – and solicitors experienced in obtaining references to the Court of Justice. I am confident it is the right course for me to be taking.

However, I cannot disclose their advice. That having been said, the widely respected Fellow and Associate Professor at the School of Law, Trinity College Dublin Eoin O’Dell has written:

the balance of the argument is that a referral to the CJUE is likely if a case does indeed get off the ground.

What happens if Article 50 is found to be revocable?

In her Brexit speech of 17 January 2017 Theresa May promised:

the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.

Michel Barnier has said that the negotiations with the UK will need to be concluded within 18 months of the trigger date to allow time to ratify the deal. And David Davis agrees this is achieveable. So there will be ample time after the deal is concluded for Parliament to consider whether it wishes to accept the deal and act accordingly.

Parliament is supreme and sovereign. Should MPs or the House of Lords reject the deal they would have the (theoretical) so-called ‘cliff-edge’ option of leaving the EU without a deal. But they will also have the (viable) option of remaining in the EU. Or (more likely) putting the question back to the electorate in the form of a Referendum on the Final Deal.

A ‘Final Deal’ referendum has previously commended itself to a number of prominent Brexiters, including Dominic Cummings.

Whether one is likely to happen will be a function of the prevailing popular mood at the time Parliament is required to consider the question. As I explained here, it would be a mistake to assume that the mood today (which is broadly static since the referendum) remains static over time. We have not, after all, at the time of writing, even triggered Article 50 and many things can and will change.

Finally

You can see an interview with me discussing the case here.

Dublin Case – Press Release

BREXIT LITIGATION TO COMMENCE IN THE IRISH COURTS

A letter before action, the precursor step to proceedings in the Irish High Court, will tomorrow (13 January 2017) be issued to clarify EU citizenship rights in the event of the UK’s departure from the European Union.

The proceedings seek a referral to the Court of Justice of the EU of the question whether Article 50, once triggered, can unilaterally be revoked by the British government without requiring consent from all other 27 EU member states.  

If the CJEU were to rule that Article 50 is revocable, it would give the UK power to reject the outcome of Article 50 negotiations and remain in the EU should the Brexit negotiations being led by Brexit Secretary David Davis MP yield a deal that was not acceptable to the UK Parliament or British voters. 

Without this ruling, Britain will be forced to take whatever deal Mr Davis emerges with, or leave with no deal on a range of crucial economic and social issues, including access for British firms to the single market, and the rights of British citizens living, travelling or wishing to retire in Europe.

The Letter Before Action will be made available to recipients of this press release at 5.30pm. The proceedings consequential on that letter before action will be issued on or before 27 January. The claim will target a hearing date of the application for a reference as soon as possible after March.

The Letter Before Action will name Jolyon Maugham QC as the Claimant, however, Mr Maugham holds unconditional written confirmations from several elected United Kingdom politicians that they will act as Plaintiffs. Their names will be made available no later than 27 January.

There are continuing discussions with other elected representatives of whether they will issue parallel proceedings.

Specifically, the Plaintiffs will seek clarification of what rights as EU citizens will be lost (by triggering Article 50 will the UK automatically also leave the single market); whether it is certain that their rights as European citizens will be lost (can Article 50 unilaterally be revoked by the UK); and when they will lose their rights as European citizens (might Article 50 already have been triggered).

The £70,000 costs of the litigation were crowd-funded by Jolyon Maugham QC largely from small donations. There were almost 1,300 donations of £25 or less and over 1,700 donations of £50 or less.

Andrew Marr has said of the litigation: “This is the single biggest problem for May. Potentially… gives Commons its moment.”

Jolyon Maugham QC said: “The United Kingdom must retain sovereignty over the shape of its future relationship with the EU.  If we change our minds we must be able to withdraw the notice without needing the consent of the other 27 Member States. I want to establish clarity for British voters and deliver sovereignty to the British Parliament over the question of its future relationship with its biggest trading partner.”

[The Letter Before Action can be read here ireland-letter-before-action].

On Theresa May’s call for unity

You can watch Theresa May’s New Year’s message here. And what she says is:

“We all want to see a Britain that is stronger than it is today.

“We all want a country that is fairer so that everyone has the chance to succeed. We all want a nation that is safe and secure for our children and grandchildren. These ambitions unite us, so that we are no longer the 52% who voted leave and the 48% who voted remain, but one great union of people and nations with a proud history and a bright future. So when I sit around the negotiating table in Europe this year, it will be with that in mind – the knowledge that I am there to get the right deal not just for those who voted to leave, but for every single person in this country.”

Those who love our country will join her in wanting unity. And, back in November, I tweeted how this might be achieved (see the tweet-storm that begins here).

But trust and respect are no-one’s to command. They must be earned – and by actions. And Theresa May’s give no comfort to those who voted for, or now believe the country’s interests are better served by, our continuing membership of the EU.

Where, as here, a process is divisive it can only be healed with a better one. And that process must look like allowing our sovereign Parliament – for which we took back control – a meaningful role in negotiations. Yet Theresa May has fought tooth and nail to deny Parliament any say.

Her opposition to Gina Miller’s case is because she wishes to deny Parliament the ability to set negotiating priorities for the Government.

And if she loses she will have no option but to ask Parliament to enact legislation to authorise the triggering of Article 50. The Supreme Court will have said there is a constitutional role for Parliament to play. But she has already indicated that she will put a “bombproof” three line Bill before Parliament. She will be compelled to respect the form of the Supreme Court’s ruling but – even before it rules – she has said that she will ignore the substance of that constitutional role.

So, nothing but a formal role for Parliament when Article 50 is triggered. And what about when her negotiating team returns with the deal they strike with the r27? Surely Parliament will then have a say?

 

Here is what her spokesman said in October:

Downing Street has said it is “very likely” MPs will be able to vote on the final Brexit agreement reached between the UK and the European Union.

Number 10 confirmed the comment by a government lawyer in the High Court represented the “government’s view”.

But, when the Supreme Court hearing was over, she played a different tune.

So, no voice for Parliament before we trigger Article 50. And no voice for Parliament when we return. And misleading the Courts along the way.

This attempt to reserve to herself – and deny to our democratically elected Parliament – its proper role is difficult to swallow given that she has never been offered to the country as Prime Minister.

It is bizarre given that Parliament chose to enact an advisory rather than a binding referendum

And it is staggering in circumstances where the decision she seeks to reserve to herself – the shape of the deal – is a momentous one for which she has no mandate at all: not in the referendum result or in her Party’s Manifesto or in anything else.

And she has taken many other steps that appear almost calculated to drive the country apart rather than bring it together. Let me mention just two.

Why has she appointed three enthusiastic Brexiters to negotiate the shape of our deal with the EU?

Why will she not attempt to negotiate bespoke deals for Scotland and Ireland – respecting the wishes of their electorates?

For many of the 48%, the Referendum result is hard to take. For all who care about our country the divisions that it generated are a tragedy. But the ongoing actions of Theresa May’s Government, which drive the country apart rather than bringing it together, are simply inexplicable.

You can hear me discuss some of the issues I addressed in this post here.