Scottish Devolution and Brexit: my piece for The Times.

(The following was published in Saturday’s Times. I reproduce it here, several days late, for those without subscriptions.)

What an ugly aftermath. Leave or Remain, we cannot ignore the Referendum drove wedges into our communities. And hammered deeper ones still between them. Between old and young. Between the glittering cities and the boarded-up market towns. Between globalisation’s winners and its losers. And, most starkly, between the vocal demands of populous England and the stifled voices of Scotland and Northern Ireland.

On Monday, and for the three days following, the Supreme Court sitting in London will hear the Westminster Government’s Article 50 appeal. And, unlike at first instance, the Scottish Government will be heard through the Lord Advocate.

And this is what he will say.

Triggering Article 50 is like firing a bullet. It cannot be recalled to the chamber. Its destination is the United Kingdom’s departure from the European Union. And leaving the European Union will ineradicably reshape the devolution settlement. Certain devolved powers will be lost. Others will be enlarged. Fresh financial burdens will fall upon Scotland. The funding settlement will change. All of this, he will say, cannot be done by Theresa May. It must be authorised by the Westminster Parliament.

In a narrow legal sense, the First Minister, who speaks through the Lord Advocate, is in a weaker position than the individual respondents. She relies on the Sewell Convention, which allocates power between Westminster and Scotland. It goes on to provide that Westminster shall not legislate to change that allocation without the consent of the Scottish Government. But it contains a vital legal proviso: it only applies in normal times. In abnormal times, Westminster can do what it likes. And what times, you may ask, are more abnormal than these?

But to focus on that legal weakness is to ignore its political strength.

One cannot overstate Nicola Sturgeon’s frustration with the choice to pull the trigger on Article 50 before meaningful consultation. There’s been barely a postcard. The much feted Brexit hotline, I was told by one senior adviser to the Scottish Government, doesn’t actually work. If you dial the number no one picks up. And although the Lord Advocate’s written case runs to 58 pages of close legal argument you can take any one, crumple it up, wring it out and extract the same political essence. ‘Please,’ it says, ‘you must hear Scotland’s voice. Do not leave us unheard.’

Ignore that plea and the slight will be hard felt by the SNP’s political constituency – but not by it alone. It will be felt, too, by all who voted Remain, and by others in Scotland wrestling with the right balance between self-determination and a sense that the Union has served them well. The political scales may weigh, today, against a further referendum on Scottish independence. But there is no world in which Theresa May, ignoring the First Minister’s plea, does not add weight for a generation to the argument for independence.

There is a cynical reading of the Scottish Government’s case: it seeks to confront Theresa May with an ugly choice. Either she says, boldly and clearly, that she may legislate without regard to the Scottish Government. Or she gives to Scotland a right to Remain, whatever the impact on the rest of the United Kingdom. The former delivers a major boost to Scottish Nationalism. And the latter is impossible: it leaves Theresa May unable to fulfil her promise that Brexit means Brexit.

If that reading is right, and I do not think it is, it has not yet worked. The reply from David Davis’ lawyers is unedifying in tone – at one point it comes close to calling the Lord Advocate’s arguments not only wrong but stupid to boot – but it does manage to tiptoe around the central dilemma that the Lord Advocate poses. Whether that stance will survive Monday’s hearing remains to be seen. In oral argument the Supreme Court may well put the question squarely to the Government. And then we will see.

For the disinterested observer, of course, this is fascinating. I know from my hours spent wrestling with the ontological question ‘what will Brexit mean’ how the crisp, knowable drama of the law flows as fresh breeze. But, of course, few of us are disinterested. The stakes – for Scotland, for democracy, for our economic wellbeing, for our children – could hardly be higher.

And ultimately, it is not the law that will resolve these issues. Even if Theresa May loses – even if the Supreme Court says that only Parliament can alter the constitutional settlement between Scotland and the rest of the UK – she has signalled she will not respond in good faith. Her telegraphed solution – an immediate single clause bill might respect the form of the constitutional requirement for a Parliamentary mandate – but it will ignore the substance.

The right way forward is this.

There must be a proper consultation with the Scottish Government. There must be a genuine attempt to find solutions that respect the devolution settlement and that protect the wishes of a Scotland that voted overwhelmingly to Remain. The democratic mandate of the Westminster Parliament, too, must be harnessed and cherished. That Parliament must be allowed to shape the terms upon which we exit the European Union, if exit there is to be.

This is the only way that all voices can be heard. It is the only way for us together to overcome the failings of an extraordinarily divisive referendum – and an aftermath more damaging still. It carries risks for the victors – they may not get all of what they want. But the consequences of acting otherwise – a fractured nation, a shattered union, permanent social division – do not bear contemplation.

What those with power always want.

What follows is a guest post from John Halford of Bindmans LLP who acts for the People’s Challenge.


Suppose the Government is right about the legal arguments it makes in support of its appeal. Then, unless there is some significant, but completely unforeseen, political development between now and 31 March 2017, a simple letter will be sent giving notification of the UK’s  intention to leave the EU. 


The wording will not be elegant. No regret will be expressed.  And two years later, unless other EU states agree to a different outcome, UK citizens will lose their EU citizenship rights.  Parliament may, by then, have passed a Great Repeal Bill that mimics some of those rights in UK law,  but it cannot do so  comprehensively  or perfectly.  The rights that many UK nationals  depend on abroad to work, study, trade,  receive and provide services,  live with family members,  receive healthcare, retire and much besides will be gone in their current form. 


In the Divisional Court,  the Government argued that these concerns were exaggerated. Its third QC, Jason Coppel, submitted that the People’s Challenge had:

“seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law…. The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.” 


Our view is that this is simply wrong.  That is partly why the EU law specialists in our team, Gerry Facenna QC and David Gregory, produced the Annex to our Written Case cataloguing EU citizenship rights and explaining their  fundamental and irreplaceable nature. 


That document serves an even more important purpose, however, which is to show the Court  just how deep-rooted EU citizenship rights have become, thanks to the series of Acts of Parliament passed so they could grow in the soil of England,  Scotland, Wales and Northern Ireland and UK territories overseas, like Gibraltar. 


The consequences of the Government being right do not stop at a Brexit without Parliamentary control, oversight  or authority, however. To establish the Royal Prerogative can lawfully be used to invoke Article 50 means that the Government has to go much further than arguing it can be used for that purpose. Paragraph 16 of its written case makes this clear:

“… the true  position is that acts of the Government in the exercise of the prerogative can alter domestic law”. 


In other words, the law of the land is only as durable as the executive decides it should be.


The Government says this is not absolute: Parliament can always protect against the law being changed by “expressly or (possibly) by necessary implication” saying this cannot be done in an Act – see paragraph 64. But this  is hardly comforting. Very few Acts of Parliament expressly protect the rights they create from interference by the executive,  probably because few parliamentarians would have thought ‘express protection’ was necessary, given our constitutional arrangements. Protection that is ‘possibly by necessary implication’ is only as good as the legal arguments that can be presented in favour of it.


Worse still, many of the rights UK citizens enjoy are not contained in statutes at all,  but in the common law. These include the right to procedurally fair decision-making, access to lawyers, protection for confidential legal advice, access to the courts generally and in specific contexts such as individual liberty, protection from torture, privacy, freedom of religion, freedom of speech and assembly to protest and property rights. 


If the Government is right each and every one of these rights only survives as long as it choses not to reach an international agreement to do away with them.


Laid bare, the Government’s case is not that it should enjoy prerogative power to implement the result of the EU Referendum. It is that it should, and does, enjoy prerogative power to change any law unless  prohibited by an Act. That is a remarkable thing for a Government that includes MPs who once argued for cutting back, and strictly regulating, what was left of the Royal Prerogative so that citizens could have more confidence in Parliament’s role.


But maybe this should not be all that surprising. Those with power always want the same thing – more power. That is why Parliamentary democracy,  which balances  the exercise of power with checks and accountability, however imperfectly,  is something well worth fighting for in the Supreme Court next week.

The Northern Ireland Appellants’ Case

The Written Case to the Supreme Court for the Northern Ireland Applicants is – to the best of my knowledge – not available elsewhere. I have been given permission to publish it here.

agnew-and-others-uksc-written-case

There are two points, in particular, to note.

First, the Applicants are (to the best of my knowledge) the only parties gently to moot the possibility of a reference to the Court of Justice of the European Union on the question of the revocability of a notification under Article 50. Even occasional readers of mine will know that I believe that establishing the revocability of a notification to be the key to changing the political dynamics of the Brexit debate. So I regard this as a significant development.

The relevant extract reads as follows:

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Second, the Applicants are Crowd Funded (and look to be operating on a shoestring). It seems to me to be a brave and commendable stance to seek a better balance (at least as I see it – others do differ) between long term strategic goals (opening the door to a better or no Brexit) and short term goals (winning the case).

I have made a donation to the Crowd Justice bid – and I would encourage other readers (who are able) to do so too.

 

Internships

A kind donor who wishes to support the work I am doing has given me a sum of money. From it I hope to, amongst other things, engage a series of interns beginning in the New Year. I envisage month long internships, based with me in Devereux Chambers in Central London. The internships will carry London Living Wage, currently £9.75 per hour.

My thoughts are currently taking shape. They will be better shaped come the New Year. And better shaped still with the help of whoever I appoint. But, for the moment…

I am presently working, in particular, to ensure that Parliament (and through or via it the electorate) controls the process and outcomes of the United Kingdom’s Brexit. But I am also interested in ‘cause lawyering’ more generally. How can we use the law and lawyers to achieve positive change? And how do we engage and engage with non-lawyers in that exercise?

Intern One will help me write a brief for and work with third party technical support to set up a website to advance the project. S/he will help me identify what I should want in terms of architecture, functionality, database, merchant account services, and so on.

Intern Two will explore and report on existing cause-lawyering models and how to drive public engagement in cause lawyering.

An applicant for one of these internships should demonstrate experience of or an interest in the relevant field. Applications are particularly welcome from groups under-represented in the law. And from those who can show they’ve achieved what they’ve achieved by the strength of their own right arm.

Please apply by letter of no more than two pages and single page CV to me at Devereux Chambers. Apply, please, by 9 December 2016 stating your availability from the New Year. I envisage full time but applications for half time or more would also be welcome.

I will update this page. Please revisit it.

Make Tax Simple Again. Guest post

By Jeremy Cape @jeremydcape

Tax simplification is in the news.  It forms a central part of President-elect Donald Trump’s legislative programme.  The IEA recently produced a report – Taxation, Government Expenditure and Economic Growth – which includes an eye-catching proposal to abolish 20 taxes.  And the Chancellor is facing the usual calls to simplify the tax system in the Autumn Statement, 

There are few, whether they are tax experts or not,  who consider that the UK tax system works adequately.  But the expression “simplification” is loaded with ambiguity,  and implies that we can change to a utopian tax system, usually with fewer taxes, lower rates and easier compliance, without making hard, political choices.  Simplification should more sensibly be seen as a likely outcome of a more coherent tax system, and the debate should focus on how we can make our tax system more coherent, rather than more simple. 

Let me set out some of the different ways in which “simplification” is used by those who talk about it. 

1 Simplifying compliance

Many businesses spend considerable time and expense on tax compliance.  Simplifying compliance is driven by a desire to see shorter tax returns and more straightforward calculations, leaving businesses more time to focus on – well – doing business.  “Reducing tax compliance burdens on both businesses and individual taxpayers” is the stated objective of the Office of Tax Simplification.  Since its establishment in 2010 the government has implemented about 200 of its recommendations, such as abolition of reliefs (e.g. the 15p luncheon voucher), aligning legislative definitions and introducing easier compliance regimes for small businesses.  It’s estimated to have saved taxpayers £20M per year in compliance costs, and also resulted in the abolition of a small amount of tax legislation, but ultimately it’s all a little underwhelming.

Simplifying compliance is a laudable aim, but reducing the compliance burden by, say, an hour a year per business is unlikely to be the main thing taxpayers are seeking from simplification.

2 Shortening tax legislation

There is a popular view that the increasing length of the UK tax legislation is a cause of it becoming more complex.  The increased length is in fact a function of an attempt to simplify legislation through the Tax Law Rewrite Project.  But most tax practitioners generally find the re-written Acts more user-friendly than the Acts they replaced and prefer the longer form. 

This is not to say that UK tax legislation shouldn’t be shortened.  The recent diverted profits tax (DPT) takes up twenty pages of Tolleys and, even given that it deals with some fairly complex concepts, is (in my view) longer than it needed to be.  

3 Simplifying concepts in tax legislation

Let’s turn to the DPT.  The stated policy objective of the tax was “to counteract contrived arrangements used by large groups (typically multinational enterprises) that result in the erosion of the UK tax base.”  It consists of two rules.  The first rule has seven conditions.  The existence of some of the conditions is relatively easy to determine, such as whether a company is UK resident.  Others are not.  Some of the concepts are borderline-impossible to understand.

One question is whether the policy objective behind the diverted profits tax could have been achieved without pages of fiddly legislation.  Most practitioners think it could have been which would allow them, in turn, to advise taxpayers with more clarity whether it applied or not.  (The diverted profits tax also provides a good example of the pitfalls of bad legislation because, if the intention was to make Google pay considerably more UK corporation tax, it appears to have failed.  It does not follow, however, that complex legislation always creates loopholes, and it is unquestionably true that loopholes have been closed by complex legislation.)

So why not give a smart civil servant a month to bring it down to four pages?  Well, it probably couldn’t be done without some consequences.  The likelihood is that it would impact more companies and arrangements; at the very least, there would be more inherent ambiguity (and more HMRC and judicial discretion) regarding its application.  But, again, the question of whether the DPT, or any other tax, could be drafted in a more simple manner for the practitioners who have to read it, seems to me to be a sideshow: the general public and business don’t ultimately care all that much, because they don’t themselves generally look at legislation.

4 Simplifying or abolishing reliefs and exemptions

Waiting for Tax has previously written about this.  If Philip Hammond were to announce the abolition of CGT private residence relief, pension tax relief, ISAs, VCT and EIS, Gift Aid, group relief, the substantial shareholding exemption, etc. then this would immediately simplify the tax system.  But, again, there would be consequences for taxpayers (many of whom would have to pay more tax) and the government (who would need to respond to the change in behaviours, such as the impact on pension savings and investment in start-ups, in the short time before it got wiped out in an election).

One example of a simplification measure (not strictly the abolition of a relief) was the infamous “pasty tax”.  The Treasury, correctly identifying that this had been an area of litigation, decided to “apply VAT at the standard rate to all food which is at a temperature above the ambient air temperature at the time that it is provided to the customer, with the exception of freshly baked bread …[to] ensure that all hot takeaway food is taxed consistently”.  This would have added around 20p to the price of a £1 pasty.  The subsequent furore caused Osborne to abandon his plans.  Imagine the reaction if homeowners were told that they would now have to pay CGT on the increase in the value of their primary residences in the name of simplification.

Abolishing reliefs ticks most boxes of what simplicity might be, but it is not simple to achieve.  And those advocating simplification of reliefs tend to support the abolition only of those reliefs that do not affect them or their families, friends or commercial interests.  Funny that.

5 Abolishing taxes

In many ways, this is the opposite of 4.  For some, the concept of tax simplification is part of a broader policy to reduce the role of the state.  Legislation will be shorter, concepts will be simpler, reliefs will be fewer, but the state will necessarily receive fewer revenues and spend much less.  Take the IEA’s recent paper, for example.  This calls for the abolition of, inter alia, corporation tax, capital gains tax, council tax, SDLT, stamp duty and alcohol and tobacco duties.  Even if you buy the IEA’s argument that this will result in increased growth in the UK, it results in a very different UK (broadly, much better if you’re rich).  Although the IEA’s modelling suggests that the poorest decile would enjoy tax cuts worth 26% of their gross income, with the richest decile enjoying a tax cut of only 13%, a starker comparison is that someone earning £300,000, currently taking home £170,000 after tax, would take home £256,500 after simplification (£86,500 more).  Someone earning £30,000 and taking home £23,500 now would instead take home approximately £27,000 (£2,500 more).

It’s hard to see the IEA’s approach working in the real UK, or to imagine even 52% of people wanting it, even though I admire their boldness and their attempt to devise a coherent system.  My problem with their approach is that their use of “simplification” implies a non-existent neutrality to appeal to those whose desire for simplification does not extend to such radical reform of tax and public expenditure.

I’ve tried to set out the different ways in which people think about “simplification”.  The more I think about it, it’s not really about tax simplification.  None of us will be happy in the long term solely by reducing red tape for businesses or shortening the tax code or making it easier for tax practitioners to understand tax law.  These may be desirable outcomes but they are symptoms of a broken tax system, and not a sole cause of it.  The main cause is the lack of coherence in our tax system and its design, which is partly a function of history, but is exacerbated by having effectively two Budgets every year, with the focus on the short, rather than medium or long term.  

Making the tax system more coherent will not be – for want of a better word – simple.  It requires a huge amount of political capital that the Brexit-beleaguered government does not have.  For now, we can but hope that Chancellor Hammond will avoid gimmicks (such as hints on the future rate of corporation tax or VAT) and indicate that he will take a broader, more considered view of the UK tax system as a whole.

His aim should be that one day a Chancellor can stand up on Budget Day and announce no changes to the tax code because – thank you very much – it is working perfectly well as it is.  Simples.

How Scotland Takes Back Control. My piece for the Telegraph 

Some editions of today’s Telegraph quote extensively from my piece on their front page.

But, so that the full text can be read, I reproduce my piece following.

***

In just over a fortnight the Supreme Court will hear the most important legal case our generation will ever know. The Scottish Government will be there, represented by the Lord Advocate, Sir James Wolffe.

But what will he say?

The question at the heart of the case is whether Theresa May can remove rights granted by Parliament without first obtaining Parliament’s permission. That – or so the argument runs – is the effect of triggering Article 50, the mechanism by which we start divorce negotiations with our EU partners. Once the Article 50 process is started, rights will be lost without Parliament’s consent. Rights that cannot be wrenched back.

Although the legal argument is couched in terms of individual rights, it has particular resonances for Scotland – and Wales too which also plans to intervene. It may well be wrong to, as the First Minister put it:

bypass the Scottish parliament and take steps that will involve fundamental changes to the devolution settlement with no proper scrutiny here in Scotland.

But that is precisely what Theresa May intends to do.

Unless.

You see, there is one wrinkle in the argument.

When the case came before the High Court in London, it suited everyone to pretend that triggering Article 50 would have the inevitable consequence that we leave the EU. That the bullet, once fired, could not be called back to the chamber. It suited the Pursuers, because it made their legal arguments easier. And it suited the Westminster Government because it removed any legal impediment to them pursuing exactly whatever course they chose to.

The Pursuers pretended. The Westminster Government pretended. There was a cosy consensus. But should the Scottish Government pretend?

We don’t know if an Article 50 notification can be withdraw. What we do know is that a lot of very well placed people believe it can be. Lord Kerr of Kinlochard, who drafted it, thinks so. So does Donald Tusk, the President of the EU Council. And so does Sir David Edward, former judge of the Court of Justice of the EU. But the only view that matters is that of the Court of Justice itself.

Nicola Sturgeon can explode that cosy consensus. She could instruct the Lord Advocate to seek a reference to the Luxembourg court so that it can answer the question. And she should.

A decision that a notification can be revoked enables Scotland to wrest back control of its future.

If triggering Article 50 doesn’t commit us to leaving the EU, the SNP can hold out a realistic threat, alongside the other opposition parties, of voting down any deal negotiated by Theresa May that ignores Scotland’s interests. Voting down the deal – and here’s the important bit – would mean withdrawing the Article 50 notification and Remaining. ‘Deliver for Scotland what is right,’ Nicola Sturgeon could say, ‘or our MPs will vote against Leaving.’

And although that vote would almost fall in the House of Commons today, who knows how Brexit will look in two years’ time? It is possible that the “sunlit uplands” promised by Boris Johnson will hove into view – but it may also be that they dissolve to mere mirage.

If in two years’ time the evidence shows that prosperity has deserted the United Kingdom in anticipation of a Hard Brexit, MPs will vote against Brexit. They will vote to Remain because that is what their constituents will demand. And the Brexiteers fear that.

A decision by the Court of Justice that Article 50 can be revoked leaves the door ajar to the whole United Kingdom remaining. But it also gives Nicola Sturgeon a real bargaining chip in her negotiations with Westminster. Deliver what is right for Scotland, protect our interests, or we will vote to keep the whole United Kingdom in the EU.

Nicola Sturgeon has accused Theresa May’s Government of “disrespecting the whole devolution settlement” by taking a decision of “this magnitude and with this degree of impact on our devolved responsibilities… without the Scottish parliament being consulted.”

And she is right to demand proper respect for the will of the Scottish people.

And this is how she gets it.

Labour and Brexit. Against having your cake. Against eating it too.

Writing yesterday, I observed that Labour’s pro-Brexit positioning was unfathomably removed from both:

its 2015 Voters (65% or 63% of whom voted Remain) and its MPs (218 for Remain versus only 10 for Leave) in light of polling showing limited support for a Brexit without strings.

The same point is made afresh by recent polling from Labour List which demonstrates overwhelming Labour support for a possible second referendum

My post yesterday speculated that Labour’s present pro-Brexit positioning was likely to be borne of two defensive factors: first, a need to keep the red tops onside and, second, perceptions of the effects of keeping the door ajar on Labour’s vote share in 2020. 

Of the first I said:

Faced with a vigorous and scornful media [Labour] seems determined to repeat its mistakes from the last Parliament. Then MPs bowed their heads regretfully to ‘overspending’ allegations and the need for austerity. Now they genuflect to demands for a Brexit that ignores the limitations of the mandate.

They do so because they understand it to be what the electorate wants. They do so because they are frit. But they ignore that they will take the blame when things go wrong. And they ignore that no one wants a Party that follows where others lead.

Of the second, to demonstrate the source of the concerns, I attached some charts (reattached below) which illustrated that a 15% loss of Labour votes in Leave voting constituencies in England and Wales would (all other things being equal) involve a loss of 44 constituencies. These would only be partially compensated for by the mirror image of a 15% gain of Labour votes in Remain voting constituencies in England and Wales delivering an extra 18 constituencies.

The additional point I want to make today is this. 

Few, if anyone, is suggesting voting against triggering Article 50 or somehow otherwise blocking Brexit. What is being suggested is that Labour should in the A50 Bill leave the door ajar to a second referendum.

And, critically, the relevant time to judge the popularity of that course is not today. We don’t have a general election today. It will be in 2020, when we do. 

By 2020, MPs will already have voted on the article 50 deal. That vote will probably have taken place in early 2019. If the evidence in 2019 is that the economy is performing well then, of course, Labour will, and rightly, support the Government’s Brexit deal. There will be no second referendum. And MPs in Leave voting constituencies will not face a Brexit penalty at the polls.

If, on the other hand, the evidence in 2019 is that the economy has tanked, inflation is rising, living standards have slumped, and the deficit has ballooned MPs would be applauded for having in the Article 50 Act enabled a second referendum. Far from being punished at the polls, Labour will benefit in 2020 from being the Party that delivered a way out of the mess.

So the very best that can be said about the argument that Labour shouldn’t support a  second referendum because voters in Leave constituencies won’t like it is this. It’s an answer to the wrong question: ‘what is popular today?’

The worst thing that can be said, the really unfathomable thing about Labour’s decision to rule out a second referendum now, is this: it has the option. It can wait and see. It can have its cake and eat it too. 

But instead it is doing neither.


Illustrative Charts

The following two charts show Labour seats in England and Wales by margin of victory, support for Brexit and (by colour, Runner Up).

The first shows all Labour seats.
The second highlights those Brexit supporting seats where Labour’s margin of victory was less than 15% (they total 44: 39 Conservative, 3 UKIP, 1 Lib Dem and 1 Plaid Cymru).

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The following two charts show seats in England and Wales where Labour was Runner Up by margin of victory, support for Brexit and (by colour, Winner).
The first shows all seats where Labour was Runner Up.

The second highlights those Remain supporting seats where the winner’s margin over Labour was less than 15% (they total 18: 14 Conservative, 2 Lib Dem, 1 Plaid Cymru and 1 Green).

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