Article 50 Challenge: the Government’s Defence

Following an application made to the High Court by Bindmans on behalf of the People’s Challenge which you can read here, the High Court has allowed publication of the Government’s Grounds for Resisting the Article 50 challenge.

You can read, following, those Grounds and the Skeleton prepared by Bindmans.

You can contribute to the costs of the People’s Challenge here.

 

Government’s Grounds for Resisting the Article 50 challenge

The People’s Challenge Skeleton

Article 50: Your right to know

Back in late July, I tweeted this Order of the High Court in the legal challenge to the Government’s position that no Act of Parliament is needed to trigger Article 50:

I think that is a pretty remarkable Order for Government to have procured in an action of enormous and legitimate public interest.

Today, John Halford at Bindmans LLP has applied to the High Court to amend the effects of that Order. I have reproduced, following, that application.

Should you want to fund the legal challenge you can do so here. And I have also, today, in a separate blog post, reproduced one of the Skeletons produced by those bringing the challenge.

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Article 50 challenge: the Skeleton

What follows is a copy of the Skeleton served by the ‘Interested Parties’ in the action before the High Court to establish whether an Act of Parliament is needed to trigger Article 50.

You can fund the action here. And you can read more about why I think democracy demands that Parliament decides here.

You will note that, in consequence of an order made by the High Court, certain sections of this Skeleton have been blacked out (or ‘redacted’ if you want to Talk Like a Lawyer). I am publishing, separately, a copy of the Interested Parties’ application to overturn that order of the High Court.

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A footnote

A political party is a machine for turning values into actions. In viable Opposition it’s powerful and in Government there is none better. But, like every machine, it can break beyond repair. If it does, it’s not merely useless. It actually gets in the way of achieving those values. Keep it and you can’t get a better machine. One that works.

Under the first past the post system there’s only room for one party on the Left. If that party is Labour there can be no other. That’s great if Labour is, or reasonably hopes to be, in Government. But, if you want to turn your values into actions, and Labour can’t, you need a machine that can. 

So the question you should be asking yourself is whether Labour is broken. Be honest: is there a realistic route back to Government for it? Is it still a powerful machine for turning values into actions? Or is it just a space where people go to talk to one another about what they want?

Those questions aren’t easy to answer.

For many, your attachment to the Labour Party goes beyond the rational. Your narrative of who you are, your relationships, your career and status, all are bound up with the Labour Party. But if you believe it is broken and you stay with it just the same you should be honest with yourself that it’s not about the values. You’re not achieving change in society, indeed, you might even be impeding it.

Leaving isn’t about letting ‘them’ win, or it being ‘our’ Party, or us being a ‘family’,  or whether we still have values in common. Those questions face inwards to the Party rather than outwards to the country. If your focus is on making the country a better place the only question is whether Labour can function as a powerful Opposition or is viable as a party of prospective Government. 

I’m not going to help you answer it. I’m not even going to tell you why I’ve answered it ‘no’. I just want to pose what I think is the right question.

Many of us are wondering, if we leave, where do we go?

At the moment, because there is Labour, there is no new machine.

But at the moment that doesn’t matter. 

Fewer than 1 in 50 of us is a member of a political party. But the votes of the other 49 count just the same. Indeed, they may even count for more. Don’t be taken for granted. Let them come to you – Labour and the Lib Dems and the Tories and the SNP. Let them try and persuade you that they can deliver what you want to see. On competence, on Brexit, on employment, on welfare, on immigration, on the economy, on defence, on our place in the world.

And when something new rises – and if Labour fails it will – join it. But by propping Labour up you make that impossible.

 

 

Sweetheart deals and meaningful accountability at HMRC

Buried in the EU Commission’s State Aid Press Release was this invitation to other Member States to share in Ireland’s prospective €13bn (plus interest) tax bonanza from Apple.

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Italy already has. Apple handed over €318m last year, it would seem. Spain, Austria and France have now signalled that they will look again at whether Apple has paid the right amount of tax. This is no surprise. Even without the Commission’s prompt, given how Apple’s operations are structured, if it owes hundreds of millions in Italy, you would expect it to owe equivalent sums to member states across the EU, including here.

But there’s been no public signal we will look again. This will – and should – give rise afresh to the question whether HMRC is acting in the public interest.

I ask this question now because later this month we will hear how HMRC proposes to answer it.

Back in February 2012, following widespread concerns that HMRC was doing sweetheart deals, the Public Accounts Committee noted:

Governance procedures have lacked the independence and transparency needed to provide sufficient assurance to Parliament. Tax settlements with large companies are inevitably complex and involve the exercise of judgement. Parliament needs assurance that these settlements are appropriate and good value for the taxpayer. The Committee welcomes the Department’s proposals to introduce an independent assessor, or assessors, to sit alongside Commissioners, who would carry out independent review of settlement proposals.

Because we treat taxpayer confidentiality as sacrosanct, Parliament lacks the ability to scrutinise whether HMRC is acting in the public interest.

What was then proposed was that we would appoint a “Tax Assurance Commissioner” who would act independently of HMRC. A People’s – to use the nomenclature du jour – Champion who would zealously guard over the public interest and fearlessly disclose naughtinesses at HMRC.

The appointee was Edward Troup, and here’s what he said in his Tax Assurance Commissioners’ report published just a couple of months ago.

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That’s all reassuring. Until you remember it was written five months after he was also given the job of Executive Chair and Permanent Secretary of HMRC. For the last few months he has, in effect, been scrutinising himself. And prior to that – at least it might be seen in this way – he spent several years as gamekeeper whilst auditioning for the job as Chief Poacher.

I’m not advancing an assertion that Edward has done those jobs otherwise than well. But when it comes to appearances? It’s quite fantastically unattractive.

In an age of enfeebled nation states and mighty corporates – remember “the tax treatment in Ireland enabled Apple to avoid taxation on almost all profits generated by sales of Apple products in the entire EU Single Market” – democracy demands meaningful scrutiny of these hugely valuable deals done behind locked doors.

I’ve addressed this problem before.

I wrote:

We can generate a dozen different layers of assurance. But if we populate them with individuals with a cookie cutter outlook the result will neither look like – nor represent – good scrutiny. The reality is that few people move into HMRC from the outside world – the traffic is almost all the other way – and the pool of Tax Commissioners is drawn almost exclusively from HMRC and the tax profession. I am aware of no-one who occupies a role of strategic importance in the process of approving deals whose background is such as to reassure the public that they are likely to provide independently minded challenge.

Let’s hope we end up with real scrutiny. Scrutiny that’s meaningful. That the public can have confidence in. That’s in everyone’s interests. Because if we can’t have confidence that big taxpayers are being made to pay the tax they owe, we’re bound to wonder whether we should bother.

Brexit: the Case for a Parliamentary Vote

[The following was commissioned by Counsel Magazine and is also published here.]

I’ll take some things as read.

You’ll know there’s a legal challenge to the Government’s position that it is for it and not Parliament to decide what action to take following the result of the Referendum. And that the challenge will be heard in the Divisional Court in October with a likely leapfrog appeal to the Supreme Court in December.

You’ll be aware that the challenge raises a question about the nature of the limits to the Royal Prerogative. Will triggering Article 50 denude the European Communities Act 1972 of content? Will it deprive UK nationals of their rights as an EU citizen? Is it Theresa May’s finger on the trigger? Or is must it be by Act of Parliament?

Published alongside this piece is another arguing that these are political questions – and that the courts should not get involved. I disagree. That there are political ramifications to the answers doesn’t change the nature of the questions from legal.

Few of us would baulk at the suggestion that the courts have an important role to play in regulating the relationship between the citizen and the Executive. Or in circumscribing when the Royal Prerogative can and cannot be used. Baulkers, if there are any, should read the words of Lord Oliver in Rayner (Mincing Lane) v DTI [1990] 2 AC 418, 462:

as a matter of the constitutional law of the United Kingdom… the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.

Indeed, publicly at least, even the Government says that the challenge raises a justiciable question. I can’t tell you what the Government’s pleaded position is because, remarkably, the Divisional Court has ordered that all documents produced by the Government be kept confidential.

But, as far as we are aware, the issue is not a live one. So let me turn to the question why the proper functioning of democracy requires that Parliament decide. There are at least four overlapping reasons.

First, Parliament is supreme. It chose to enact a referendum that doesn’t mandate our departure from the European Union. It chose one that the then Foreign Secretary recognised in Parliament as merely “advisory”. Mr Hammond went on to say that the Government would regard itself as bound by the result – but that political commitment does not alter the legal character of the European Union Referendum Act 2015 as advisory. To treat it as binding is to undermine the Supremacy of Parliament. It is to replace its intention, as enacted in the Referendum, with the intention of the Executive.

Second, the United Kingdom’s membership of the European Union gives us rights as individuals: to live abroad, healthcare cover on temporary travels, to accrue pension rights working in other Member States, and so on. Parliament has not acted to modify or abrogate those rights. It cannot be right that the Executive can. To say this is to do no more than articulate a specific instance of an important general rule about the limits of Prerogative Power. To ignore it is to put citizens at the mercy of the Government.

Third, the fact that it is advisory inevitably gives rise to the question: who does it advise?

We know Theresa May opposes a second vote on the outcome of our negotiations with our EU partners. We also know that others in the Conservative Party feel differently. Nicky Morgan, who as Education Secretary also publicly contemplated standing for the leadership, says that Parliament must have a say on the final deal. There are wide open spaces between these two positions. One will lead to us leaving the EU: Brexit, after all, means Brexit. The other might not. The difference between them reflects the personal approaches of those two politicians to the outcome of the Referendum. But the electorate has had no chance to speak on which position should prevail. The only choice was one made by Conservative MPs pursuing considerations which included (and I mean no criticism when I say this) parochial ones. To deny Parliament any say on the choice between these positions cannot be right.

Finally, alongside the question, ‘who did the referendum advise’ is the related one, ‘what did it advise’? The binary formulation put to the electorate “Should the United Kingdom remain a member of the European Union or leave the European Union?” skates over the many parallel universes offered up during the campaign: lower and not lower immigration, inside and not inside the single market, money spent and not spent on the NHS, retained and not retained regional investment and agricultural subsidies, and so on. These, and the trade-offs between them, are profoundly important questions. But they were not put in the Referendum; they figured in no election manifesto; no politician can claim a democratic mandate to answer them. I say they cannot be for an unelected Prime Minister.

Let me acknowledge this.

Although the argument I am putting forward is a procedural one – should Parliament or the Prime Minister make the decision about triggering Article 50 – I am interested in it because I believe the sovereignty of Parliament is substantively engaged. And I can only say that if I am prepared to contemplate that Parliament might take a different view to the Prime Minister.

But to contemplate this is not to urge Parliament to ignore the outcome of the Referendum. It is to urge Parliament to consider it in the context in which it arose. That context includes a number of assurances – of a points-based immigration system, of £350m extra to spend on the NHS, of VAT cuts on fuel – each of which has already been disavowed by the Prime Minister. Is the falsity of a representation relevant to the quality of the consent it induces? For legal readers of Counsel, there is only one answer. It includes the imprecision of the Referendum question and the competing accounts of Brexit that were given. It includes the fact that Parliament enacted only an advisory Referendum. It includes the enormous importance to our life as a nation of whether we are inside or outside the EU. And it includes the small margin of victory. Each of these factors must be weighed in the balance, alongside the democratic importance of adhering to the outcome of a hard-fought referendum campaign.

This weighing exercise is not one for an unelected Prime Minister. Parliament, with the roving democratic mandate given to its Members, must find a resolution. It should decide what to do with the result of the Referendum. And those who value democracy should hope that the Divisional, and then the Supreme Court, will direct that it does.

Other people’s money: the Apple story

It really does have it all, yesterday’s Apple story. But you don’t want to read 5,000 words and I don’t want to write them. So let me focus on the bits I think are interesting or important.

First, the political dimension.

Students of the history of the European Union will know that the European institutions have often acted to protect and enhance the functioning of the single market. As I’ve argued on these pages before, we can’t really have the level playing field on which a functioning single market depends with aggressive tax competition between member states. And the institutions obviously know that.

But the power to make tax law rests by and large with member states.

The inevitable result is a tension between those member states who would seek to tilt the playing field towards them through aggressive tax competition and the institutions who are interested in preserving and advancing the functioning of the single market by keeping it level.

I said a year ago that I believed the Commission had decided to use State Aid law to explore the limits of member states’ power to engage in ‘field tilting’ through the tax code. It had decided, to put it bluntly, to be a little more activist. Whether you think that’s a good thing rather depends on what you think about tax competition. And whether you think the single market’s important. But – and I bear in mind the old saw that you shouldn’t make up your mind until you’ve heard both sides of the argument – I have to say I’m surprised at the emergent consensus that the Commission’s decision amounts to overreaching.

Second, the importance of the Apple decision.

I think it’s really important. Indeed, I think it could be a game changer. If you’re contemplating setting up an unnatural structure for tax avoidance reasons, there’s a number of things you weigh in the balance. There are financial costs to setting up and maintaining that structure; there are reputational costs; the structure can be a green flag for investors attracted by the higher post-tax returns but it can also be a red flag for investors worried about the sustainability of higher post-tax returns that can be wiped out with a stroke of a legislator’s pen; and it can negatively affect your relationship with Government in the jurisdictions those structures are designed to denude of tax revenues.

What the Commission decision does is add a really important factor to that list.

The assumption you might once have made – that you will get those higher post-tax returns – you now can’t make. You might incur all the costs – all the negatives – and only discover years later that you didn’t get what you were banking on. The mere fact of the decision – irrespective of whether it is successfully appealed against – adds risk. And there will be many cases in which that will tilt the scales against unnatural avoidance.

Third, looked at in the round, the sort of practice imperiled by this decision is bad and so challenging it is good.

If you read the Irish press you’ll see the debate about whether to appeal against the decision couched in purely parochial terms: should we keep the windfall? or should we act to protect the advantages that come from tilting the playing field in our direction?

But if you look beyond those parochial concerns you’ll see that what Ireland has been doing is giving a subsidy to Apple’s shareholders with other people’s money – and keeping a touch for itself.

The subsidy to the shareholders comes in the form of higher post-tax returns than they would otherwise have enjoyed. As the Commission Press Release noted:

In fact, the tax treatment in Ireland enabled Apple to avoid taxation on almost all profits generated by sales of Apple products in the entire EU Single Market.

The ‘other people’s money’ is the taxes that would have been paid elsewhere in the single market – including in the UK – and in the US too if Ireland hadn’t issued the rulings the subject of the complaint.

The ‘touch for itself’ is Ireland’s tiny slice – from 1 per cent falling to 0.005 per cent – of tax on Apple’s European profits together with the economic activity in Ireland associated with diverting those European wide taxable profits to Ireland.

If you look at the question whether to appeal or keep the cash purely through an Irish lens I’m perfectly content to accept there are sensible arguments both ways. But this shouldn’t blind us to the reality that Ireland’s modest benefit are at the expense of its European partners. And that the real winner is Apple which ends up paying materially no tax at all on its European profits. Not in the US, and not in the EU either.

Finally, the EU dimension.

If you agree with the proposition that it’s a good thing for big multinational companies to pay tax on their profits then you should be interested in how this result came about.

It wasn’t Ireland, or Germany, or France, or the UK that delivered it. It was the European Commission. The reality is that the smaller you are, the more difficult it is for you to generate tax receipts. You’re less important a market. And you’re less able to absorb the risks attached to widening your tax base or increasing your tax rates. Or to face down threats of retaliation. On the other hand, the bigger the market you are, the greater the heft you have.

As I argued before the referendum, writing then about State Aid rules, leaving weakens our bargaining position on tax matters. It puts us on the road to tax haven UK. And if you want an NHS, or free education, or decent pensions, or a social safety net, that’s not a good thing.