A culture lives in its language or dies in a museum

My speech at the Rali dros enw uniaith Gymraeg i’r Senedd [Rally for a Welsh-only name for the Senedd]

My good friends at Plaid Cymru have sent me some briefing notes about the important legal issues raised by the Senedd and Elections (Wales) Bill. And I am grateful to them. And they suggest I speak to you of those issues.

But I although I am a lawyer, you have invited me today not for that reason but because I am a New Zealander who has spoken of how policy changes in NZ to promote the use of Te Reo Maori, the Maori language, sparked a resurgence in Maori culture in New Zealand.

New Zealanders can see how the Maori people carry their cultural inheritance with pride. The world can see how New Zealanders carry Maori culture at the forefront of how we, as New Zealanders, project ourselves

I shall not linger too long on the rugby. Perhaps wisely. But you see this clearly when you compare the haka of the 1970s with that of today. Look at the cultural pride the nation shares. All of NZ benefits. And I want, and everyone who loves Wales should want, all of Wales to benefit from resurgent Diwylliant Cymru. [Welsh culture]

What I say next I say with genuine humility – because I am not Welsh. But I cannot understand the objection to calling the Senedd the Senedd. I gather the argument is that some people living in Wales will not understand what the word means. If that is so that is – and being an outsider obliges you to speak with humility but also allows you to speak with clarity – that is a terrible state of affairs: laith Cymru yw diwylliant y genedl. [The language of Wales is the culture of the nation.] If you do not know what is the Senedd then for Godssake learn! And calling it the Senedd is an opportunity to teach.

It is often said that if you are of privilege equality feels like oppression. It is less often said that if you are oppressed equality can come to feel like privilege. Having a title in English for those who do not care enough to learn is not good enough. If you rightly love your culture you should not bear it.

A culture resides in its language or it dies in a museum.

Can I finish with some words from John Robert Jones. And I ask for your forgiveness for not speaking them to you in Welsh:

“Leaving your country is a common and sometimes sad experience. But I know of something which is much more heart rending, for you could always return to your native land. And that is, not that you are leaving your country, but that your country is leaving you, being finally drawn away into the hands of another people, another culture.”

Ffrindiau, gwn na fyddwch byth yn caniatáu i hyn ddigwydd. [My friends, I know you will never allow this to happen].

How to get Brexit done by 31 October

The Prime Minister has made his “take it or leave it” offer to the EU – but it is far from clear that either the EU or Parliament will find it palatable. Parliament has said that unless it approves the Withdrawal Agreement the PM must ask for an extension – but the PM has point blank refused.

Behind the scenes, the PM’s office is briefing journalists about ever more cunning plans to avoid the Benn Act, litigants are lining up in Court to compel compliance with it, and Parliamentarians present and past are worrying about whether one of those cunning plans might just work.

We all know the damage this is doing – to businesses forced to delay investment decisions, to judges worried about attacks on the judiciary, to trust in democracy, and to broader civil society – and the longer it continues the greater the damage.

However, there is a solution. And it is one MPs can readily implement after (once again) seizing control of the business of the House.

A simple Act. An Act to ensure that the final decision about whether to ‘No Deal’ rests with Parliament.

If, prior to the day before “exit day”, Parliament had neither (a) ratified a Withdrawal Agreement nor (b) adopted a motion to leave without a deal, Article 50 would be revoked by letter sent by the Speaker of the House of Commons.

Such an Act would be democratic – it would give to Parliament, elected from 46 million of us, rather than a Prime Minister elected from 160,000, the final say on what to do. By changing the default it would give effect to the numerous occasions on which our supreme Parliament has ruled out No Deal. It would put an end to cunning plans to thwart the intention of Parliament as expressed in the Benn Act. It would incentivise both the Prime Minister and the EU to negotiate to avoid the risks each fears. And it would remove any incentive the Prime Minister may have further to prorogue Parliament.

And it would get Brexit done – one way or another – by 31 October. For there is much else to do.

***

Note: A rather lengthy version of such a Bill, drafted by Helen Mountfield QC, can be seen here. It would not be difficult to draft a shorter version occupying only a single page.

The flaw in the Benn Act

There is a flaw in the European Union (Withdrawal) (No.2) Act 2019 (the “Benn Act“) and, if MPs want to avoid us leaving without a deal, they may need to take counter-measures.

The flaw arises in circumstances where the Prime Minister brings a Withdrawal Agreement (“WA”) to Parliament for approval. And it arises from the mismatch between the provisions of the Benn Act and those of the European Union (Withdrawal) Act 2018 (the “2018 Act“).

What follows is a slightly simplified description of the flaw, to aid readability.

To avoid the PM having to request an extension from the EU under section 1 of the Benn Act the Commons must approve the WA. If they do, on or prior to 19 October, the obligation in the Benn Act to request an extension falls away.

However, the provisions of the 2018 Act specify further preconditions, beyond approval by the Commons of the WA, before the WA can be ratified and No Deal avoided.

Those preconditions are set out in section 13(1) of the 2018 Act and include the passing of a further Act implementing the Withdrawal Agreement (the “Further Obligations”).

Summing up, if the Commons approves the WA but these Further Obligations are not satisfied before 31 October 2019, then two consequences follow. First, the Benn Act will not apply to require the PM to request an extension from the EU. And, second, we will leave with No Deal.

So, imagine the PM says privately to the ERG ‘support my WA and I will deliver No Deal.’ In those circumstances, with the help of some Labour MPs, the Commons might approve even Theresa May’s WA.

The PM would thus have escaped the obligation in the Benn Act to request an extension and could deliver No Deal.

He could, for example, again suspend Parliament (subject of course to the outcome of this week’s Supreme Court hearing). There is some evidence (see below) that he plans to do this. And we would leave without a deal.

Indeed, even without again suspending Parliament, he may well be able to deliver No Deal simply by refusing to put before the Commons an Act implementing the Withdrawal Agreement. In such circumstances the Further Obligations would not be satisfied in advance of 31 October 2019 and we would leave with No Deal.

I had been discussing the above privately with trusted MPs and friends. However, because there is circumstantial evidence, set out below, that the PM’s office is aware of this flaw, I am putting it into the public domain in the hope that MPs consider what counter-measures they may wish to take.

The best way to bypass the flaw is for MPs to refuse to approve any motion for a WA on or before 19 October. Those who want the Withdrawal Agreement should refuse on the basis that, by voting for it, they may well be delivering No Deal.

In those circumstances, I believe the Courts, likely in consequence of proceedings afoot in Scotland, will enforce the Benn Act and require the PM to request an extension.

However, nothing is certain. There may be other flaws I have failed to spot. And the EU may refuse an extension. The situation now, as has always been the case, is that the only absolutely certain way to avoid No Deal is for Parliament to legislate to change the default if no agreement is reached from No Deal to revoke.

***

The circumstantial evidence is:

A story, reported in today’s Mail on Sunday, that a further suspension of Parliament is planned.

Reports that the Prime Minister is meeting members of the ERG privately.

Widely reported briefings that the Prime Minister plans to put a re-heated version of Theresa May’s Withdrawal Agreement before Parliament.

Inclusive Ownership Funds – is the FT’s analysis correct?

On Monday, as we moved one step closer to a General Election, the FT launched a brutal attack on a flagship Labour policy.  Labour, in one of “the biggest state raids on the private sector to take place in a Western democracy”, will “confiscate” shares. Turning the rhetorical dial up to 11 it said “Labour would expropriate £300bn.”

Labour’s Inclusive Ownership Funds (IOF) policy requires a large company – defined as one with 250 employees or more – to transfer 1% of its shares each year into a fund on trust for its workforce, up to a maximum of 10%. The transfers will be effected either by a gradual dilution of the original shareholders – via annual scrip dividends – or by purchasing shares on the open market for the benefit of the IOF.

The case for IOFs is a holistic one. In a closely held briefing document – even a promise to write a supportive piece did not precipitate the delivery of a copy from the Shadow Treasury Team but I have my sources – Labour points to the declining labour share of national income, the concentration in ever fewer hands of financial assets, and the scope for decision making with a longer timescale that can follow from enhanced employee share ownership.

But what about the money? The aggregate value that would come to be held in IOFs might not much matter. It’s a figure that follows from the scope of the policy – something Labour’s rather hazy on. This might not surprise you because questions about geographical reach get very tricky very quickly but on any view it’s very significant.

A better way of looking at the policy might be to analyse its consequences for affected investors. The effect of diluting shareholders via scrip dividends would be a gradual reduction in their dividends of 10% over the course of a decade. Not ideal, perhaps, but not catastrophic either. And this diminution might be more than compensated – Labour gives some evidence for this effect – by the productivity gains resulting from a share-owning workforce.

A sharper criticism of the proposals – the foundation for the vigorous language of “expropriation” and “confiscation” – is the share of profits going to the Government. Under Labour’s plans each worker would receive an annual payment from her IOF capped at £500 with dividends over that cap going to the Government.  Clifford Chance, authors of the report on which the FT story is based, say this means £9.4bn – or 88% of total projected annual dividends paid to IOFs – would find their way to the State. Labour, on the other hand, gives an equivalent figure of £1.1bn.

The resolution of this divergence depends, again, on geographical scope. Clifford Chance says that global firms will pay dividends on global profits with the small number of UK employees quickly capping out at £500 and vast surpluses to the Government. There are some signs Labour might confine the policy to UK profits but this is still a forceful criticism.

Policy making in the tax sphere is notoriously difficult for any Opposition; it requires complex modelling of data and access to closely held and expensive tax expertise. And the problem is especially stark for the present Labour Party which has not sought or maintained good relations with the tax drones inclined to help on this stuff. What Labour has done is recognise its difficulty with a promise to consult to ensure that the implementing legislation is “robust and widely supported”.

What we’re left with is a policy of uncertain application, which will be hugely difficult to implement, and will have a number of distortive effects (go long outsourcers who will help keep your headcount below the magic number). But it will also deliver an important advance in how our economy is structured, a form of widely held employee share ownership.

Ultimately the question we, as voters face in a General Election might just be whether we’re ready to commit to an inclusive capitalism – or are just embarked on what Larry Summers described as a “rhetorical embrace”.

Note: I was an adviser on tax policy to Labour under Ed Miliband – and have (although not recently or in connection with this policy) advised the present Shadow Treasury Team.

Is No Deal unlawful?

The updated written pleadings in the case brought by over seventy Parliamentarians to prevent Boris Johnson treating Parliament as an inconvenience he can suspend can be read here.

One of our lines of argument is that ‘No Deal’ is unlawful as a matter of domestic law and, in extremis, a court would order Boris Johnson to revoke Article 50.

That is a rather striking contention and so I thought it might be helpful to set out, in somewhat greater detail, how the argument runs.

1. As a matter of UK constitutional law, Miller in the UKSC (correctly) determined that
(i) EU law could be regarded as a direct source of individuals’ rights
(ii) the Crown has no inherent power to diminish or attentuate or remove the substantive rights of individuals
(iii) if individuals’ EU law derived rights are to be removed or altered or diminished by Crown action (or omission) this can only lawfully and constitutionally be done if the Crown was expressly authorised/empowered by Parliament by enacting a statute to this effect.
2. The majority in Miller proceeded on the assumption (that being the joint position of the parties) that as a matter of EU law the act of notification by a Member State under Article 50(2) TEU of its intention to withdraw was an irrevocable act and therefore could be treated for the purposes of UK law as the commencement of a process which would inevitably lead to the loss of individuals’ EU law rights. It was on that basis that the majority concluded that a statute was necessary as a matter of UK law to authorise notification as a matter of EU law. As it turns our, they were wrong. Lord Carnwath in the UKSC had the better analysis on this point, namely, that there was nothing inevitable about the diminution of rights following from notification since there would be up to 2 years of negotiations before one actually knew what the specific consequences of withdrawal would be for individuals’ EU law rights.
3. Wightman in the CJEU confirmed Lord Carnwath’s analysis in Miller to be the more soundly based in its holding that there was nothing irrevocable or inevitable in the effect on individuals’ rights about the Article 50 notification, which could be unilaterally withdrawn at any time while the UK remained a member State.
4. Applying the CJEU Wightman analysis to the proper interpretation of the EU (Notification of Withdrawal) Act 2017 that Act can now be seen as doing nothing more than authorising the Crown to open negotiations for withdrawal. What it did not authorise was the Crown to diminish or take away individuals EU law rights. No blank cheque – indeed no cheque of any sort – was given by Parliament to the Government.
5. The Miller majority analysis remains good however in confirming that as a matter of UK constitutional law the Crown has no power – whether by its action or inaction – to deprive individuals of their EU law derived rights, other than with express statutory authorisation to do so.
6. If the UK were to leave the EU without any withdrawal agreement having been concluded this would involve a massive alteration in the EU law derived rights of individuals. What this means is that as a matter of UK constitutional law the Government cannot allow for a no deal Brexit without explicit statutory authorisation to this express effect. As matters stand no such statutory authorisation exists.
7. What this means is that if Government policy is indeed one which encompasses a No Deal Brexit, it cannot use the power of suspension of Parliament to further that policy. It would in fact defeat it as if Parliament is prorogued the relevant and necessary No Deal authorisation legislation will not be able to be passed in time for Exit Day.
8. In those circumstances – were the power of suspension to be used – the only relevant active constitutional actor would be the courts which, in order to preserve individuals’ EU law derived rights from the inevitable substantial diminution and/removal which would necessarily result from the Crown’s action or inaction in failing or refusing to conclude a withdrawal agreement with the EU would have to pronounce a mandatory order ordaining the Government to exercise the UK’s power to revoke Article 50.
9. In a representative constitutional democracy however it is far better – far more constitutionally appropriate, for the legislature rather than the courts to make any such decision to keep the Government within lawful and constitutional bounds.
10. Standing back, not only is it clearly the intention of Parliament that it be sitting to determine what options it will authorise the Government to pursue in the run up to Exit Day, but the whole dynamics of the constitution require that the suspension power not be used before there has been clear statutory authority given by Parliament to Government about how to proceed in the face of Exit day – whether that be to seek a further extension of Exit Day, revoke Article 50 altogether or expressly allow for a No Deal exit.

Why ‘good’ Tories are supporting Boris Johnson

I met last night with a senior Conservative MP in a very small gathering (mostly of Tory supporters) under Chatham House rules. It was – even by those standards – a frank and honest discussion. X comes from a Conservative tradition I’ve always had regard for – although it is not my tradition – and I’ve been alarmed to see Tories of that tradition supporting Boris Johnson (“BJ”). In the circumstances I was keen to understand how X had arrived at that destination.

I tweeted a summary of X’s view last night but want to address (1) X’s logic in more detail and (2) some of the responses to my tweet.

The headline was that X believed BJ was the best way to counteract the threat from the Brexit Party. Although X was a Remainer – and believed BJ could pivot to supporting a second referendum – X was also prepared to contemplate what I understood to be a managed No Deal as an alternative to the Corbyn Government that X saw as being the natural consequence of not meeting the Farage threat.

Most of my tribe will likely have our own views about the damage a “managed No Deal” will do. And they are likely to differ sharply from the near equanimity of X. I certainly said so to X. But what I wanted to focus on is what lies on the other side of the balance for X: the fear of a Corbyn government.

X’s concern – and I reiterate that the dinner was unusually frank and honest – was that Corbyn’s would be no ‘normal’ Labour Government. And because of that, keeping Corbyn out had an importance of a greater order.

X elaborated little on why X believed that keeping Corbyn out was so important but I understand, and have some sympathy with, X’s basic point. I worked as a tax advisor to Ed Miliband’s Labour Party and have also advised McDonnell but I have no ambitions to be part of a Labour Government. This means I have no need to be otherwise than frank in giving some colour to what I understand to be X’s concerns. (I should say that what follows is what many of my tribe, including some Labour MPs, say privately about a Jeremy Corbyn Government.)

There is a narrative on some parts of the Left that sees, or finds it useful to portray, a putative Corbyn Government as coming from a moderate European social democratic tradition. But I think, and understood X to think, that narrative is wrong, and sometimes disingenuous.

What is my evidence for saying that? Here are the headlines.

In unguarded moments Labour talks about having the desire to effect an “irreversible” change in the country. That is uncomfortable language to use in a democracy. But more than that: we don’t know what that irreversible change looks like.

Most other countries have proper constitutions but the only higher law to which the UK is presently subject comes from the EU. It offers some constraints on some actions that step outside our collective European norms. Those constraints are limited by the fact that the EU is only able to constrain us where we have permitted it to do so but they do operate with greater intensity in the field of economic policy.

Labour’s leadership is anxious that we should leave the EU. And I find it hard to rationalise this otherwise than by reference to the fact that it wants to jettison the constraints that the EU represents; it wants unlimited power to remake the country. Labour says we need to leave the EU to jettison rules on state aid. But there is nothing in Labour’s 2017 manifesto that EU law would prohibit.

What specific actions does Labour believe EU law would constrain? What more does Labour have planned that it will not come clean about? Before we usher in “irreversible” change, are we not entitled to know what it looks like?

There are, of course, compelling counter-narratives to to the narrative that a Corbyn Government would have unconstrained power to effect irreversible change to unstated ends. Perhaps the most powerful is that he would be limited by the realities of Parliament democracy, a pluralist Labour Party, and the lack of a manifesto mandate. And I suspect X’s analysis, ultimately, understates the limitations imposed by these practical constraints. But I wouldn’t pretend to be completely unsympathetic to it.

More generally X also believed that it was possible to ignore BJ’s work as a paid rhetorician and discover in him the more socially liberal Tory who was London mayor. You’ll have your own view about that but I wonder whether X was really persuaded by the argument.

On the available evidence (purely hypothetically because I will vote for neither) I would choose a Corbyn Government over a Johnson one. But the above is the case, as I understood it, made by X, a senior Tory politician not impossibly far from my own tribe, for the alternative.

An Amendment to the Cooper Letwin Bill

What follows is a draft clause for the Cooper/Letwin Bill which puts into the hands of Parliament the in extremis decision whether to revoke or No Deal.

*          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement

(1)        Subsection (2) applies if, at midday on the House of Commons sitting day immediately prior to the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom:

(a) no withdrawal agreement has been ratified in accordance with section 13 of the European Union (Withdrawal) Act 2018; and

(b) no agreement has been reached under Article 50(3) of the Treaty on European Union to extend the date at which the Treaties shall cease to apply to the United Kingdom.

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following.

(3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

***

It is clear from the Business of the House Motion of 3 April 2019 that amendments made in the House of Lords can be considered in the Commons on their return.