A whine made from sour grapes

It is true that, unlike (for example) our referendum on the alternative vote, Parliament chose not to make the EU referendum legally binding. This point, along with many similar, is available to be made.

But it is a whine made from sour grapes.

It is available but it fails to address head on the democratic imperative of the Referendum result. The fact that the result was not technically binding does not have as its consequence that it can be ignored.

So where does this leave the court challenge, that seeks as a precondition for triggering Article 50 the passing of an Act of Parliament?

It has been, and will be, said, and often, that the challenge is about thwarting the will of the people. That’s an expedient line to take but it does suffer from this defect: it’s just not true.

Here’s what David Pannick QC, who argued the case, for the lead claimant said:

If we are correct in our legal submissions, and if the government were then to place a bill before Parliament, it would be entirely a matter for Parliament whether to enact legislation and in what terms. Parliament may decide to approve such a bill, authorising notification. Parliament may reject such a bill, or it may approve it with amendments which may impose limits on the powers of the defendant. For example, as to the date of notification; for example, in relation to parliamentary approval of negotiating terms; for example, as to the need for the minister to report back to Parliament at defined times. All of those would be matters for Parliament to consider and decide.

There is (and I think, rightly) little or no enthusiasm in Parliament for rejecting a Bill authorising the triggering of Article 50. But there is for imposing conditions.

The referendum left important questions unanswered – and it denies reality to pretend otherwise. It was silent, to pick up Lord Pannick’s point, on the date of notification. MPs did think to table an amendment (see NC4) that required Parliament to trigger Article 50 by a certain date but that amendment was not adopted. But, more importantly, the referendum left unanswered the fundamental question of what Brexit means.

Some Leavers say it was about immigration. For others it was Taking Back Control. Many say it was about the £350m. Who is to pick between these sometimes competing objectives? And on what basis do they assert the right to do so?

And, when we come to consider the consequences of the vote, we must also have regard to the wishes of those who voted to Remain. The Referendum asked whether we should leave the EU. It did not ask whether those who voted Remain – some 48% – should lose all opportunity to help shape a country that belongs to them too.

These choices, their consequences, are enormous questions. Fundamental to the life of our nation. The referendum result delivers a democratic imperative but it also creates a democratic deficit.

So let me ask this question, and non-rhetorically: how it can be wrong to require that the Government confront that deficit?

And if it is said, as seems to be the Prime Minister’s position, that Parliament cannot know before the event what we will negotiate for, the logical consequence is that the democratic deficit must be filled after the event.

And what filling the deficit after the event looks like is this.

The deal must be put in a meaningful way to Parliament or the country. And what ‘a meaningful way’ means is ‘with a genuine alternative’.

For the mutual convenience of the parties, the Article 50 litigation has been conducted on the footing that a notification under Article 50 is a bullet that, once fired, cannot be recalled to the chamber. Here is what James Eadie QC, who acted for the Government, said:

We say that a notice of a decision cannot be given on a conditional basis… We also say that an Article 50(2) notice is irrevocable, and once given, it will inevitably lead to withdrawal from the EU on a date which is subject to negotiation, but cannot be any later than two years from the point of notice, unless extended unanimously.

The consequence is that the opportunity the Government means to offer to Parliament to ratify the deal is, as even Jacob Rees-Mogg MP recognises, no opportunity at all. Quoted in The Times he said:

It is quite possible parliament will vote down a deal — but that just means we leave the EU without any deal at all, leave the single market and trade on WTO terms.

But there is another way to look at the consequences of triggering Article 50.

Speaking here (at 24.55), Donald Tusk says, unequivocally and contrary to the footing on which the litigation has been conducted, that the Article 50 notification, once given, can unilaterally be reversed. And he added here:

In my opinion, the only real alternative to a “hard Brexit” is “no Brexit”…Of course it is and can only be for the UK to assess the outcome of the negotiations and determine if Brexit is really in their interest.

And he is right.

It is for us to assess the outcome and for us to determine whether it is in our interests. That is the real choice. It can be made by the electorate in the form of a referendum on the outcome or, should Parliament prefer, by Parliament. But it must be made by the UK. It cannot be made by an Executive that holds no democratic mandate to do so.

And here is where the Article 50 case comes in.

If the Claimants succeed then the Government will need to put before Parliament an Article 50 Notification Bill. And Parliament will have the opportunity to impose one or more conditions on the triggering of Article 50. And the one condition it should impose is the one that addresses that deficit.

If not offered by the Government in the Bill, Parliament should table and uphold amendments. Those amendments should require that there is put before the people or Parliament a sharp and focused choice. ‘Here is the deal that we have negotiated. It is what we, your Government, think reflects the will of the people in voting to Leave. It delivers an exit from the EU in a way that balances the hopes and wishes of all the citizens of the United Kingdom. But the choice is yours. Take this or stick with what we have as members of the EU.’

If asked, I will draft those amendments.

30 thoughts on “A whine made from sour grapes

  1. We really need to get a definitive ruling on whether an A50 notification is unilaterally revocable don’t we? Tusk has his view but don’t we need a decision from the CJEU? Of course that’s politically awkward but I don’t see how we can proceed by guessing on this point.

    If it is revocable, as well as making meaningful Parliamentary ratification possible, it will also change the shape of UK/EU negotiations.

  2. I don’t doubt that an earnest assessment of the mood of Parliament may reveal little or no enthusiasm to put an immediate end to Brexit.
    How may a passive acceptance of the unassailable nature of lies go down?
    The public were offered the choice of two doorways:The Leave door was marked with lies;nothing beyond the threshold is as promised.
    For Parliament to truck with Brexit requires a tacit/explicit admission that a lie is more-worthy than the truth.

    Add to this the recent abandonment of the Conservative election-manifesto and ponder where truth is ever to be found again.

  3. As I wrote in the immediately preceding blog, I am coming round to that view.

  4. Would it not be far easier to repeal the 1972 Act and be done with it? We would trade with the EU under WTO rules. It is likely that the important parts of the EU (France and Germany) would want to set up a free trade deal as quickly as possible given our very considerable trade deficit.

    On statistic I heard was that we buy 20% of BMW’s production. This does seem on the high side, but given the number of them them running around, is feasible. The thought of that market being compromised in any way, however modest, will raise howls of protest.

    As for Thomas Austin’s comment about the Leave doorway having nothing beyond the threshold, the Leave campaign was never in a position to offer anything apart from hope for the future and freedom from a dictatorial, undemocratic body. Great chunks of the EU is immune from prosecution, including Europol. An unaccountable police force is as sinister and dangerous as it gets.

  5. How the government could even consider triggering Article 50 without knowing if it was revocable or not is ludicrous. It’d be like riding a bicycle down a hill towards a cliff’s edge without first checking whether the brakes were working.

  6. “Hard Brexit or No Brexit” seems increasingly inescapable. Parliament should act in defence of the people’s interest and chose the least harmful.

  7. Kevan – A number of points.

    “Would it not be far easier to repeal the 1972 Act and be done with it?”

    That would of course require a decision of Parliament, which many Brexiters are keen to avoid. It would also annoy the Europeans, whose goodwill we are reliant upon to agree a future trading arrangement. Finally it would leave us open to legal claims for to pension costs for EU officers – that’s one of the main points that need to be addressed in the A50 negotiations.

    “It is likely that the important parts of the EU (France and Germany) would want to set up a free trade deal as quickly as possible given our very considerable trade deficit.”

    That’s as may be, but any deal would have to be unanimous. Look at the EU-Canada deal, for example, where negotiations finished two years ago, but one of the Belgian regional parliaments has voted against it and so it may now be dead.

    “On statistic I heard was that we buy 20% of BMW’s production.”

    Fair enough, but how many Slovenian cars do we buy? How many Greek cars do we buy? Their governments would need to agree any deal. There was an interview in the Economist this week with the CEO of BMW in which he said that they take a long term view and the stability of the EU is more important to them than their UK sales. He supports Merkel’s hard line.

    “the Leave campaign was never in a position to offer anything apart from hope for the future and freedom from a dictatorial, undemocratic body”

    Well whatever it should have offered, it actually offered substantially more than that.

  8. Cameron and Osborne went around the country, went on all the major TV channels, and made clear during the debates that a vote to leave is a vote to leave the single market. That’s called hard brexit. I don’t have sympathy with the argument people were misled – the PM and chancellor were at pains to make this clear.
    Brexit was a choice between two sub-optimal outcomes. But now it’s been made we should move on. Including the fact the EU will not agree to any deal regardless of it’s content. Hard Brexit was voted for, and hard brexit is what we’ll get. The Italians will always want an extra X, the French a bit more Y, the Walloons something else, and the German constitutional court will be in there too… and so forth and so forth. Just look at CETA and TTIP: If the EU can’t agree a trade deal like that how much more antagonistic will the UK/EU negotiation going to be? But that’s just another example of why the Brexit referendum was a choice between two sub-optimal outcomes. Or to paraphrase the Canadian PM ‘if they can’t agree a trade deal with us, what’s the point of the EU?’.

  9. Hard Brexit might be more complex than imagined because we need to first clarify our WTO rules before we can trade under them independent of the EU. The simplest short-term fix would obviously be to adopt our current WTO obligations. That turns out to be technically complex because our current WTO obligations are not fully understood. Imagine a beef quota into the EU and the UK’s share of that quota. What would that be? How would it be measured? Mulltiply that over thousands of lines of small print and the problem soon becomes time-consuming. A long-term solution will take years to negotiate because the WTO reaches agreement by consent rather than by votes. I would hope to see all of this complexity included in any Bill presented to Parliament – changing our relationship with the EU is only the beginning of the journey (one I would rather not make).

  10. Jolyon – taking up your twitter gauntlet.

    As you’ll recall, my position is that I agree with you that Parliament should vote on A50. Setting aside the Case of Proclaimations/FBU legal argument, the moral force of this argument flows from the fact that there was an up/down choice, rather than a status quo v EEA v Swiss style menu of options (which the Electoral Commission would likely have refused and the hard Brexiteers would have complained about vigorously).

    Where we diverge is on how to solve your democratic deficit (I.e. an up/down vote on the deal vs default ‘hardest brexit’ outcomes. You want to put the deal to an up/down vote vs the status quo. I find that unsatisfactory for a number of reasons. First, a word on MPs. My view is essentially Burkean- you pick your representative for their judgment, not in order to reflect an aggregate of constituents’ views on any one issue. MPs have time to study issues, and hopefully come to informed conclusions. The referendum, however, was an outsourcing of this informed decision making role to the people, however. How informed they actually were, we cannot know (as with our MPs). But the reason I agree with you on point one is part of the reason I disagree on point two – the only outsourced question was whether to leave. People chose to leave – having had the opportunity to weigh the risks of all alternative models, if they wished. In my view, parliament gets to step back in to consider at least the general direction of travel – but the travel should lead to leaving in some form.

    You acknowledge as much when you say “The fact that the result was not technically binding does not have as its consequence that it can be ignored.” And yet your proposed solution appears to do just that, to say “well we warned you that outcomes might be suboptimal, you were jolly silly and ignored us, now try again please”.

    This links to when I said it would be politically unacceptable on twitter. I meant two things. First, I don’t think there is a commons majority for that framework, based in part on how I think MPs will view their obligation now. Second, I think that it would breed massive distrust and resentment against politicians, at a time when public confidence in them is already low and the door is ajar for the demagogue to make gains. I’ll caveat with this. If the public mood shifts a lot over the next year or so, because of negative economic impacts etc, then your approach might become possible because these factors may lessen or fall away.

    Third, addressing the issue of the ‘in principle’ deal, which would be the status of anything achieved against the backdrop of another vote at the end. First, assuming Tusk is right to assert this is possible (and he may not still be Council President, and his view is as you well understand not legally binding), it seems like the incentives are all wrong. Assuming the U.K. In the EU is what the 27 would like, they could stall negotiations for a long time and agree nothing, or deliberately offer poor terms, thus forcing an EU v hardest Brexit choice. It seems like a waste of resources to negotiate intensely and then have to bin all the work product. Why bother?

    Finally, returning to the legal thread, it does rather assume unilateral reversibility. That seems like a risky basis to operate upon, given that an attempted withdrawal would presumably squarely raise the question, which, as you note, is one of EU law, with the potential for a (very ironic) challenge by a hard brexiteer. I’d prefer not to leave the future in the hands of the CJEU…

    I voted remain. I think Parliament should vote on the direction of travel. But given the result, I think we should leave, and focus on sorting out the knotty legal and political issues that stand in our way.

  11. I voted leave in large measure because the EU’s primary fiscal purpose is to compel the transfer of public funds to people who own agricultural land. I still want to remain in the Single Market and allow free movement of honest labour, a relationship similar to non-EU Iceland and Norway, but without the farm subsidies ideally. There was a lot of lies told about how the Norway model wasn’t feasible, it was as if Cameron and crew wanted us to think Nor was a rubbish country.

    I suspect the Norway lies were told because the Remain politicians didn’t want people to think it was a good idea, as it would be their side that would lose votes. Tusk simply cannot know if we’ll go for an EEA exit yet, and may not have accepted the result of the ballot.

    One of the beauties of the EEA option exit, as well as getting back enough competencies to deal with for a few years anyway, is that it punts questions like immigration controls and allowing state subsidies to selected private industries down the road to the 2020 election. This will give UKIP a reason to still exist and allow them to take more votes from Labour in low immigration northern constituencies. With that slim majority I’m sure some Tories are thinking this.

  12. How does it feel to be accused this week, indirectly, of subverting the will of the British people?

  13. @Andrew Carey

    Did you know that Norway has the highest agriculture subsidies in the OECD https://www.thelocal.no/20120920/norways-farm-subsidies-highest-in-oecd)? The farming lobby is powerful in the UK, partly because a good share of the political class own land. There is also significant post-war political momentum to secure the food supply. Consumers, too, are used to cheap food and won’t give that up easily. What evidence is there that the Norway solution wouldn’t just repeat itself across England’s shires (agriculture being a devolved matter in Scotland)? I don’t see any at all. “British jobs for British workers” sounds more like a clarion call for import tariffs, quotas and subsidy.

    Hang on, it turns out you do want to have a discussion about state subsidies for “selected” private industries after 2020. That’s what you said in your post. That would include farming, right? Your position, as you described it, is inconsistent and hard to understand. On the one hand, no subsidies for farming, while on the other you want to use EU withdrawal as the starting point for a discussion about state subsidy for private industry. Have I understood correctly?

    “I voted leave in large measure because the EU’s primary fiscal purpose is to compel the transfer of public funds to people who own agricultural land.” Can you point me to evidence describing the primary fiscal purpose of the EU? I really am sick to the back teeth of falsehoods and polemic about the EU polluting every single discussion. Find that in any EU document and there is a prize trip to the moon for the winner.

    I’m unclear about your last point. It seems that you want an EEA solution to help UKIP’s electoral chances at the expense of Labour. Is that right? Seriously, all this risk and uncertainty to influence the outcome of a single election? You want to prolong this as long as possible .. for what gain? You really want our EU/EEA/WTO negotiations to be constrained by such short-term fixations?

    btw the probability of the UK staying in the EEA is between zero and nil unless it accepts the principle of freedom of movement of people. I’m fairly certain you’re not going to get what you want, either.

    The Brexit debate has turned into a think-of-a-number lottery. Get the number correct and we stay in the EU. Choose the number wrong from a galaxy of combinations and we leave. What a mess.

  14. @Terry
    Farm subsidies are the primary or biggest item in the EU budget at just under 40%. The incidence of the subsidies is on the land owner. Even if a tenant farmer gets the payment, it’s standard economics that the incidence or benefit falls on the owner of the land in higher rents and land values. Put those together, and unless this is all accidental, then you have a purposeful transfer of funds to people who are already well off, and my claim holds up.
    By voting Leave the £7bn currently spent by UK taxpayers on this will at worst be reviewed, and at best be massively improved in my view.

    The trade outcome I would like is the EEA or Norway option. I’m well aware Nor has stupendous farm hand outs, but that’s not down to the EEA relationship, that’s their daft choice as a very rich country.
    It’s the relationship that I want – free trade, free movement of honest labour, passport free travel ( unlikely but we can wish! ) and restrictions about State Aid would still apply ( I’m thinking about support for blast furnaces in Redcar here, not land owners ), and a proportionate contribution to social and scientific programmes which would be about £2.5bn a year if scaled to the UK/Nor GDP ratio.

    This may or may not happen, we just cannot know yet. A lot of falsehoods were given by both campaigns about why the Norway option couldn’t happen, and still are e.g. Tusk and anyone else ruling out a soft brexit who are stating opinion as fact.

    It would be electorally advantageous and expedient to the Conservative government to go for this. Plenty of competencies to work on for a few years, and it would keep UKIP alive in the north

  15. I am puzzled by the phrase “will of the people”. Generally a government makes assumptions about which parts of its manifesto got it into power, and then four years later if it were wrong, or the people have changed their minds then the government is ousted. The next government again makes further assumptions of the “will of the people”. In the case of this referendum that is not possible. Brexit, when it occurs, cannot be reversed in four years, it may take more than fifty years if at all. In the referendum some 34 million people voted and the difference between the two sides, Leave or Remain was about 4% or 680,000 votes. In other words the choice was made by 340,000 people who just happened to vote for Leave on the day. If these people change their minds then the Remain group will be larger than the Leave group. 340,000 votes is small in general elections. David Cameron increased his party votes in 2011 to 2015 by over 600,000, while Tony Blair in 19997 received two millions more votes in comparison to the Labour party of 1992.
    The will of the people changes quite dramatically. How will Teresa May handle these changes of will?

  16. This rubbish about “subverting democracy” from a totally unelected PM with no mandate is utter crap (let’s not even get into the fact that her party won in 2015 due to a significant number of MPs fraudulently misdeclaring their expenses – so was that result (which allowed them to bring forward the Eu referendum bill in the first place) even valid? Fracking is taking place in Lancashire due to her overruling a democratic decision taken by a council in according to overwhelming local wishes – so it seems that she is in favour of democracy, on her terms, when she likes the outcome!

  17. Table that amendment please Jolyon. Take the request as a given, should the need arise.

  18. Actually the main issue I have with the result is the leave side said a large amount of stuff that were flat-out lies and it seems there is no penalty for this and the result gets to stand. How is this democracy? On the up side my campaign for Mayor of London is on-track, it looks likely that by abandoning the infrastructure plans I should be able to reward every registered voter with a flat payment of £100k per year I’m in office…

  19. When has the argument ever been made that the result of a general election is “the will of the people”? Certainly not 2010-15 as no one voted for a coalition yet its validity was not questioned. Even when aGovernment is elected with a huge majority it is not claimed that it rules through “the will of the people”. It governs through a parliamentary system which is still claimed to be the envy of the world to a great extent because it involves an opposition debating, amending and opposing government proposals. Why is the referendum result so different?

  20. I fear that the following argument looks fatal for Lord Pannick, and it is ironic that Tax Treaty implementation and withdrawal might provide the answer to certain of the points raised on this Blog as to Parliamentary involvement ro rather the absence of it. See the excerpted passage from Professor John Finnis: Terminating Treaty-based UK Rights http://judicialpowerproject.org.uk/john-finnis-terminating-treaty-based-uk-rights/
    Perhaps ironic that the University of Oxford has provided the jurisprudence to back the Oxford Union style Referendum debate. To quote Gerard Hoffnung’s address to that venerable institution it is “a convenient place to keep the salt”.

  21. Following my posting concerning the withdrawal from Tax Treaties, there is one Estate Duty Treaty – with Pakistan that remains on the Statute Book, by SI 1957/1522, despite Pakistan’s abolition of Estate Duty, and therefore one side of the taxation covered by the Treaty/SI. Its reliefs remains available to Pakistanis as between Pakistan and the United Kingdom so as to regulate UK IHT.

    My point? The withdrawal in one thing under Treaty law and the TEU. However, the legal effects of the prior underlying provisions could be maintained by a suitably crafted amendment to the ECA 1972 to ensure continuity.

  22. @Peter Harris – Are there not also treaties with France, Italy and India which also over-rule deemed domicile rules? France and Italy in restricted circumstances but India is very similar to Pakistan. SI 1956/998.

    Unless I am out of date, which is possible.

  23. I think Mr Maugham’s explanation of the position is very clear.

    The approval by Parliament of a motion along the lines he suggests would put the triggering of Article 50 beyond doubt legally and would also have the big practical benefit of letting the public know what deal the Government wants.

    However, I’m intriqued by the fact that Art 50 itself specifies that the notification of withdrawal be in accordance with the Member State’s constitutional arrangements.

    If the UK courts decide that parliamentary approval is not needed and the Government triggers Art 50 using its prerogative powers, would it still be possible for the EU to seek a separate assurance that the constitutional arrangements had been properly complied with?

    If so, how would this assurance be given? Would the judgements of the UK High Court or Supreme Court supporting the Government be sufficient? Or would Parliament have to approve a specific motion?

    I know that the EU is not likely to delay things given that they want the UK to get on with the whole process asap, but it does raise an interesting legal point.

  24. It would be super if anti-Brexit parliamentary forces could produce an amendment to the Bill authorising the invocation of Article 50 along the lines that Jo proposes. Mrs May, though, is a stubborn and clever person and would not want to have a post-Article 50 debate effectively rerunning the Brexit debate. And she would be correct. There is absolutely no chance of such a debate being limited to precisely which controls would apply to migration and precisely how much the UK would be contributing to the EU budget. Which is why I think, even if she loses the court case, she will stick to her position of invoking Article 50 by royal prerogative, postponing parliamentary approval to the end of the two-year period.

    The question that occurs to me, in those circumstances, is whether the Article 50 notification could be revoked by royal prerogative once it became clear, during negotiations, that the outcome was going to be terrible for the UK? The parliamentary vote made necessary by the court decision would be a formality. Wouldn’t it be ironic if the Brexiteers, hellbent on leaving the EU at any cost and knowing they would lose in the House of Commons, started kicking up about Mrs May’s prerogative powers at that stage and demanded a second referendum instead?

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  28. I’d like to think I reached this conclusion before one of our sharpest legal minds.

  29. My link above seems to have been edited out. Written on Jun 27, 2016 5:58pm in response to “How to stop Brexit: get your MP to vote it down | Geoffrey Robertson” from the Guardian.

    My Facebook post:

    I don’t want a 2nd referendum, I want the result of the last one to be discussed in Parliament. I want the VoteLeave leaders to have to say on the record why they lied and to tell the truth about the likely impact if they tried to deliver on those lies and whether or not they still want to.

    As for what will happen next. I think that if as has been indicated, the EU refuses to commence negotiations until the UK evokes Article 50, then we will continue to see business & investment indecision which will drive the UK economy into a downward tail-spin.

    The effect of this economic downturn will be £Billons of lost expenditure for UK budget and so no extra if not less money for the NHS and a realisation that central govt won’t be able to match EU regional funds for years as well as many more years of austerity for the entire country.

    Meanwhile as more and more companies announcing the relocation of jobs and operations to countries remaining in the EU, and Scotland & Ireland press ahead with their own referendum plans to end the Union, everyone comes to realise the only person insane enough to press the now-nuclear option of Article 50 is Farage.

    Given there never was a clear Brexit post-EURef plan, Parliament gives the country a choice on keeping our current EU deal in place or taking a new one as proposed by VoteLeave with a clear explanation on what that means for Single Mkt access, Immigration & Sovereignty (Workers’ & Human Rights).

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