Six thoughts on Labour and Brexit

First, Labour’s decision to ‘respect the result’ of the Referendum is a choice. It has chosen to respect the result because, whatever the reason, it wants to.

It is true that people believed they were voting for a result that would be delivered. And – although a legally binding referendum would likely have had further safeguards – all things being equal my own view is that Labour would have been politically bound to deliver the result of this advisory referendum. But all things are not equal.

Both the official and the unofficial Leave campaigns broke the rules in material ways – they cheated, not to put too fine a point on it. There is powerful evidence of Russian interference in the referendum. Demonstrable and deliberate lies were told by the Leave campaigns. The promises that the Leave campaigns made will not be delivered. I accept that the assessment of the political saliency of these things is a matter of judgement. But it cannot sensibly be argued that it would be impossible for Labour to say ‘the result is not valid; the will of the people was not discovered by this flawed exercise.’

These factors open the door for Labour to say the result lacks validity. Labour has made a choice not to walk through that open door.

Second, Theresa May is pushing for a softer Brexit and Jeremy Corbyn is pushing for a harder Brexit.

For myself, I see no meaningful difference between the outcome being sought by the Conservative and the Labour parties on Brexit. Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union. Both want control over immigration in a way that rules out membership of the Single Market. In the circumstances I think it is reasonable to say that both want a Hard Brexit. But the point I am here making is a different one.

Theresa May’s party has a very large contingent that is prepared to leave without a deal. Her battle is with the Ultras in her party that would deliver that outcome and she seeks a ‘softer’ Brexit than they want. The Labour Party by contrast is dominated – its membership, its voters, its constituencies such as trade unions – by those who want a soft or no Brexit or a vote on the deal (or on whether to leave without a deal). Jeremy Corbyn’s battle is with that dominant faction in his party – and he seeks a harder Brexit than they want. This is (it seems to me) beyond sensible debate.

He is battling for a harder Brexit, she is battling for a softer one.

Third, Labour cannot win its battle with its Remainers.

The debate on social media between those who see a Corbyn government as more important than stopping Brexit (“Pro Corbyns”) and those who see stopping Brexit as more important than a Corbyn government (“Pro Remains”) is a debate the Pro Corbyns cannot win.

Labour is a political party. To win Government for their man, Pro Corbyns needs a broad constituency. As things stand, Pro Remains are a campaigning group. Their immediate goal is to force Labour to change its position on Brexit.

Pro Remains lack sufficient representation in Parliament. Without it they cannot achieve their goal. So their strategy must be to cause the only party who might change its position to do so. And, sadly, the only way to cause Labour to change its position is to ensure the political cost of pursuing its present stance is greater than the political cost of changing it. And if Pro Remains are toxifying Labour’s attachment to its present stance they are winning. They will be forcing Labour to re-evaluate that stance. If Pro Remains are also toxified that does not matter – or does not matter at this stage – because they do not need a broad constituency to achieve their immediate goal.

(In a better world, the Pro Remains strategy would be to ask Labour to look to the interests of the country, or to the need to fund public services, or to protect the jobs of working people, and so. But sadly we are not in that world).

Labour cannot win its battle with its Remainers.

Fourth, by aligning his position against that of Labour’s members, Jeremy Corbyn is dishonest and hypocritical.

Corbyn campaigned and won the leadership on a platform of allowing members to choose Party policy. He said (you can see him saying it here at 31.07)

“One firm commitment I make to people who join our Labour Party is that you have a real say, the final say in deciding on the policies of our party.

“No-one – not me as Leader, not the Shadow Cabinet, not the Parliamentary Labour Party – is going to impose policy or have a veto.”

Yet Labour’s position is not remotely aligned with what the polls say its members want. And Labour is reported to be battling, yet again, to prevent its Brexit policy coming for a vote before Party Conference.

Corbyn’s position is hypocritical and dishonest.

Fifth, Labour offers nothing of substance on Brexit.

It is true that Labour fought hard for Parliament to have a say on whether to approve the Brexit deal. And with the help of Tory rebels it won a vote on that subject in December. And it was only when Tory rebels capitulated last month that it lost a vote that would have strengthened Parliamentary control.

But Labour has consistently refused and refuses to say what it would do with Parliamentary control. It has not said it will vote to withdraw the Article 50 notice if the Brexit deal is unacceptable to Parliament. It has not said it will vote for a referendum if the Brexit deal is unacceptable. It offers nothing.

The best guess – and it can only be a guess – is that if the Government’s deal is voted down Labour would seek to force a general election. But that vote is likely to take place in late January 2019 (see section 13(10)) and there would be no time after the result was known, and after any General Election was called and run, for Brexit to be affected by the outcome. And if this guess is right, it suggests Labour’s fight for a meaningful vote is more about Labour’s narrow interest than about Brexit.

Labour offers nothing of substance on Brexit.

Finally, sixth, Labour has chosen not to push for a softer Brexit.

To be in opposition is to have a minority in Parliament. This does not stop an opposition campaigning or voting for its policies. And sometimes those votes or campaigns succeed.

Brexit is no different. Labour could develop a deliverable alternative to the Tories’ plans. It could negotiate with the EU to ensure that alternative was acceptable. It could then campaign for that alternative in the country and in Parliament. That is what an opposition does: it puts forward policy proposals and seeks to persuade the country and Parliament that those proposals are desirable and deliverable. It hopes to force a u turn on the Government

Labour, in the case of Brexit, has completely absented itself from that process. It has not developed a deliverable alternative. It has not sought to negotiate and agree it with the EU. And it has not sought to persuade the country and Parliament of the value of that alternative.

Labour could have pushed for a softer Brexit. It has chosen not to.

Legatum and Hypocrisy

This may have passed you by. Christopher Chandler, and members of the Legatum group (“Legatum”), he founded, have been seeking to silence his critics.

Here is an apology published by the Guardian:

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That apology was tweeted out by Legatum with this commentary:

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But they didn’t stop there.

Legatum also threatened to sue a small online political site ‘Left Foot Forward’ causing it to issue a retraction. I am also aware that legal proceedings have been threatened against a tiny pro-EU campaigning organisation. And there may well be others.

You should read Left Foot Forward’s retraction. This are matters of real triviality. Is threatening to sue a modestly sized website the behaviour of a group which “champions the freedom of the press”? Or is it the conduct of a group which is perfectly prepared to use its wealth and power to suppress criticism of the man it identifies as its founder?

I ask because, back in December last year, Legatum issued a statement containing a false and ugly smear of me:

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At the time, I stated that that allegation was in error. And I asked Legatum to specify what “dirty tricks” I was guilty of.

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That request was ignored. Was that the behaviour of an organisation which believes that “with freedom comes responsibility”?

When I saw that an apology had been demanded of the Guardian for its treatment of Christopher Chandler I wrote to him. You can see my letter here.

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I referred to Christopher Chandler’s objection, as revealed by the Guardian’s apology, to the accusation of hypocrisy. I referred to Legatum’s false and ugly smear of me. I assumed Mr Chandler would want that smear to be withdrawn. And for an appropriate person at Legatum to apologise for it. And I undertook to keep the apology private. I did not seek damages. I did not seek his or Legatum’s embarrassment. I asked him to behave honourably and decently.

Some days ago I received this response.

You will note it is written on behalf of the “Legatum group of companies” to whom it claims, falsely, that I wrote. Christopher Chandler, who sets great store by his reputation, has simply not bothered to respond.

That letter:

(1) of the “dirty tricks” smear, it claims (absurdly) that it was not directed at me;

(2) it attacks me for the questions that I have raised and the opinions that I have expressed about Legatum’s conduct; and

(3) it accuses me of hypocrisy in relation to my conduct on tax avoidance.

Let me say that I am happy to defend my conduct and I accept it is a legitimate matter for reasonable open public debate. I have addressed my position on tax avoidance here. And I am happy to confirm I took advice from a QC specialising in charity law before expressing the view I did that the Legatum Institute’s conduct was likely on the wrong side of the law.

Legatum, on the other hand, has used its money and the power that comes with it to stifle criticism of Christopher Chandler advanced by media with even modest reach whilst claiming to “champion the freedom of the press”. Christopher Chandler has failed to apologise or acknowledge I am entitled to an apology for a false and ugly smear whilst Legatum trumpets the claim that “with freedom must come responsibility”. Christopher Chandler has objected to suggestions of “hypocrisy over Brexit” but Legatum behaves hypocritically when it comes to press freedom.

Legatum’s record suggests I may face legal threats or worse for writing this. But it and Christopher Chandler are powerful and divisive and we must be free to discuss them and, if they are hypocritical, we must be free to call them out.

That, as Legatum might say, is what “champion[ing] freedom of the press” looks like.

My speech on accepting the Praeses Elit 

Earlier this afternoon, at Trinity College Dublin, I was awarded the Praeses Elit (2018).

The Praeses Elit was established by former President of Ireland, Mary Robinson, and is awarded by Trinity College Law Society to “those who have advanced discourse in their line of work, and who have been a source of inspiration for young people everywhere.”

Recent winners include Nobel Prize winner F W de Klerk (2017), President of the Supreme Court Baroness Hale (2016), and Bob Geldof (2016).

What follows is the text of my speech.

***

It’s a profound pleasure to be here in Trinity College.

It’s an institution I have always felt an affinity with. I was here, in your chapel, to see two of my closest friends marry – Dominic Clarke and Ailis Ahern (she has a proper name, a Gaelic name but I’m not going to massacre it in front of you).

Dominic and Ailis met each other, and I met them, on an Erasmus year. And what a year it was: European constitutional law taught to us by a willowy and rather bookish young man called Koen Lenaerts, now President of the CJEU. And a stage in the Cabinet of the Belgian Advocate General, Walter van Gerven – perhaps the best lawyer I’ve ever known. It was the making of me as a lawyer.

And, as students we ate together and we drank together and we – let me call it “socialised” together. And we put aside the divisions of nations and we felt part of something bigger, something new. We felt optimism and we felt hope.

I went on to make amends for the crimes of my misspent youth – studying as an undergraduate law rather than a real humanity – with an MA and a dissertation on Samuel Beckett. If you ever find yourself struggling to articulate a thought in a tutorial, take comfort in this. Trinity’s very own Samuel Beckett won a Nobel Prize for performing the inadequacy of language. As an aside, I can’t read lines like the opening of Murphy: “The sun rose, having no alternative, on the nothing new” without also thinking how great he’d be on Twitter.

Being here, as Samuel Beckett was, makes me hugely proud.

So now to the work for which you have chosen to award me this splendid thing.

I am often asked why I do it.

And as I stare at the battered wreckage of my once lucrative professional practice, I ask myself that same question. And seeing in the mirror the sleep-deprived return of teenage acne – now splendidly framed by an entirely silver head… Well, that does not distract my mind from the question. And then I think of the only few snatched hours with my three daughters and a wife I love…

But I could no more stop the work that I am doing than I could grow wings.

Because I often talk about what I do – and only half in jest – as the result of a kind of pathology.

Its roots lie, I am sure, in a childhood where I was mistreated and I was powerless.

But now I am not.

I have the meretricious authority that comes from being a Queen’s Counsel. I have the platform of a stable family and the reach of approaching 80,000 twitter followers. I have the intermittent support of one of the best newspapers in the world. And I have the enormous advantage of the intellectual freedom that comes with self-employment.

Let me briefly transmogrify into one of those old men who come to the places where the young people are and tell them what to do. Have a good partner and nothing is impossible. Fight for a life where you are chiefly accountable only to your conscience. You may not be as rich – but you will always be happy and you will always be fulfilled.

So I ask myself, with all of those advantages, if I will not stand up to what is happening to my country? Then who will? Who are these people who are better placed than me?

Because I hate what is happening to the United Kingdom. I cannot understand its increasing indifference to the vulnerable. I am terrified by its contempt for democracy. I abhor the corruption of its institutions.

But alongside all of this, what is happening, what this unparalleled moment of democratic crisis also portends, is a kind of optimism.

Because we were complacent. Others, we thought, would sort it out. Scientists would fix global warming. Our social services would not tolerate the sexual trafficking of children. Healthcare would be there for those who needed it. Tax dodgers would be brought to book. Crime would not pay.

But now we know that that is not true. We know we must do it ourselves. And we have learned that lesson whilst there is time enough.

We must do it.

You must do it.

Meanwhile I reflect on that scene in Lord of the Rings with Gandalf on the Bridge at Khazad-dum. The fiery twin-horned Balrog approaches. And Gandalf – with his grey hair (and if you look really closely some prodigal teenage spots) – stands on the narrow bridge across a chasm.

And, although he knows the Balrog is too much for him, he plants his staff and his sword on the bridge and he says: “The dark flame will not avail you.”

“You shall not pass.”

Thank you.

A short response to Dominic Cummings

The judicial review brought by the Good Law Project caused the Electoral Commission to reopen its investigation into whether Vote Leave and Beleave were working together such that their spending must be aggregated. It has the evidence and it, rather than Dominic Cummings or Boris Johnson, will have to decide.

And, in consequence of that judicial review, no later than July the High Court too will have to decide whether the donations – if properly analysed there were donations – of services or cash by Vote Leave to Beleave count as Vote Leave’s spending.

The High Court may also comment on whether, as Dominic Cummings claims, the Electoral Commission gave him permission to make those ‘donations’. My own view is that it doesn’t much matter. My particular concern is not with whether Vote Leave had a reason to overspend but with whether the referendum took place as our Parliament mandated. If the Electoral Commission misunderstood the law and gave Vote Leave a permission it shouldn’t have then that will just make it all the clearer that the referendum was mismanaged; that it did not take place as Parliament intended.

So, on these matters, I don’t feel any particular need to respond to Mr Cummings’ excitable claims. The Electoral Commission and High Court can address them.

He does, however, advance three false allegations about me in this paragraph:

Accusations from the dishonest @Jolyon that Vote Leave did not have permission from the EC to give donations to other campaigns were disproved in open court just days ago when the documents were revealed, and @Jolyon was criticised by the court for his conduct.

First, he claims I denied the existence of the Electoral Commission advice. That, I am afraid, is just nonsense. The position I have consistently adopted is stated here (there are many other examples):

Indeed, my belief has been that some advice may well exist, see, of many examples I could cite, this:

Second, he asserts I am “dishonest”. He advances no basis for that allegation and there is none to be advanced.

Third, he asserts I was criticised by the court for my conduct. You can read the judgment here. It contains no such criticism.

He has no ball to play so ineptly he strikes out at the man.

But the ball is still there: did the referendum take place as Parliament mandated? Or was it mismanaged and unfair such that it cannot be said to have delivered the will of the people?

These are questions the Electoral Commission and the High Court will now answer.

The BBC and Jeremy Corbyn

Yesterday I tweeted this:

And I went on to explain why I would not give any further information. But I think there are further matters I can add that would add context and meaning to my tweet.

  1. What can I say about X? My “conversation” – which was conducted entirely in writing – took place with X. X is an individual at the BBC whose seniority and sphere of work is such that it could not sensibly be suggested that X is not properly qualified to speak on such matters.
  2. How did the conversation arise? The conversation took place subsequent to Jeremy Corbyn becoming leader and in the context of a broader conversation about his treatment by the press.
  3. Was the conversation in private? It was not explicitly in private. But I understood it to be part of a private conversation. At the time I asked X whether I could make public an anonymised version. X indicated a preference for me not doing so as to do so might cause a witch hunt.
  4. Why did I tweet what I tweeted? I think it is important I respect X’s wish that nothing be said that could conceivably enable X to be identified – including the particular language used by X. But I also think it is important to put this in the public domain – in particular in light of the BBC’s response to claims that it is coding into its imagery anti-Corbyn messaging. The tweet represents my attempt to balance those two matters. [Transparency note (i) I am a vigorous critic of Corbyn, especially on the subject of his stance on the EU (ii) I have said I agree with criticisms of the BBC’s use of images of Corbyn in front of St Basil’s cathedral].
  5. Can I say anything more about the substance of the conversation? X talked explicitly and unambiguously about how criticisms of Corbyn that the BBC could not voice were deliberately coded into imagery. X did not say that this was a general policy of the BBC or that there was some institutional directive to ‘smear’ Jeremy Corbyn. X clearly understood that X’s comments were sensitive for the BBC (see 3. above). [Note: my understanding of the BBC’s news/current affairs/politics output is that it is relatively heterodox.]
  6. Given that I will not release images of the written exchanges how can they be verified? I have said that I would swear a statement that my tweet above is true. I am also prepared to consider asking a lawyer, who would be bound by a professional duty of confidentiality, to swear a witness statement saying that s/he has reviewed the written exchange between me and X and that my tweet and this blog post is accurate.

The BBC, Presenters and HMRC

The recent decision involving a former BBC Look North presenter raises a question that will be familiar to long-suffering followers of this blog: “who bears responsibility when tax avoidance schemes go wrong?” (Arrivistes may care to read this summary of the many pieces I wrote about footballers. And this, on how the professionals get away with it.)

The legal answer is straightforward.

As I explained here, the drafters of the IR35 regime intended that, if IR35 applied, the tax liability should sit with the engager (here the BBC). That made sense for several reasons: the engager were beneficiaries of the use of personal service companies (they avoided liability to employers’ NICs) and the tax can be collected from the engagers (in practice, very often it can’t be from PSCs).

But the Government of the time gave in to lobbying from engagers. And the result was the unfortunate situation we now see, where historic liabilities are shuffled onto those with the least knowledge and often without the resources to meet them.*

And alongside the legal question there is a moral one: are the presenters really to blame?

Answering that question is altogether more difficult. Some presenters will be financially sophisticated. Some will knowingly have engaged in risky tax behaviour. But a great majority will have relied on their advisers, will have been tacitly encouraged by the attitude of the BBC (‘how could the BBC be involved in tax avoidance?’) or other major broadcasters, and will have been fortified by the many years in which HMRC seemed barely to bother to apply IR35.

Is it really fair that we point the finger only at the presenter? Should the BBC escape moral obloquy? And what of the army of advisers?

Meanwhile, for those presenters who can lay reasonable claim not to be caught by IR35, further difficulties mount up.

HMRC is one actor and can behave strategically. It can choose the cases with the ‘ugliest’ fact patterns – for example, the Look North case mentioned above – and seek to establish the law by reference to those cases. Principles developed in those ‘ugly’ cases will then be applied to better fact patterns.

But the presenters are disparate. They may act in what they perceive to be their own interests rather than the collective interest. They may bear costs personally rather than pooling and sharing them – and so lack the resources to engage the best representatives. And they may not think to put their ‘best’ cases forward: will news presenters hold their cases back so that the easier categories of sports and talk presenters can go first?

These assessment whether IR35 applies involves a delicate balance of complex facts. It is far from straightforward. And it is perfectly possible – indeed it is likely – that these structural imbalances as between the disparate group of presenters, on the one hand, and HMRC, on the other, will cause whole classes of presenter who might otherwise escape liability instead to bear it.

Hard cases, as every lawyer knows, make bad law.

The weight of tax liability, moral responsibility, and the burden of bad law. All could come to fall on presenters.

*For tax liabilities accruing from the start of this tax year, we will revert to the original intention, but only in respect of public sector employers. This biased approach makes little sense. Writing on the day of his announcement, I argued that this step made little sense unless you wanted to tilt the playing field in favour of public sector outsourcers.

**Transparency note. I am professionally active in this field advising both broadcasters and presenters.

This is no time for complacency. The rule of law is under threat.

These are extraordinary times.

We are jettisoning much of the post-war constitutional superstructure. We are losing the Charter of Fundamental Rights. The Prime Minister has signalled her intention to ditch the European Convention on Human Rights. The Government’s EU Withdrawal Bill places broad law making powers directly into the hands of Ministers. The devolution settlements are under explicit threat.  Cabinet Ministers are contemplating the reintroduction of a hard border in Northern Ireland.  The Government routinely ignores in part or in whole motions in Parliament. It acts in breach of constitutional conventions (para 150). “Senior Brexit Tory MPs,” it is reported, are taking legal advice on whether the Executive can ignore the Supremacy of Parliament. The Prime Minister appointed as her official spokesman a man, James Slack, whose ‘Enemies of the People’ front page incited threats against judges.

And the threat these extraordinary times poses can already, I believe, be seen in the operation of the rule of law in our highest court. Let me explain.

The central point in Gina Miller’s case was this:

when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.

To address that point you would obviously need to consider whether “pulling the trigger” would have as its inevitable consequence the removal of legal rights. And the only court that could answer that question was the Court of Justice in Luxembourg.

But, as we know, the Supreme Court did not ask that question of the Court of Justcie in Luxembourg (despite the fact that it seems to have expected to be asked).

How did it avoid that course? Paragraph 26 gives you your answer:

In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point.

Gina Miller wanted to win; she was (then) happy to assert the Notice was irrevocable. For his part, the Secretary of State could not contend that the Notice was revocable because that would suggest, contrary to the Government’s policy, that the Notice might actually be revoked. And so the Supreme Court decided to assume that the Notice was irrevocable “without expressing any view of our own.” And, as we know, it went on to decide that the Government could not give the Notice without the permission of Parliament.

But here’s the thing.

It’s no part of legal reasoning to proceed on the basis of an assumption of the law. It’s logically impermissible. It risks wrong outcomes – with serious consequences. Let me illustrate the point.

I am one of six petitioners before the Inner House of the Court of Session in a claim asking for a reference to the Court of Justice on the question whether Article 50 can be unilaterally revoked. The case is likely to reach the Supreme Court. What happens if the question is referred to the Court of Justice which says the Article 50 notice can be unilaterally revoked?

It follows that the Supreme Court will have decided Gina Miller’s case on the basis of an flawed assumption of the law. But for that flawed assumption (many believe) the Supreme Court would have decided that the consent of Parliament was not needed to serve an Article 50 Notice.

Now, as it happens, Parliament did not, as the price of consenting, tie the Government’s hands to a particular negotiating objective. But it might, for example, have accepted the Lords’ amendment guaranteeing that EU citizens here continue to enjoy EU derived rights. It might have changed the course of Brexit and it might have done so without any proper legal basis. And that fact might have become known when the Court of Justice ruled on revocability. And all of those risks are why it is logically impermissible for a court (and especially a constitutional court) to proceed on an assumption of law.

So why did the Supreme Court take this course? Did it just forget this was impermissible and dangerous?

No. And here we delve into the realm of speculation. But my explanation is this: it was intimidated by the ferocious headlines in the Mail and elsewhere. It was spooked by the failure of the then Lord Chancellor to perform her constitutional duty to defend the judiciary. It felt threatened by Sajid Javid’s warning: “This is an attempt to frustrate the will of the British people and it is unacceptable.” It feared what would happen if it referred the question in circumstances where a referral would delay the Prime Minister’s stated intention to notify Article 50 by the end of March.

Let me put it bluntly. There is, I think, good reason to believe the Supreme Court was intimidated into acting contrary to the rule of law.

These are, indeed, extraordinary times.

And it is not sufficient to say, as many (including the Prime Minister’s former Chief of Staff) do, that “we” – whoever the “we” is in his sentence – can be trusted.

And it is not enough to assume that because things were fine fifty years ago they will be alright now.

We have no domestic written constitution. The extra-national constitutional structures are under explicit threat. There is good reason to think that the operation of the common law – that very British constitutional solution – has already been weakened by the prevailing climate. And, as my opening paragraphs point out, the Executive is running amok.

And this should alarm everyone – wherever they stand on Brexit.