The High Court judgment: keep calm and carry on…

untitledThe High Court judgment in the Miller case, that notification under Article 50 of the TEU of the UK’s intention to leave the EU cannot be given under the royal prerogative, has attracted intense comment, some of it vituperative and directed at those who gave the judgment rather than the judgment itself.  As I have already tweeted, if you believe (as I do) that the judgment is flawed, you should identify the flaws – not attack the judges.  We are fortunate in the quality of our judiciary and the judges who gave the judgment are rightly among the most eminent.

I am not sure I shall add much to existing commentaries on the case, but here – for what they are worth – are my observations:

This situation could have been avoided.  The fact that the case has arisen is in many respects the consequence of the rush to hold a referendum and not giving adequate thought to possible consequences.  Debate on the EU Referendum Bill focused on issues such as the franchise and the period of official purdah.  I have made the point before that in my Second Reading speech in the Lords, I raised the issue of thresholds.  I also raised the point that it was an advisory referendum.  The minister replying seemed to think that referendums were necessarily advisory, even though I made mention of the fact that Parliament had provided that the 2011 referendum on AV was binding.  Ministers made clear that the Government was committed to implementing the outcome of the EU referendum, whatever it was – there was a manifesto commitment – but made no move to provide in the Bill that if there was a ‘leave’ vote, then notification under Article 50 would be given.  Had such a provision been included, there would have been no court case.

Many speeches in the debate on the Bill, not least in the Lords, focused more on the merits of staying in or leaving the EU rather than on the provisions of the Bill.  As I have pointed out before, institutions and processes are not neutral in their effect, and the Miller case was the consequence of the particular process stipulated by Parliament.  The Bill was as important for its silences as for its particular provisions.

It is about means and not ends.  To go by some media coverage, one would think the High Court had ruled on the merits of EU membership or said that Brexit cannot go ahead.  As it made clear, it was purely concerned with a matter of law.  The issue was not about the merits of leaving the EU, but the means by which that was to be achieved.  The court held that notification could not be given under prerogative powers.  The referendum provided a majority for leaving the EU and Parliament is unlikely to go against that outcome.  (That’s my observation, not the court’s.)  The court quoted Dicey on parliamentary sovereignty, but as Dicey observed, ‘we may assert that the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country’.  (Adding, ‘But this a political, not a legal fact.’)  Furthermore, the case is to be appealed to the Supreme Court.  We need therefore to await the outcome of that appeal.  In short, the media response is totally over the top, as hysterical as it is ill-informed.

The judgment is flawed.  I believe the reasoning of the court is mistaken and is in several respects.  The court proceeded on the basis – accepted by the parties to the case – that notification under Article 50 is irrevocable.  There is nothing in Article 50 to this effect and Paul Craig has argued that the natural textual meaning of Article 50(3) is that a state could decide to change its mind and withdraw from the exit negotiation.  The judgment also accepts the argument that rights created for citizens cannot be taken away by prerogative powers.  As the European Communities Act 1972 created rights, these cannot be removed other than by Parliament.  As Adam Tomkins has noted, this is a judge-based doctrine that did not exist at the time of the 1972 Act.  Furthermore, and this is the core point, the rights, as John Finnis has argued, are treaty-based UK rights and not ‘statutory rights enacted by Parliament’.  Rights created under EU law as it stands ‘from time to time’ can be modified or even removed by the EU, entailing no restraint or authorisation by Parliament.

Even if one disagrees with Professor Finnis’ argument, it is one that needs to be addressed.  The court does not really engage with the Finnis argument, but rather proceeds by accepting that EU law rights are rights enacted Parliament.  (Read in the light of Finnis’ argument, much of the discussion of rights in the judgment loses its force, and as Carl Gardner has argued, the body of rights involved is not as extensive as the court argues.)  The court instead proceeds on the basis of a judicially identified category of statute – ‘a constitutional statute’ – and, having drawn on this concept then concludes that Parliament in 1972 intended that the European Communities Act should be such a statute.  It then goes on, at paragraph 82, to assert: ‘Statutory interpretation, particularly of a constitutional statute which the ECA is for the reasons given at paragraph 43-44, must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislation by legislating in the terms that it did’.  In effect, perceived intent is being built on perceived intent.  We thus have a constitutional statute, background constitutional principles, with those principles to inform the inferences to be de drawn as to what Parliament intended.

The High Court in ex p. Rees-Mogg in 1994 held that ‘When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the [Parliamentary Elections] Act of 1978.’  The court in Miller argues that this did not provide guidance in the present case as in that case the court did not have to consider whether the Crown’s prerogative powers had been unaffected by the ECA and the present case deals with withdrawal from the relevant EU treaties.  Having decided that the case was not relevant, in then goes on to say that ‘we consider that it is clear’ that Parliament in 1972 intended to legislate so as to introduce EU law into domestic law in such a way that could not be undone by the exercise of Crown prerogative power (para. 92).  It is clear to the court because of the reasoning it has adopted.  That reasoning, though, is in my view, as I have indicated, built on contestable foundations and rather stretched reasoning.  There is solid ground for stating that Parliament intended to legislate so as to give effect to EU law, created under the treaties from time to time, into domestic law, but it does not follow that it intended to do so in such a way that could not be undone by the exercise of the Crown prerogative.

The court was unanimous and robust in expressing its judgment.  However, the judgment is, in my view, for the reasons summarised above, open to challenge.  In saying that, I am not going beyond what some distinguished legal scholars have said (not least in the collection of comments in the Policy  Exchange’s Judicial Power Project collection), but simply adding my voice in support of their arguments.

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Protecting voter choice

Ballot-Paper-300x150I spoke briefly in the House last night on an amendment to the Wales Bill.  Lord Hain sought to prohibit people who lived outside Wales from being elected to sit in the National Assembly for Wales.  My objection was one of principle.  Parliament should seek to ensure that electors can select who they want to represent them.  It is not our job to tell them who they can or, in this case, cannot choose to speak for them.  If electors in Wales want to elect someone who lives outside Wales, then that is a matter for them.

It was the same principle that led me to object to banning the dual mandate in respect of members of the European Parliament.  If one is elected as an MEP, one cannot sit in a national legislature.  The Government accepted the conceit of the EP that members were so busy that they could not do another job sitting in another legislature.  (We had to pass legislation to bar peers who were elected as MEPs from sitting in the House until they ceased to be MEPs.)  It may be that one cannot do two jobs at the same time (though this did not seem to stop Iain Paisley, who at one point had a triple mandate), but, as far as I am concerned, that should be a matter for electors.  If they wish to select someone who already sits in a legislature, that is their choice.   The person may or may not be up to the job, but that is a matter between them and their electors.

The point was raised last night that the use of a the top-list meant that electors had no real choice over candidates.  They vote for a party.  That, as I pointed out in response, was a case for changing the method of election, not for restricting further voter choice.

In intervening during Lord Hain’s closing comments, I pointed out that many years ago a Labour MP listed an address in Greece.  Lord Hain said he would not embarrass me by mentioning where some Conservative MPs lived.  It would not embarrass me, since I don’t regard it as a problem.  If electors know where their elected representative lives, and are content with that, it is a matter for them.  If they don’t like it, they can throw the Member out at the next election.

I am for eroding, not extending, restrictions on who can stand as candidates.  Let electors choose who they want.

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More myths….

44032Further to my earlier post on dispelling myths, I thought I would add a further two – although one encompasses a subject that will doubtless come as no surprise to regular readers.

Keeping the European Communities Act 1972 on the statute book will not keep the UK in the EU.  Some commentators appear to believe that by not repealing the 1972 Act this will keep us in the EU.  There is a e-petition to Parliament asking it not to repeal the Act, apparently in the belief that it will have this effect.  It won’t.  Technically, the UK could withdraw from the EU, but the 1972 Act could remain on the statute book.   As I pointed out in my speech when we debated the consequences of the referendum, the Act was not a measure to ratify the treaty, but to provide the legal basis for membership in UK law.   In practice, it  would be perverse to maintain the Act as it is consequent to withdrawal from membership, hence the proposal for a bill to repeal the Act and provide that existing EU law should remain in place until Parliament decides whether it should be removed, modified or retained, but that does not affect the formal position.

A government resignation will not trigger a general election.  Yes, back to the Fixed- term Parliaments Act.  As readers will now be only too well aware (even if some journalists are not), it is no longer in the gift of a Prime Minister to ‘call’ a general election.  The PM can ask the House of Commons to trigger an election under section 2(2) of the Act – or seek to engineer a vote of no confidence in his/her own government (s2(4)) – but cannot unilaterally trigger an election.  I have been asked if losing a vote of confidence would count.  As I pointed out in an early post, it would not count (it would have counted under the bill as it was originally drafted, but not as it was enacted).  The PM could say confidence attaches to a particular vote.  Prior to the 2011 Act, the loss of a vote made one of confidence by the PM led either to the resignation of the government or (as in 1979) the calling of an election.  Now the option of calling an election has gone.  A government could resign, but that would not engage any provision of the Fixed-term Parliaments Act.  (On this see my January article in Parliamentary Affairs.)  The House could subsequently vote for an early election or pass an explicit motion of no confidence (in the terms stipulated by the Act), but the resignation by itself would not trigger any provision of the Act.  If a government did resign, and there was no requisite majority in the House to trigger an early election, we could have endless negotiations and no new government prior to the scheduled general election.

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What is the royal prerogative?

6615944(115x85)The royal prerogative is a matter of some debate at the moment – notably in respect of triggering notification of the UK’s intention to leave the EU under Article 50 of the Treaty on European Union – but what is the royal prerogative?

The prerogative comprises powers that have inhered in the Crown or in the monarch, but have not been displaced by statute.   Prerogative powers were constricted by the Bill of Rights 1689 – a number were outlawed – and with the growth of responsible government it became established that the prerogative powers that remained were to be exercised by ministers in the name of the Crown or exercised by the monarch on the advice of ministers.  Thus, for example, the prerogative power to pardon someone sentenced to hang was exercised by the Home Secretary.  The prerogative power to declare war was exercised by ministers.  The announcement in 1939 that the UK was at war with Germany was made by the Prime Minister, Neville Chamberlain.  The award of honours and the appointment of ministers is made by the monarch on the advice of ministers, in the latter case by her Prime Minister.

Successive governments have recognised the case for limiting such powers.  Part of the Governance of Britain programme of Gordon Brown was to transfer prerogative powers to Parliament: ‘The Government believes that in general the prerogative powers should be put on a statutory basis and brought under stronger parliamentary scrutiny and control.  This will ensure that government is more clearly subject to the mandate of the people’s representatives’.   The Conservative manifesto at the 2010 election included a commitment to make the prerogative ‘subject to greater democratic control so that Parliament is properly involved in all big national decisions’.

The Brown Government sought to provide for Parliament to take decisions on the commitment of UK troops abroad, but was unable to craft a Bill or motion that would allow sufficient latitude for Government to act at times of emergency.  However, it is now taken as a convention that the Government should seek the approval of the House of Commons before committing forces to action.  The Government did achieve passage of the Constitutional Reform and Governance Act 2010 which provided that a treaty, with certain exceptions, is not ratified if within 21 days either House has resolved that the treaty not be ratified and, if Government nonetheless wishes to persist, within a further 21 days the House of Commons has resolved that the treaty not be ratified.  The Act also put the civil service on a statutory footing.

As regular readers will know (even though some commentators have still to grasp the fact) the Fixed-term Parliaments Act 2011 removed the monarch’s power to dissolve Parliament.  This was identified by Lord Hailsham as one of the two powers accentuating what he termed ‘the elective dictatorship’.  That power has now gone.

There remains uncertainty as to what happens if a prerogative power is superseded by statute, but the statute then repealed.  This is important in the context of the Fixed-term Parliaments Act.  It repealed the Septennial Act 1715 and omitted section 7 of the Parliament Act 1911.  They are no more: they do not come back into being if the 2011 Act is repealed.  However, if the 2011 Act is repealed, does the prerogative come back into play?  That is a matter of some dispute, but the general view is that it does.  However, in the case of the 2011 Act, one would need to enact a statute replacing what it had introduced: a simple repeal would leave it in the gift of the monarch as to when to call an election and a Prime Minister may leave it for many years before requesting one.

The prerogative is, then, much restricted relative to what existed only a few years ago, but it remains an important, and at times controversial, feature of the British Constitution.  You cannot understand British politics with the prerogative left out of the discussion.

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We have a winner…

dsc_2341There were some excellent entries for the caption competition.  Every one was a potential winner, though the edge of some was possibly blunted by the fact that (a) I am a Methodist and (b) I have better things to do than watch food programmes; and indeed am not a great food buff. There were some very clever entries – Croft and Jonathan were serious contenders – and I thought Peter L.Foster’s linked nicely to politics: ‘Professor Margaret Archer to Professor John McEldowney: All those late night sittings have finally caught up on him.’

However, the winner – and regular readers will grasp immediately why this struck a chord – was Tony Sands with: ‘And when do you think Theresa May will call a general election, Lord Norton?’

If he gets in touch, a publication will be on its way.

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Repealing the Fixed-term Parliaments Act?

20161008_174622Some commentators, as I have previously noted, still appear to be unaware of the Fixed-term Parliaments Act and think that the PM can call a ‘snap’ election.  It is no longer in the gift of the PM to ask the Queen for a dissolution of Parliament.  The Queen has now no prerogative power of dissolution.  If the PM wants an early election, she has to go to the House of Commons to get a 2/3 majority of all MPs for such an election.  The only other route is through the House passing a motion of no confidence (and it has to be a motion of no confidence – not a vote of confidence that is lost); if within 14 days a new government is not formed and gets a vote of confidence, an election takes place.  An early election is thus possible, but it is not for the PM alone to determine.

Some journalists are now alert to the fact that the Fixed-term Parliaments Act exists and a few appreciate precisely what it entails.   However, it is not unusual for reference to the Act to be almost in passing – it can be ‘fixed’ or ‘simply repealed’.  The latest example is Peter Oborne in The Daily Mail.  It is not clear that those who cover it in this way are cognisant of the provisions of section 2 of the Act.  My principal point, though, is in respect of calls for its repeal.  The Act cannot be simply repealed or set aside by a vote of the House of Commons.  It can only be repealed by another Act of Parliament.  This, contrary to the views of Peter Oborne and others, is not that simple.   An Act that repealed the 2011 Act and did no more than that would mean that Parliament could potentially continue in perpetuity.  Repeal of the 2011 Act does not entail the previous provisions governing elections coming back into force.  The Septennial Act 1715 was repealed by the 2011 Act. Section 7 of the Parliament Act 1911 was removed by the 2011 Act.  Repealing the 2011 Act does not bring these provisions back into effect.  They have gone.  There is a dispute about whether the prerogative resumes, but if it does all that means is that Parliament would continue until such time as the Queen agreed to a dissolution.  A PM could leave it for some years before requesting a dissolution.

In short, a simple repeal is not politically feasible.  The measure would have to stipulate the provisions for future elections.  One could put the position back to what it was before September 2011, but that has to be provided for in the Bill.  Not everyone may agree to reverting precisely to what existed before.  Why not stipulate that the maximum life of a Parliament should be four years rather than five?  Why not introduce some limits of the power of the Prime Minister to request a dissolution?  This does not mean that one could not get the measure through, but it does mean that it would generate debate and likely attempts to amend it.  In short, possible, but not necessarily simple.

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October caption competition

A friend was keen to remind me recently that I had not posted a caption competition for some time.  (I did point out that the blog was designed primarily for what were intended as informed posts on constitutional and other developments!)  dsc_2341 Anyway, here is the latest picture for the caption competition.  It was taken at the Judges’ Summit at the Vatican in June.  I am flanked by law professor John McEldowney and Professor Margaret Archer, President of the Pontifical Academy of Social Sciences, under whose auspices the summit was organised.  As usual, the winner will be the reader who offers what in my view is the wittiest and most appropriate caption and the prize will be one of my publications.

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