They are locking the doors of Westminster Palace

10th September 2019

So the prime minister has done it.

Boris Johnson has now locked the doors of parliament for five weeks in the short lead up to the UK’s set departure from the EU.

Actually closed down parliament, so as to prevent his government being scrutinised by the people’s representatives.

Not much one can add to that, but it is so dark and sad a fact that it warranted a post just for itself.

 

What if the Prime Minister deliberately broke the law over extending Article 50?

7th September 2019

There is, it seems, a serious suggestion that the Prime Minister would break the law rather than request or accept any extension to the Article 50 period.

By way of background the United Kingdom is, of course, set to leave the European Union by automatic operation of law on 31 October 2019.

There is, however, legislation about to be enacted that would oblige the Prime Minister to seek or agree to any extension to the Article 50 period.

The current Prime Minister Boris Johnson is quoted as saying:

“They just passed a law that would force me to beg Brussels for an extension to the Brexit deadline. This is something I will never do.”

And asked if this meant he would disobey the law, he is reported as saying:

“I will not. I don’t want a delay.”

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Well.

Some news reports state that a senior politician states the legal consequence of such a breach would be little more than “contempt of parliament” and that he would be a “martyr”.

Another news source has suggested he is merely “goading” parliament for a possible “impeachment”.

In fact and at law, it would be far more serious than that.

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A prime minister holds public office.

As such a prime minister comes within the scope of the criminal offence of misconduct in public office (read all you need to know here).

For any public servant to deliberately seek to breach the law (as opposed to say, creatively comply with it or find a loophole to avoid it) would be (on the face of it) misconduct under this offence.

If all the elements are made out of the offence then there would be a criminal conviction and a sentence, which can be up to life imprisonment.

Also caught would be any person, even if not a public official, who conspired, assisted or encouraged the offence (this can be shown by the Operation Elveden prosecutions).  

This could thereby catch any aides or advisors who had sought to facilitate the principal offence.

And that would not be the end of the legal peril.

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There is also the tort of misfeasance in public office where, if Johnson or any other public servant was held to be a tortfeasor (a lovely legal word, which Johnson would otherwise no doubt enjoy) then there would be liability in damages for losses that were caused by the unlawful action.

In respect of the losses which would be caused to companies and individuals by a No Deal Brexit forced by the wrong such damages would be likely to be colossal.

This would be in addition to, or separate from, any criminal liability – an offence does not have to have been prosecuted for the tort to be made out.

The criminal offences and the tortious liability would be in the personal capacity of those found liable.

*

This would be in addition to any legal sanction (such as imprisonment for contempt of court) for breach of an injunction and/or mandatory order obliging Johnson and others to comply with the law.  

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All the above is not because the Prime Minister has any special status: it is just the law treating him as any other public servant.

The Prime Minister is not above the law.

No doubt the talk so far is not to be taken seriously, and that there is no real possibility that the Prime Minister and others will conspire to break the criminal law, break any court orders, and commit a tort which will cause devastating losses to millions of people and thousands of companies.

It is surely just bravado, to impress reporters and political supporters.

But if it not bombast and bluster then all those involved had better get some jolly good criminal and civil defence lawyers.

Because, unlike – say – breaches of referendum spending and campaigning laws, breaking these laws will have serious consequences.

**

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Podcast on a No Deal Brexit and the Constitution

20th August 2019

I did a podcast yesterday and discussed the constitutional context of the current Brexit situation and the sheer difficulties now facing those opposed to a No Deal Brexit,

In essence: a No Deal Brexit can still be stopped, but it is not going to be easy, and the constitution is not going to be like the cavalry coming to the rescue.

Do have a listen and make any sensible, non-irksome comments below.

Mr Corbyn writes a letter

15th August 2019

A path of least resistance

(Source: Wikipedia)

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What, if anything, should make one make of the letter sent by Jeremy Corbyn, the Leader of the Opposition, to other party leaders and senior parliamentarians?

This is not a party-partisan blog and many have Very Strong Opinions about Corbyn and the state of the party he currently leads.

But from the perspective of law and policy, the letter contains a significant offer, and it should be taken seriously.

If your objective is either to stop Brexit or to avoid a No Deal Brexit there are now few options still available before the United Kingdom is set to depart the European Union by automatic operation of law on 31st October 2019.

The main reason options are limited is that the current government, under a new prime minister, is committed to the United Kingdom leaving on that date in any circumstances.

In this situation, any further extension to the Article 50 period (or even revocation) would be complicated.

Requesting extensions is an executive act – in particular, it is the prime minister (and cabinet) who would instruct the United Kingdom representative to the European Union (UKREP) to make the request or accept an offer of an extension.

(This is what happened with the Article 50 notification and the two extensions to date.)

As it is an executive act, it is difficult for a parliament (even one committed to avoiding “No Deal” in principle) to get round.

The prime minister has the key to that door and, as of today, nobody else does.

This problem for those opposed to No Deal, however, can be solved in two ways.

*

The first, and hardest, is for parliament to somehow enact mandatory legislation before 31st October 2019 obliging the prime minister to instruct UKREP to make a request for an extension (or accepting an offer of an extension).

This would replace the executive’s legal discretion with a legal rule with which it has to comply.

But this would not be straightforward.

In any circumstance it is difficult for contentious legislation to get through both houses of parliament at speed.

It is almost impossible to do in the face of a government opposed to that legislation.

And, as the legal blogger Spinning Hugo explains, such a course of action would here also probably require amendments passed by majorities to parliamentary procedures.

And also, there may be various changes needed to exiting Brexit legislation.

This means there are a lot of difficult things to align in a short period of time on a matter of immense public controversy.

The required legislation passed in the face of an opposed executive is not impossible, but it is unlikely.

*

The second, less difficult way is for those opposed to a No Deal Brexit to take control of the executive.

(This assumes that the current prime minister does not flip on the issue, which cannot altogether be ruled out.)

This means it would be straightforward for a new prime minister to make an extension request.

And as the government normally has control over the parliamentary process, any necessary statutory changes would also be far more straightforward.

*

The Corbyn letter sets out a practical and plausible way how the second approach can be carried out.

Two useful boxes are ticked – a general election would be (likely to be) acceptable to EU27 as the basis for an extension, and the commitment is to this being a one hit wonder administration before a general election, with no other policy commitments other than obtaining an extension.

Anyone whose opposition to a No Deal Brexit (or to any Brexit) is an absolute priority must find this proposal attractive.

Some will aver that a further referendum is preferable to a general election.

Others will be Meat Loaf opponents of a No Deal Brexit (or to Brexit) and say they will do anything, but they cannot support a Corbyn-led government.

(And Corbyn’s supporters are just as much Meat Loaf Remainers if they cannot support an alternative figure leading a government of national unity (or GNU) for the purpose of an extension.)

Corbyn is the Leader of the Opposition and so if the current government fails to win the confidence of the house of commons then, constitutionally, he is entitled to first dibs at forming a new ministry.

Again, this is not to say that there could be a better alternative prime minister, and a majority put together by other means.

But Corbyn’s offer is the easiest approach and it requires fewer things to align.

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Will it happen?

One recurring problem with Brexit is that the good is the opposite of the best, and purist positions are maintained where compromise would be more sensible.

And many would be offended at the prospect of a Corbyn-led government in any situation, and so would prefer a No Deal Brexit under the current government.

That is a matter for politics (and politically there is merit in a hostile view, and the record of the main opposition party on anti-semitism, for example, is dreadful).

But from a non-partisan practical law and policy perspective Corbyn’s offer is, as of today, the path of least resistance to avoiding a No Deal Brexit (and also to avoiding Brexit itself).

Anyone for whom stopping either a No Deal Brexit or Brexit altogether is an absolute priority should support it – at least until another viable option comes along.

**

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The Myth of Retrospective Remaining

12th August 2019

Marriage à-la-mode: 6. The Lady’s Death, by William Hogarth

(Source: Wikipedia)

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There is a view gaining some traction among those who support the United Kingdom remaining in the European Union.

The view is that after 31 October 2019 it may be possible for the UK parliament to retrospectively annul the Article 50 notification so that the UK can be regarded as never having left.

This view is false.

To understand why the view is false, one first can go to Article 50 of the Treaty on European Union, which many will know provides for how a member state can unilaterally leave the EU.

The relevant part is in Article 50(3):

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The significant phrase is at the beginning:

“The Treaties shall cease to apply to the State in question…”

This describes the position at international law.

The member state on departure shall cease to be party to the relevant treaties which govern EU membership.

The member state is out; a former member; a member no more.

The member state is then a “third country” as much as any other non-EU member.

This is the public international law equivalent of a decree absolute ending a marriage.

The marriage is over.

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But so used are UK pundits and politicians to the supposed omnipotence of the UK parliament, it is believed that somehow this departure can by legal magic be disregarded.  That the UK can, by some legal fiction, be deemed never to have left.

It will be too late.

The door has shut.

The cat, the horse and the genie are out of their respective containers.

No loud tearful banging or elaborate legalistic ruses can reverse the legal event of departure.

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Once a member state has left the EU then there is only one way back in – the perhaps soon-to-be-famous Article 49.

Article 50 itself, at (5) provides that Article 49 is the one means of return:

“If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

This process would likely be a slow process, and even if the UK were eventually successful, there would be considerable doubt whether the rebate and various opt-outs would resume.

Some would question whether the UK would meet the Copenhagen Criteria.

And, as with the Article 50 revocation notice, an Article 49 application can be unilaterally revoked by the state in question at any time.

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To place any reliance on the UK parliament retrospectively asserting it was an EU member after its departure under Article 50 is dangerous and delusional.

There can, of course still be an agreed extension of time, and the departure date can also be varied by agreement of the UK and EU27.

There can also be revocation of Article 50.

There are real options for UK politicians seeking to avoid a departure for the EU on 31 October 2019.

These options remain open, regardless of the breathless fanaticism of those in and close to the current government.

And these are the options that should be being taken seriously, rather than believing in a Remain breed of unicorn.

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The impact of another General Election on the Brexit process

 

26th July 2019

The Polling from The Humours of an Election series, by William Hogarth, 1755 (Source: Wikipedia)

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Yesterday this blog averred that the new Cabinet was not one that one could expect to implement policy effectively.

The day before this blog set out that the same three options of deal, no deal and revoke remain, and that the United Kingdom will leave the European Union by automatic operation of law on 31st October 2019 unless

  • the current deal becomes acceptable (unlikely),
  • there is a revised deal (also unlikely),
  • there is revocation of the process (the right thing to do, as the approach so far has been botched, but again unlikely), or
  • there is yet another extension (not in the gift of the United Kingdom, and the new Prime Minister is explicitly against this).

And before then, this blog explained that “ruling out a No Deal Brexit” was myth and cannot be done unless a deal is accepted or Article 50 is revoked.

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This is a law and policy blog, not a political one. 

But, for completeness, I should explain the difference a possible general election would have on the options above.

A general election would make no difference to the options above.

(At least not directly.)

Whatever the result of a general election (and only a fool would predict the result given the rush of unexpected political events we have had in the last few years), the wording of Article 50 stays the same, the current deal remains on the table, there is no real prospect of a modified deal before 31st October 2019, and extensions will remain outside the United Kingdom’s control.

To paraphrase Edmund Blackadder, “after the chaos of a general election, we [will] return to [ab]normal”. 

The same few choices for the United Kingdom will be there the morning after, and the United Kingdom will just have wasted more time.

The only (indirect) difference is that an extension would be likely for the purpose of a general election.

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This, however, is to take a strict law and policy perspective.  

Of course, in political terms, a general election can change everything: one can envisage a new administration headed by a Labour or Liberal Democrat, or even a coalition of the able and sensible from all parties (imagine that). 

And this in turn could mean a fundamental shift in Brexit policy (and imagine that).

The same law and policy choices would be there, but there could also be a fresh political approach (and just imagine that).

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The Ministry of All the Talentless

25th July 2019

James Gillray’s Charon’s Boat—or—the Ghosts of “all the Talents” taking their last voyage, 1807 (source: Wikipedia)

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“It was very good of God to let Carlyle and Mrs Carlyle marry one another, and so make only two people miserable instead of four.”

– Samuel Butler

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Many will have Very Strong Opinions about the new Cabinet, but from the non-partisan perspective of policy, it seems weak.

Given that the current governing party has been in power for nine years, such policy and ministerial inexperience is perhaps remarkable.

In terms of policy and ministerial experience, the new Cabinet seems like one of an incoming party from a spell of opposition.

Some will say that Michael Gove was successful at implementing policy at Education and DEFRA (and her certainly had potential as a Justice secretary, had Brexit not intervened), but he appears not to have been given a departmental job.

And the appointment of Robert Buckland at Justice is a good one, and he has been a good junior minister.

But otherwise?

As someone said on Twitter, perhaps this is not a bad thing.

If there is to be bad or vile public policy, it is better to be in the hands of incompetents rather than competents.

There was once an administration known as the “Ministry of All the Talents” (though it did not last long).

This is the opposite: we now have the Ministry of All the Talentless.

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Brexit and the new Prime Minister

24th July 2019

Today there should be a new Prime Minister.

The new Prime Minister is a person about whom many (including me) have Very Strong Opinions.

But regardless of the character and personality of the new Prime Minister, what can usefully be said about the appointment and Brexit?

The United Kingdom continues to be a full member of the European Union.

That membership, however, is set to end on 31st October 2019, just under one hundred days away, by automatic operation of law.

This departure from the European Union can be delayed or averted, but only if one of three things happen.

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First, there could be a further extension.  There has already been two.  When the current extension was granted, the United Kingdom was warned not to waste time.

The United Kingdom, however, has wasted time.  There has been no real preparation for “no deal” and the deal on offer has made no further progress.

The governing party has been preoccupied with a leadership election, as have the political and media classes generally.

An extension required unanimous support from the twenty-eight member states.

In theory, say, Malta or Cyprus could even say no, and that would be enough for there to be no extension.

And unless there is a good reason, the United Kingdom may not get another extension, especially given how it has wasted this one.

**

Second, there could be a deal which provides for a new departure date.

This would require revisiting the draft agreement and perhaps converting the current transition period to a limited period of further membership (and this would solve a range of technical problems).

There could even be an agreement for continued membership until a future relationship agreement was in place (and this would address the backstop problem sensibly).

But again, this is not in the gift of the United Kingdom. 

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Third, there is revocation.

A sensible government acting in the public interest (ho, ho) would revoke Article 50 and accept the current exercise is botched.

Brexit-supporters should be told to come back with a better plan.

This, of course, is unlikely but it is the only exception to departure on Hallowe’en which is in the United Kingdom’s gift.

The new Prime Minister would not want to revoke the process – but it is the only way to “stop a No Deal Brexit” which is entirely within the control of the United Kingdom.

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The options above would be the same for any new Prime Minister.

The character and personality of the new Prime Minister will distract many for a while, but the structure of the current situation will continue to be the same.

As it stands, the prospect of a No Deal Brexit on 31st October 2019 is a real one – an outcome in my view which is more likely than not.

The other outcomes require support from the European Union or a revocation decision.  These outcomes are possible, but there is reason to doubt each one will now happen.

**

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Brexit and Conservatism

5th July 2019

The Conservative Party has long been a mix of ideologues and pragmatists.

The pragmatic tradition was strong – associated with RA Butler and politics being the art of the possible.

Even Margaret Thatcher was far more pragmatic in policy – at least before 1987 – than her fans both at the time and since would admit.

But that pragmatic tradition seems to now be weak.

There are still a few sensible senior Conservatives, even Ministers, but they appear powerless in the face of shouty populism.

Applied to European Union matters, Tory pragmatists once wanted to make things work.

In the 1980s the (in my mind) second most significant Conservative politician of the time – Lord Cockfield – pushed forward the Single Market in a practical and sustainable way rather than through grand design and heady rhetoric. 

My January 2017 FT piece on Lord Cockfield is here. In it I said:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter. In 2016-17, the entire government has produced nothing other than platitudes and unconvincing excuses for secrecy.

“The UK may have had a Cockfield to put the single market in place, but it certainly does not have one to take the UK out of the EU.”

This is still the case, over two years later.

Brexit could have been done (regardless of the merits of the idea) but it needed a realistic and unideological approach.  

No silly speeches, no daft “red lines”, no loud promises of the impossible just so as to get claps and cheers from grinning idiots.

Instead, Brexit was done in perhaps the worst possible way.

How this came to happen will be a matter for debate and reflection long after the current events are over.

But one remarkable thing is how the Conservative Party which once valued unshowy pragmatism ended up so shallow and ineffective.

And another remarkable thing is that, three years after the referendum, Conservative MPs and members are set to elect as leader a politician who personifies the very shallowness and ineffectiveness of its Brexit policy.

Getting policy wrong is bad – but not learning any lessons whatsoever is arguably worse.

Many people reading this post will not be Conservatives (and may even have Very Strong Opinions on that party). 

But I am not (and this blog is not) party partisan: there are good and bad in most mainstream political parties.

My point is that it is sad and unfortunate that the political party which in a matter-of-fact way took the UK into the EEC, drove forward the Single Market, sponsored enlargement, and was a useful brake on the the heady excesses of the EU project, has become such a shambles.

The Conservative Party is no longer about the art of doing the possible, but about the artlessness of promising the impossible.

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The myth of “ruling out a No Deal Brexit”

4th July 2019

The ship of fools, depicted in a 1549 German woodcut

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There is a misleading and unhelpful phrase now in common use among politicians and pundits discussing Brexit.

The phrase is “ruling out a No Deal Brexit”.

Often you will read or hear that the House of Commons has ruled out a No Deal Brexit, or will rule out a No Deal Brexit, or should or should not rule out a No Deal Brexit.

The phrase is being used so casually that you would get the impression that the phrase was meaningful.

The phrase, however, shows a misunderstanding of the predicament that the United Kingdom is in.

A No Deal Brexit cannot be ruled out, at least not in isolation.

The House of Commons could vote against a No Deal Brexit, resolution after amendment and so on, until their faces are fully blue – and by those votes would have no effect.

A No Deal Brexit can be avoided, but only as a by-product of another positive act – acts which dare not speak their names.

The starting point, as most of you will know, is that the United Kingdom is set to leave the European Union without a withdrawal agreement by automatic operation of law on 31st October 2019.

That is the default position; nothing more needs to be done; the ball rolls off the table.

That default can be defeated only in three ways.

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One: that the current (or an amended) withdrawal agreement is approved by the UK Parliament and the European Parliament before 31st October 2019.

The problem with this is that the deal has already been rejected by historic majorities by the House of Commons, and there is no time and little inclination by the European Union to revise the current deal on offer.

A deal in place on 31st October 2019 is possible in theory, but there is little basis in reality (at the moment) to see it happening.

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Two: that there is a further extension to the Article 50 period.

This is the most likely in practice but – and this should never be discounted – it is not a matter of the United Kingdom Parliament.

An extension can only be given at the request of the departing member state and then with the unanimous consent of the remaining EU27.

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Three: revocation.

Strictly, this is the only one of the three ways that is in the gift of the United Kingdom.

A departing Member State can revoke the Article 50 revocation at any time before exit – according to the European Union Court of Justice.

This would certainly rule out a No Deal Brexit.

Indeed, it would rule out any Brexit – at least in the short to medium term.

A revocation has to bring the departure process to an end – not just stop the clock (although how this stipulation would be enforced in practice is another question).

*

Unless one of these three means are adopted, it is impossible to “rule out” a No Deal Brexit, and only one of them is entirely within the control of the United Kingdom (though if the current deal was accepted, there is little doubt the European Parliament would also approve it).

So when you hear a politician or pundit assert that a No Deal Brexit must be “ruled out”, there is one simple question.

How?

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