1956: The Attorney General’s Suez file

December 27 2016

The year about to end, 2016, is the 60th anniversary of the Suez crisis—something I’m surprised hasn’t had more coverage and comment. The Suez crisis is of legal interest because of the way the Attorney General Sir Reginald Manningham-Buller’s view (that Britain’s military intervention could not be justified in international law) was ignored by the Prime Minister in favour of the more convenient legal advice of the Lord Chancellor Lord Kilmuir—Sir David Maxwell-Fyfe, as he’s better known to many of us.

So over the coming days, I’ll be reproducing (with the permission of the image library of the National Archives) documents I’ve found in the Attorney General’s 1956 Suez file at the National Archives in Kew relating to that famous legal dispute.

These documents are not new: they’ve been in the public domain at the National Archives for some time, and were reported on some years ago. But I want to make freely available in full, perhaps for the first time, some of the key documents setting out the legal dispute over Suez and the Attorney General’s discomfort at being, in effect, ignored.

I’ll begin today with a letter and memo from the Attorney General to the Lord Chancellor from October 1956. Then, over the next few days I’ll be posting further correspondence between the government’s two top lawyers plus letters to the Foreign Secretary and the Prime Minister, among other legal and ministerial correspondence.

If you’re as interested in political and legal history as I am, I hope you’ll enjoy reading the legal arguments and concerns of 1956 in ministers’ own words.

2016-12-27T15:16:42+00:00Tags: , , |

Why the High Court got the law wrong about Brexit

November 4 2016

Some reactions to the High Court’s judgment in the article 50 case, R (Miller) v Brexit Secretary, have been ugly, excessive and ridiculous. It’s excessive too to see the judgment as blocking Brexit, or as creating a constitutional crisis. It does neither thing. I’ve no doubt that if the judgment is upheld on appeal to the Supreme Court, the government will obtain the one-clause bill it’d need authorising it to give notice of Brexit under the famous article 50.

But the judgment is surprising (I expected it’d agree with my view), it’s problematic, and I think it’s wrongly decided. Here’s why. I’m afraid my explanation is long: but I think it needs to be.

The basic flaw

In broad terms, what’s happened is that two recently discovered or “upcycled” legal doctrines—the theory that there is a higher class of “constitutional” statutes and what’s called the “principle of legality”—have combined with, I think, confusion about the effect of the European Communities Act 1972, and created a heady and intoxicating legal brew. Deeps draughts of that stuff have impaired the bench’s judgement so much that they’ve thought constitutional principle required them to take and upside-down approach to statutory interpretation, and read the 1972 Act in a way Parliament can surely never have intended either in 1972 or since.

The underlying principle

First, it’s important to be clear what legal principle the judges have tried to give effect to. It’s not that there’s anything really unusual about article 50 that means ministers can’t “trigger” it using prerogative powers, or even that doing so would deny people their rights. It’s a much broader constitutional principle that the court derives from the 1610 Case of Proclamations (paragraph 27 of yesterday’s judgment) that the executive by prerogative

cannot change any part of the common law, or statute law …

and from the Zamora case in 1916 (para. 29 of the judgment):

The idea that … the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution.

That’s worth remembering: the High Court thinks triggering article 50 would change the law in this country, and that no change to the law of any kind can be made by doing so. The principle is much wider than, for instance, one that only protects fundamental constitutional or human rights. But almost immediately after explaining it, the court undermines it by accepting (para. 33) that

treaties can have certain indirect interpretive effects in relation to domestic law …

Which they certainly do. The courts presume Parliament to legislate in accordance with the UK’s international obligations which means, if you think about it, that merely entering into a treaty alters our law here to some extent. But, the court says (§33)

this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.

But the exception surely does blow a hole through “the basic position” as outlined by the High Court. Judges themselves have said international obligations alter to some extent the law in this country.

EU law rights

Next, let me turn to what I think are the court’s misunderstandings about the EU rights, and the effect the 1972 Act had in bringing them in to our legal system. First, the court at §34 says

a direct link exists between, on the one hand, rights and obligations arising through action taken on the international plane – by entry into and continued membership of the … [EU] … and creation of EU law in the relevant Treaties and by law-making institutions of the European Union – and, on the other, the content of domestic law. This is the result of a combination of principles of EU law, including principles of direct effect of EU law in the national legal systems of Member States, and the terms of the ECA 1972 …

On its face this is unobjectionable; but I wonder whether underlying the judgment is an unspoken assumption that the EU law concept of direct effect makes these treaties and this legislation unique by giving EU law some independent status in our own law. That’s certainly not right: it’s only by artificial statutory domestication of the concept of direct effect through the ECA 1972 that EU law has effect here. The passage I’ve just quoted leaves some room for doubt about how clearly the High Court saw this, and my slight doubt are increased by §42 of the judgment where I think the court may not be quite right to imply EU law requires the concept of direct effect to be explicitly transposed into national legislation.

The judges go on to set out (§§57-66) three categories of “rights” they say are relevant. The first, “category (i)” are rights like equal pay or working time restrictions that can be replicated nationally. This is unproblematic. The second, “category (ii)”, are rights British citizens enjoy in other countries because of EU law, such as the right to take a job in France and not be discriminated against. It’s far less obvious why the court thought these rights—which cannot possibly exist in our domestic UK law—are relevant. The third “category (iii)” is what you might call pure institutional EU rights such as the right vote for MEPs or to ask a court to refer a point of interpretation to the European Court of Justice.

The High Court says article 50 notification would remove category (i) rights, but of course it would not: there might be a “soft Brexit” in which many of those rights are actually retained. It’s interesting that (§64) that the court needs to bolster its reasoning by referring to the ancillary loss of the category (i) right to ask for a reference to the ECJ.

But the reasoning of the court concerning category (ii) rights is very odd. These are plainly nothing to do with UK law or with Parliament: your or my free movement rights in France derive entirely from whatever effect the EU treaties have or are given in French law by French legislators and courts. And the High Court admits (§66) that

In a highly formalistic sense, this may be accurate

which is now my favourite euphemism for “it’s right but I reject it”. The High Court is quite correct (§66) to say

withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights

but what’s wrong, bearing in mind the constitutional principle underlying the judgment, is to think undoing category (ii) rights would change UK law in any way. It wouldn’t.

Only category (iii) rights actually fit unproblematically into the court’s analysis. They would undoubtedly and necessarily end at the moment (not of article 50 notification, but) of Brexit. So the court’s reasoning is actually based on the extinction of fewer rights, and the alteration of less UK law, than it seems. And it really only comes down to EU citizenship and the right to vote for MEPs or stand as one. The supposed right to ask for a reference to the ECJ is actually a power for courts to decide to make a reference. It’s not a substantive right at all, but just a procedural right to make an argument in a UK court.

An intriguing point, in passing

It’s interesting at this point to look at §70, which mentions without judicial comment that the European Parliament became directly elected in 1979. One wonders, if the High Court is right, what legal power the government had in the 1970s to agree to the change before MPs passed the legislation. Remember, it’s not just prerogative action that (in the judges’ view) removes rights that they say’s unlawful; the idea is that it’s unlawful by prerogative to alter the law in any way.

The real meat of this judgment, though, and where it really goes astray, is in the discussion on statutory interpretation from §77 and especially from §82.

Interpretation, and the two questionable principles

At para. 44 the court had mentioned the principle put forward by Lord Justice Laws in Thoburn that the ECA 1972 is a “constitutional statute”, with the technical legal consequence that it can only be amended or repealed explicitly. That’s always been an unconvincing theory, not much backed up by subsequent cases from higher courts. Frankly, it’s wrong. The way the ECA 1972 interacts with later statutes is (as seems to me obvious) because of its wording and what Parliament must have meant by it, rather than its status. But even if it’s right, Laws’s “constitutional statute” theory is limited to shielding the 1972 Act from accidental repeal.

In yesterday’s judgment, though, the thought seems to have grown into a wider proposition (that I detect underlying §§81-88 of the judgment) that a cross-cutting constitutional principle must implied into a “constitutional statute” that neither Parliament except by express words nor government can do anything that would on any view affect it in any way at all. It finds eventual expression in §88:

Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.

This is I think a vague and unjustified expansion of “constitutional statute” theory. Even if Laws LJ in Thoburn was right, his principle was about the way later legislation affects the 1972 Act. It has nothing to do with the prerogative.

This expansion of “constitutional statute” thinking has happened because the court has mixed it with the “principle of legality” that’s especially fashionable at the moment (in Evans in the Supreme Court, notably). According to that principle, which Lord Browne-Wilkinson traced in Pierson to academic writings and to a series of cases in the 1980s and 1990s, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention.

Extraordinarily, the High Court has now reversed the principle in such as way as to presume that Parliament in 1972 did change the common law (by curtailing prerogative powers) although there are no clear words in the 1972 Act doing so.

It’s clear, then, that the heart of the problem in the judgment is the “flip” the court makes in §84 onwards, when it rejects the argument that

language would need to be found in the ECA 1972 before it could be inferred that Parliament intended to remove the Crown’s prerogative power

and concludes the opposite, that clear language would need to be found preserving the prerogative. This is, in my view, the fundamental flaw in the High Court’s reasoning.

The Rees-Mogg case

At §§90-91 the High Court distinguishes the Rees-Mogg case that I think raises the same essential issue as article 50. It does so by saying Rees-Mogg was not a general ruling that prerogative powers had survived the 1972 Act, but held merely that ministers could ratify the Maastricht treaty by prerogative because the social protocol did not change UK law.

Frankly, this is an implausible and untenable reading of the Rees-Mogg case. It’s plain if you read the judgment that what the High Court calls the “nub” of the reasoning in Rees-Mogg was actually a back-up argument bolstering its primary legal conclusion, that

When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms … There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the E.E.C. Treaty.

Finally, paragraph 93 of yesterday’s judgment is odd. In it, the court identifies what it sees as textual support for its interpretative approach—but the points it makes are unpersuasive. Its point (3) in particular is very opaque. And what need, anyway, for textual support to bolster a reading that (according to the judges’ reasoning) follows implicitly from constitutional principle? Paragraph 93 reads, to me, like a suspiciously overdetermined and thin belt adding little to the courts’ already dodgy braces.

I wish I thought the Supreme Court would reverse it

If this judgment is correct, its consequences are, I think, radical and surprising. If in 1972 Parliament really did end the government’s power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers has been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up at Amsterdam to the Social Chapter? The High Court implies in its treatment of Rees-Mogg that he had no prerogative power to do so.

The list of worrying consequences goes on. What power have ministers ever had to agree in Brussels to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful—and that, to act lawfully now, we must all behave as if Britain were still in the European Community as it existed on 1 January 1973, before ministers by prerogative “unlawfully” made any changes. The solution to this conundrum can’t be that Parliament later “cured” ministerial unlawfulness by confirming the changes they’d agreed; if that were the answer, then the government’s planned “great repeal bill” could cure the supposed unlawfulness of article 50 notification.

I wish I thought the Supreme Court would reverse this—a judgment that’s tempered the twin edges of constitutional statute theory and the “principle of legality” and made of them a weapon that can be aimed at Parliament as it was, yesterday, at government. But the Supreme Court likes the principle of legality too much. We can hope for some dissent there, but I expect it to uphold this wrong turning in constitutional law.

2016-11-05T10:37:16+00:00Tags: , , , , , , |

R (Miller and others) v Brexit Secretary: the claimants’ argument

October 13 2016

Today the “article 50” challenge begins in the High Court. The claimants in the judicial review case want the court to order that government cannot lawfully decide to give notice of Brexit under article 50 of the Treaty on European Union unless Parliament first authorises it to do so by statute. As counsel for the claimants get on their feet to make their case this morning, here’s my brief analysis of what we know of their case from the “skeleton argument” of one set of interested parties to the case: you can read it and my detailed comments on it in the reader below, or by clicking at the bottom left corner on to “full screen” mode.

Essentially the claimants make three arguments (see para. 6 of the skeleton):

  • the government’s common law prerogative power to withdraw from the EU treaties has been impliedly put in abeyance, or suspended, by legislation—in particular the European Communities Act 1972, but also the European Union Act 2011 and devolution legislation such as the Scotland Act 1998; this is ground 1;
  • even if the prerogative power remains, it may not be used to modify fundamental rights such as EU citizenship; this is ground 2;
  • even if prerogative power can be used to remove EU citizenship, it’s an abuse of power for it to be used to “trigger” article 50; this is ground 3.

Ground 1 is the argument originally put forward by Barber, Hickman and King, and which I wrote about here. (There seems to be a problem with the link: I’m sorry. Until I can solve that, please scroll down to June 27 where you’ll find my post).

I agree with those like Mark Elliot who see this as a flawed and ultimately unsustainable argument. In my view it confuses two separate legal systems, merging the international law plane (on which the government will give notice under article 50) with the domestic law plane (on which Parliament will or will not make changes to our internal, national law to give domestic effect to Brexit). It is this confusion or merger that allows it to be said, in my view wrongly, that triggering article 50 would have automatic legal effects in the UK. It wouldn’t.

Here, the argument is boosted by reference to devolution legislation and the Acts of Union between England and Scotland—but I don’t think the devolution angle really adds significant weight to it—as well as to the Bill of Rights 1689. But giving article 50 notice would not suspend any internal laws in the UK, so the Bill of Rights point is not in my view a good one.

The “citizenship rights” argument—ground 2—is interesting, but ultimately suffers from the same defect of assuming article 50 has automatic legal effects. Article 50 notification will not remove anyone’s EU citizenship: if that happens, it’ll be done by a subsequent UK-EU withdrawal treaty and by an Act of Parliament giving effect to it.

I don’t think ground 3 really adds anything. In essence it is that triggering article 50 under the prerogative would thwart Parliament’s purpose in statute, strip its legislation of meaning and reduce its role to a formality. But this is, I think, really just another way of stating ground 1. Again, it’s the mere existence of the ECA 1972 and other legislation that, according to the argument, makes this use of the prerogative necessarily abusive. This is to all intents and purposes the same as ground 1, which says their existence suspends the prerogative as regards article 50.

I find it hard to see how these arguments can succeed in the High Court. Let’s see if the claimants’ legal teams can prove me wrong.

2016-10-13T23:27:32+00:00

Legal Cheek interview: Julian Assange, and Labour in the Court of Appeal

August 11 2016

I spoke to Legal Cheek’s Katie King this afternoon about today’s Julian Assange news and the Labour party’s appeal, heard today, against the High Court’s ruling that it must allow members signed up in the last six months a vote in the current leadership contest. We talked for about a quarter of an hour.

I can exclusively reveal that Legal Cheek insists on Earl Grey tea. A land law tome (not Katie’s own, I must make clear) was suspiciously pristine; but I’m pleased someone has at least put loads of colourful tabs in a thick work on company law.

2016-08-11T18:14:14+00:00

Last night’s UCL event—Brexit: Legal & Constitutional Requirements

July 14 2016

Last night University College London hosted a discussion on Brexit and the law, featuring Dr Tom Hickman and Professor Jeff King (co-authors with Nick Barber of the famous article 50 blogpost) together with Professor Piet Eeckhout, Dr Virginia Mantouvalou, Professor George Letsas and Dr Ronan McCrea.

I was far from convinced by some of the constitutional theorising last night about the illegitimacy of the EU referendum and the human rights arguments made against Brexit. Nor am I persuaded by Hickman and King’s argument on article 50. But it was fascinating to hear them defend their position, including against a provocative and maybe slightly bonkers point from me (at about 1 hour 21 minutes).

Joshua Rozenberg was in the chair. I must congratulate UCL not only on the event itself but on having so impressively livestreamed it on the web and published this video so quickly.

2016-07-14T15:54:53+00:00

Can Jeremy Corbyn be kept off Labour’s leadership ballot?

July 11 2016

This is the question in the minds of practically everyone in the Labour party today, as Angela Eagle announces her leadership challenge following MPs’ recent overwhelming vote of no confidence in the leader. The future of Labour politics and, in the short term, of British politics as a whole may rest on this technical—and ultimately legal—question.

My answer is yes, he can lawfully be kept off the ballot paper that goes out to Labour members—even though the rules framework as it stands entitles him to take part in the contest. I’d better explain.

What Labour’s rule book says

The first thing we need to do is look at Labour’s rule book. Here’s a fully up-to-date, 2016 version. Click at the bottom left if you want to see it in full screen view.

The key provisions are in Chapter 4, Clause II; and we’re particularly interested in Clause II(2)(B), which deals with the nomination stage of the process. It says

B. Nomination

i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 15 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

ii. Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference. In this case any nomination must be supported by 20 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

On the face of it, it seems clear that the rules make provision for two very different situations: first, where there’s a vacancy for the leadership and second, where there’s not. There’s quite often a vacancy for the Labour leadership, the last time being when Ed Miliband resigned. We are now, though, in the second situation because Jeremy Corbyn has very much not resigned. So the relevant provision is Clause II(2)(B)(ii). By the way, the convoluted and unsatisfactory nature of these rules will I think underline the point that legislation, drafted by professional legal drafters, is in comparison clear and concise.

In my view, Clause II(2)(B)(ii) can only be read as requiring that challengers are required to be nominated by 20% of MPs and MEPs, but that the incumbent leader being challenged does not.

Mark Henderson’s advice

This is also the conclusion reach by Mark Henderson of Doughty Street Chambers, whose advice you can read below (with the odd top or bottom of a page missed in photocopying).

If you’re seriously interested in this question you simply must read Mark Henderson’s advice, which deals with the question of interpretation of these rules in much more depth than I am able to here. His advice is very thorough and well reasoned, looking in detail at the approach the courts are likely to take to a contract such as this—and the rule book is indeed in law a contract between the members of an unincorporated association called the Labour party. I agree with Mark Henderson.

I’ll now turn to some of the arguments people are making in opposition to my view and Mark Henderson’s.

Inconsistent drafting

It’s quite true that the rules are badly drafted and include some apparent inconsistencies. For instance, clause II(B)(v) says

v. Valid nominations shall be printed in the final agenda for Party conference, together with the names of the nominating organisations and Commons members of the PLP supporting the nominations

which some people will contend means that all the candidates including the incumbent must be “nominees” meeting the 20% threshold—otherwise the incumbent’s name would not be printed in the conference agenda. And clause II(C)(x) which says

x. The votes cast for each nominee shall be recorded and published in a form to be determined by the NEC as soon as possible following any election

can also be argued to suggest that all the candidates must be nominees, otherwise no one could vote for the incumbent.

But there are problems with these arguments. As far as clause II(C)(x) is concerned, the word “nominee” is used only once in clause II(C), while the word “candidate” is used three times. “Nominee” can only be a drafting error when “candidate” was intended.

By the way, we know there are simple drafting boo-boos since clause II(B)(v) still refers only to “Commons members of the PLP” rather than reflecting the change to include MEPs. I don’t think anyone would seriously try to argue that this means only MPs’ nominations count towards the threshold, in spite of the clear wording of clause II(2)(B)(ii).

More importantly—and this deals with both clause II(B)(v) and clause II(C)(x)—there is no reason to think the incumbent is not and will not be a “nominee” even without having to reach the 20% threshold. It is only potential challengers who have to reach the 20% threshold under clause II(2)(B)(ii).

Other arguments that Corbyn must meet some threshold

I’ve heard three arguments in favour of a reading requiring Corbyn to reach some “nomination threshold” of either 15% or 20%. I want to quickly deal with them before turning to what I think the actual solution is.

The “Kinnock precedent”

The last time anyone challenged an incumbent leader when there was no vacancy was in 1988, when Tony Benn challenged Neil Kinnock, a futile challenge most in the Labour party thought an unwelcome irritant that the rules should never have been permitted. Some say that, because Kinnock needed nominations then, that’s a significant “precedent”, and that we must therefore read the rules now as requiring Corbyn, too, to reach a certain threshold.

The big difficulty with this argument is that 1988 has no precedent value whatever given that the rules have been changed since then. In 1988, the rules made no distinction between the “vacancy” and “no vacancy” situations, and the changes made since have clearly all been intended to make challenging an incumbent much harder. That’s not just the increase of the threshold to 20% (it was just 5% when Tony Benn challenged) but the insertion of the words “by potential challengers” in 2010. To use 1988 as a “precedent” is like trying to argue that MPs alone should take vote in the leadership election because that was what happened when Michael Foot won in 1980. It just doesn’t work.

The “vacancy argument”

Some have argued that in the current situation there is actually a vacancy, either because of the no-confidence vote or because the mere fact of a challenge creates a vacancy. Neither argument works.

If the mere fact of a challenge in itself created a vacancy, then you’d have the bizarre situation where Angela Eagle began needing 20% but then suddenly needed only 15% instead, under clause II(2)(B)(i), either the moment she announced her challenge or when she’d already got 20%. There would never be a “no vacancy” situation and clauseII(2)(B)(ii) would have no meaning. This is obviously wrong.

Nor does the no-confidence vote in itself create a vacancy. Clause II(2)(E)(v) explains what’s meant by a vacancy situation:

E. Procedure in a vacancy …

iv. When the Party is in opposition and the Party leader, for whatever reason, becomes permanently unavailable, the deputy leader shall automatically become Party leader on a pro-tem basis. The NEC shall decide whether to hold an immediate ballot as provided under E above or to elect a new leader at the next annual session of Party conference.

Jeremy Corbyn may be out to a vegetarian lunch but he’s not “permanently unavailable” and Tom Watson is not acting leader. We must conclude that there is no vacancy.

David Allen Green’s “timing only” argument

The most ingenious and best argument I’ve read against my view is (perhaps unsurprisingly) from David Allen Green:

This approach reads the two sentences

Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference

and

In this case any nomination must be supported by 20 per cent

as doing different things, the first only imposing a nomination time limit on potential challengers while the second applies to all nominations “in this case” of no vacancy.

It’s a clever argument but I don’t think it works. Why would a time limit be imposed only on potential challengers but not on the incumbent, if he needs a certain number of nominations too? If that were right, what would trigger the incumbent’s need to reach the threshold? A potential challenger reaching it first? In that case, the incumbent might have no time to gather nominations, or might have to do so at the drop of a hat. The mere announcement of a challenge? In that case, if neither a challenger nor the incumbent achieved the threshold, Labour would have no leader. I don’t think this reading of the rules is sustainable, and Mark Henderson takes a similar view.

David has set out his thoughts here. I disagree with his reading of the rules but I agree with him on three key points: that the rules are badly drafted; that it’s open to the NEC to fill any gaps; and that any challenge by Corbyn to a well-drafted and thought-through decision by the NEC to insist on equal requirements for all candidates is unlikely to succeed. The courts will indeed be slow to intervene—but only if the NEC’s own solution does not contradict the written rules.

How to ensure that Corbyn too must obtain nominations

I can now finally turn to how the NEC can solve this. One possible option is for the interpretative question to be referred to the NEC for a conclusive ruling; but the better route is for the NEC to actually vary the rules for the contest.

A conclusive ruling from the NEC

Chapter 1 clause X(5) of the rule book provides as follows:

5. For the avoidance of any doubt, any dispute as to the meaning, interpretation or general application of the constitution, standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination, and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC subject to any modification by Party conference as to the meaning and effect of any rule or any part of this constitution and rules shall be final.

One option, then, is for this dispute about the meaning of the rules somehow to be referred to the NEC, which could then decide that Corbyn needs to reach the 20% threshold. On the face of it, that decision would be the end of it, since the rules say it’d be “final and conclusive”. But two things worry me about this option.

First, what constitutes a “dispute”, and who has the power to refer? I’m not sure an argument on the internet or between two members in a pub is enough. Would some constituent part of the party (a constituency Labour party, say, or an affiliated trade union) need to be in dispute with another? Chapter 1 clause VIII(4) may suggest so. And who makes the referral decision? Can either refer unilaterally? This is important because if the referral were procedurally flawed, the subsequent decision might be ruled invalid by a court, and so not “final and conclusive” at all.

Even if the procedure is impeccable, if a court held that the NEC’s ruling was a perverse one, interpreting the rules unreasonably and contrary to their true meaning, it might well decide it was not a proper “decision” at all, and so, again, not “final and conclusive”. Public lawyers will immediately recognise this as Anisminic-style reasoning. I think variation is the safer, more sustainable option.

An NEC variation of the rules

The rules about leadership elections are all contained in Chapter 4, clause II, which begins in the following way:

Clause II.
Procedural rules for elections for national officers of the Party

1. General
A. The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers.

It’s clear from this that the current rules as laid down in clause II do not automatically apply. They need not be followed if the NEC agrees to vary them. This, in my view, is how the NEC can best resolve things.

The NEC might say that the Labour party finds itself in an unprecedented situation following the overwhelming vote of no confidence in the leader. The rules make no provision for this situation, there is dispute about how the rules should apply and the NEC thinks them unsatisfactory for the purpose. There’s a danger that the procedures could become mired in court proceedings, something no member would want. Therefore, the NEC could say that it’s decided to vary the rules to ensure a fair, transparent, reasonable procedure that is secure from challenge.

The NEC could vary the procedure however it liked, so long as it was reasonable. The big question (assuming it wanted to require the no-confidenced incumbent to seek nominations) is whether the NEC would think it reasonable to treat the post-no confidence situation as akin to a vacancy; or whether it’d see the current situation as more like a “no vacancy” challenge.

If the NEC decided it was right to treat this situation like a vacancy, it might require Corbyn (or all nominees) to obtain a 15% nomination threshold—by my reckoning, 38 MPs and MEPs out of the 230 current Labour MPs and 20 MEPs. This would enable the NEC to say it had retained either the lower threshold for the incumbent leader or even a lower threshold for him as compared with challengers. It is of course more likely that Jeremy Corbyn would obtain 38 nominations than any higher number.

Alternatively, the NEC might decide the no-confidence vote means this is a special, unforeseen and unprovided for variant of a “no vacancy” situation, and that the leader and his challengers should be treated equally. That would require both them and him to reach a 20% nomination threshold—by my reckoning, 50 MPs and MEPs. It’d be harder for Jeremy Corbyn to satisfy this.

True, this route does involve the question of who can seek the NECs “consent” to the variation. It isn’t 100% procedurally safe. But there’s no more procedural risk than’s involved in a referral for an NEC decision, and variation is legally safer. Anisminic reasoning can’t touch it because a variation would not be predicated on an unreasonable or questionable interpretation of the rule book.

Conclusion

I don’t think Labour’s existing rules framework can reasonably be read so as to exclude Jeremy Corbyn from the coming leadership ballot of members. I agree with Mark Henderson. There is a real danger that trying to do so based on the existing rules framework set out in Chapter 4 clause II could be successfully challenged in court.

But the rule book gives the NEC power to vary that rules framework, and it would in my view be reasonable for it to do so in this unforeseen, unprovided for and disputed situation. If it does vary the rules to require the no-confidence incumbent to reach the same nomination threshold as his challengers, I doubt the courts would intervene.

2016-07-11T12:50:56+00:00

Article 50, and UK constitutional law

June 27 2016

If you’ve been following closely news about Britain’s EU referendum and its aftermath, you’ll probably have heard of article 50 of the Treaty on European Union which makes provision for a member state to leave the EU and lays down an extendable two-year period for a withdrawal agreement.

THE TEXT OF ARTICLE 50

Here it is:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

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.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. 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.

THE ISSUES

There’s some debate going on between lawyers and in the media on various legal questions about the article 50 process. Is the government legally obliged to “trigger” article 50? Can it legally do so without a Parliamentary vote? Can the EU take the view that the referendum itself “triggered” article 50? Can article 50 be circumvented, and the UK leave by some other legal means? Can the EU throw us out? Can the UK decide unilaterally when article 50 is “triggered”, if it ever is? I’ll tackle all these questions.

MUST THE UK TRIGGER ARTICLE 50?

The EU Referendum Act 2015 creates no legal obligation on Her Majesty’s Government to leave the EU now, or ever. In a legal sense, the Act was binding in the sense that ministers had a duty to hold it; but the referendum is not binding in the sense that they must do anything about its result. The force of the result is political.  It follows that the UK can “trigger” it if and when it likes.

HOW IS ARTICLE 50 TRIGGERED?

David Allen Green has written about what might in domestic constitutional terms represent a “decision to withdraw” from the EU. It seems to me that the really key step under article 50 is the notification that would (I agree with David on this) be made by some sort of formal communication from the UK government to the European Council, probably a letter from the UK’s Permanent Representative in Brussels to the European Council President, Donald Tusk. In my view the European Council must wait for this step. It cannot “look inside” British constitutional law and decide for itself when the UK has decided to withdraw. All it can properly do is recognise when a step is taken in EU law—that is, the article 50.2 notification if it ever comes.

That does not mean, however, that the UK can simply dictate the timetable, taking as long as it likes for talks and notifying under article 50 when it’s good and ready. That impression was given by Vote Leave, but it was always a naive idea. An elementary point about negotiations is that you can’t actually force anyone to bargain with you. The EU can, therefore, decide that it will only do so once an article 50 notification is made. Unsurprisingly, that seems to be an attractive stance in Brussels and other European capitals. The upshot is that the UK does, in practical terms, have to trigger article 50 if it wants to leave the EU.

What I imagine may happen in reality is that the EU enters into informal preliminary talks once a broad timetable is agreed, including a date for article 50 notification.

IS THERE ANOTHER WAY TO LEAVE?

Not really. Vote Leave argued that the UK could leave under article 48 of the TEU or under article 54 of the Vienna Convention on the Law of Treaties. But either would require the consent of all other EU member states. The UK simply cannot insist on using them rather than article 50.

It is worth noting, though, that the UK could be thrown out of the EU by the other member states under article 60.2 of the Vienna Convention if it was guilty of a “material breach” of its treaty obligations—which, it’s important to realise, will apply after article 50 notification right up to the moment the UK actually withdraws. The relevant parts of article 60(2) and (3) read:

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) The other parties by unanimous agreement to suspend the operation of the treaty   in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties; …

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) A repudiation of the treaty not sanctioned by the present Convention; or

(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

The European Union Law (Emergency Provisions) Bill promised by Vote Leave even before the UK negotiated its withdrawal might well constitute a material breach, given that it’d mean refusing to recognise the jurisdiction of the European Court of Justice. Being thrown out wouldn’t be very attractive, as it’d mean there’d be no agreement for instance about the protection of the rights of British companies and citizens elsewhere in the EU.

MUST PARLIAMENT APPROVE OF NOTIFICATION?

In terms of domestic constitutional law, the government may choose to ask Parliament to vote in favour of article 50 notification—but there is no legal or constitutional requirement on it to do so. Notification would be (in domestic law terms) be done under prerogative powers in relation to international affairs, rather than any statutory authority. The government can just go ahead and do it.

Nick Barber, Tom Hickman and Jeff King have ingeniously argued that government cannot do this alone because of the principles paid down by Coke CJ in the seventeenth century Case of Proclamations and more recently by the House of Lords in R v HomeSecretary, ex parte Fire Brigades Union. Their argument’s interesting, but it won’t wash.

The European Communities Act 1972 (which imports EU law into our domestic legal system) would continue to apply unamended after article 50 notification, which would not therefore alter common law, or statute, or “the customs of the realm”. Nor would it create any criminal offence. The Case of Proclamations simply isn’t relevant.

Nor is the FBU case a precedent here. In that case, an Act of Parliament had laid down a detailed statutory scheme of compensation (as it happens, for people injured as a result of criminal offences; but that detail’s not important for our purpose). Parliament gave a government minister discretion about when to bring those provisions into force. The House of Lords ruled that this didn’t give the minister a legal duty to bring the provisions in; but it did mean he could not use prerogative powers to introduce a wholly different scheme instead of the one Parliament had laid down. The existence of the discretion granted by Parliament meant the prerogative was limited or ousted to that extent.

The situation as regards the European Communities Act 1972 and article 50 notification is very different to the situation in the FBU case, however. The ECA 1972 does not confer on ministers any similar kind of discretion to bring or maintain its own provisions in force, so there is no FBU-style statutory limitation on or “ouster” of the prerogative power to notify.

Nor would notification render the 1972 Act a “dead letter” or render it “nugatory”, as Barber, Hickman and King argue. On the contrary, it would remain fully in force until repealed by Parliament. It’s not even obvious that it’d be repealed on Britain’s eventual withdrawal since, at least according to what Boris Johnson has recently written, Britain might end up abiding by elements of the Agreement on the European Economic Area—which is one of the treaties having effects in our law under the 1972 Act. It’s simply not right to see article 50 notification as negating the 1972 Act, or as hindered by it.

What the House of Commons can do, if it doesn’t like government policy on article 50, is pass a motion of no confidence in the government which (depending on its precise terms) might force the government to resign or else bring about a general election, under the Fixed-term Parliaments Act 2011. Now may be the time to remind you that I wrote an e-book about that Act, which may be tested during the current crisis.

IN SUMMARY

It’s up to the British government alone whether and when to “trigger” article 50. It may ask for Parliament’s approval, but isn’t legally required to. What Parliament can do is force the government to resign or force an election.

It’s not realistic to try to leave the EU in any other way—all we could do to circumvent article 50 would be to get ourselves thrown out without any agreement. And Britain can’t dictate the article 50 timetable. It can delay notification under article 50; but the EU can simply refuse to negotiate with Britain until notification.

Let’s see if it ever happens.

2016-09-07T13:25:00+00:00Tags: , , , , , |

The draft EU (Voter Registration) Regulations 2016

June 9 2016

Here are the draft regulations that will (if approved by resolutions of both Houses of Parliament this morning) extend the voter registration deadline for the EU referendum. Thanks to Rich Greenhill for alerting me to their being online. Click on the bottom left of the viewer to see the draft in fullscreen view—you’ll find some detailed technical comments from me.

As I suggested yesterday the draft regulations amend Schedule 1 para. 4 of the “Conduct Regulations” with the effect of delaying the registration deadline. How they do the trick is not quite obvious on the face of it—nowhere do you see a reference to the 9th of June—because of the (I think unnecessarily) complicated way electoral legislation works. But they modify the application to the referendum of sections 13AB (I missed this in my hurried post yesterday) and 13B of the Representation of the People Act 1983 so that where the 1983 Act mentions “the appropriate publication date” (of the electoral register, that is) and “the fifth day before the date of the poll” it means “20 June 2016”. It’s a complex business (as I tried to explain yesterday) but this does indeed have the effect of extending the deadline by two days. The 20 June is (counting back from the 23rd) the third day before the date of the poll, so you can see how the draft allows registration officers two more days to complete their tasks.

Two technical legal points are worth making. First, the amendment if and when made will be the law as from the beginning of today (because regulations take effect at the start of the day they come into force) but * ** is not drafted retrospectively so as to change the law as from the beginning of 8 June. That means government lawyers are not concerned (as I was) about leaving any arguable “gap” during which some applications for registration were in a legal sense “out of time”. They must be of the view that shoving back the deadline makes all recent applications now in time, regardless of what the legal position was on 8 June. On reflection I think they’re right; while the loose end would have been automatically tied had this amendment been made yesterday, it’s not legally risky enough to be worth tying up today by something obviously retrospective.

Second, the key power being used to make this amendment is in section 4(1) of the EU (Referendum) Act 2015, which is a wide power by regulations to apply the 1983 Act to the refendum with modifications. The power includes (because of section 14 of the Interpretation Act 1978) a power to amend the modifications that have already been made—which is exactly what’s being done today.

That leads me to the legal challenge that apparently Arron Banks is considering, apparently on the basis that the draft is “unprecedented” and “unconstitutional”. It’s a very weak legal argument.

He’s relying on a misunderstanding of the legal concept of precedent, which does not mean (as many non lawyers think) that something’s lawful if it’s been done before, and unlawful if hasn’t. The doctrine of precedent is purely about the extent to which a legal ruling in a court case in the past governs what a court must do today. So the fact that extending the deadline mid-campaign may be “unprecedented” is legally irrelevant. As for the claim that it’s “unconstitutional”, well, we have no higher constitutional law. This is not a legal argument either.

Banks may be getting at an argument that section 4(1) of the EU (Referendum) Act 2015 can’t be interpreted as permitting mid-campaign changes. But nothing in the wording of section 4 implies a “no mid-campaign changes” rule, and as we’ve seen, there is a clear power to amend. Banks must ask judges to read his limitation in. I find it very hard to imagine judges interpreting the legislation as though Parliament in 2015 thought “Ministers must have wide power to adapt electoral law to the referendum” but that “If a problem with a government website arises mid-campaign that could stop people voting, ministers’ otherwise wide power does not extend to solving the problem”. I think it’s a hopeless argument, and I expect soon to hear no more of this legal challenge.

 

*On reflection, I’ve realised the regulation will not be in effect as from the start of today. That’s because they’re said (in regulation 1) to come into force when they are made, which does not specify a day, and so does not attract the rule, under section 4 of the Interpretation Act 1978, (read with section 23(1)) that regulations take legal effect at the beginning of the day on which they come into force. We won’t know what time the amendment is actually signed (and therefore made) by a minister; but won’t be able to apply the “start of the day” rule. Oddly, therefore, it won’t be quite clear how the amendment applies in time. I doubt this matters for any practical purpose, though.

**But Rich Greenhill points out to me that some instruments do actually tell us what time they were made and came into force. Maybe this will be one of them. You learn something every day!

2016-06-09T12:19:46+00:00Tags: , , , , |

How to extend the referendum voter registration deadline

June 8 2016

In response to the overloading of the website where people could register to vote in the coming EU referendum, government is apparently considering how it can extend the deadline (which expired at midnight) by a day:

Mr Cameron said people should continue to register on Wednesday, saying the government was working urgently with the commission to “make sure those who registered today and who registered last night will be able to vote in the EU referendum”.

I rarely criticise legislation: I know how hard it is to draft successfully, and how well it’s drafted by and large. The legislation in this area is seriously opaque, however—so much so that it’s hard even for someone like me (who loves trawling through and cross-referencing the small print in regulations) to work out exactly why June 7 was regarded as the deadline in the first place. The problem is that government makes legal provision for a referendum like this not by drafting bespoke legislation but by a complicated technique of applying to the referendum, with modifications, the already complicated (and often amended) legislation that governs ordinary elections.

The ordinary legislation is section 13B of the Representation of the People Act 1983; the power to apply section 13B with modifications is in section 4(1)(b)(i) of the European Union (Referendum) Act 2015; and the government did exactly this in Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016. If you’ve followed that last link you’ll see exactly how opaque this all is. I think the 7 June deadline is arrived at by adding the five day period set out in section 13B(5) of the 1983 Act and the five day period in regulation 29(4) of the Representation of the People (England and Wales) Regulations 2001 plus the day on which the electoral register is published, all of which must be between the day of the deadline and the day of the referendum itself. Both 5-day periods refer to working days because of section 13B(6), which applies for these purposes section 119(1)(b) and (2). Phew.

All that convolution doesn’t normally matter much because it’s councils, government and the Electoral Commission that have to make sense of it all: they, not the man and woman in the street, are the “users” of this legislation. Nor does it mean amending the law to add a day would be a very complex undertaking. We know the five day period in section 13B of the 1983 is part of the problem, and that we have power to apply any provision in that Act with modifications, so we can simply amend Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016 to change the reference to five days, so that it’s only four days instead—so allowing one more day. The only real question is whether that’s enough time in practical terms for registration officers to do what they need to do, not any huge legal question.

True, section 9(2) of the 2015 Act requires our amendment to be laid before Parliament in draft and voted through by both Houses. But both Houses are sitting today, and could make time for this; and the normal Parliamentary procedures (such as the usual requirement for a scrutiny committee to report on the draft before the House of Lords votes on it) are not legally required and can, where there’s urgency, be dispensed with. The system can move very quickly when it must.

As it happens, under the Interpretation Act 1978, an Act takes legal effect at the beginning of the day on which it comes into force (a rule that also applies to regulations because of section 23(1)) with the result that an amendment passed by both Houses and made by ministers by midnight at the end of today would actually be the law as from midnight at the beginning of today. Legally, there’d be no “gap” period in which any registration application was out of time, and no room for technical legal quibbles arising from that. More obviously retrospective legislation might be required to remove all doubt, if the amendment were made later than today.

Would the amendment spark a dramatic legal challenge from one side of the campaign or the other, risking a postponement of the referendum? I doubt it very much indeed. There’s no doubt Parliament has granted power to make such an amendment, which would therefore not be ultra vires; it could hardly be called unreasonable since the problem was caused by an unforeseen technological glitch; and there would be no unfair procedure in making it. In my view a claim that the minister making the amendment was biased (the Chancellor of the Duchy of Lancaster, Oliver Letwin, made the original regulations) would be utterly hopeless. EU law is irrelevant, and no human rights are involved either. There are, in other words, no real legal arguments on which a challenge could be made.

Even if someone were rich and daft enough to try a judicial review, I’ve no doubt the courts would deal with it very quickly, and have no truck with an application to delay the referendum.

Whether the government should do this is a separate matter, of course; were I the PM, I think I’d do so only after obtaining both official campaigns’ public consent. But that’d be my way of seeking political, not legal, cover. I’m confident government could, anyway, make the change with negligible legal risk. Let’s see if it does.

2016-06-08T14:06:06+00:00Tags: , , , , |

Pannick and Lester on the “British Bill of Rights”

June 2 2016

Lords Pannick and Lester have form for writing together on human rights, and today Pannick writes on the subject in the Times, while Lester comments in The Brief.

Pannick makes fun of the long delay in producing its “Bill of Rights”:

the Chilcot inquiry into the Iraq War, and the assessment of the case for a third runway at Heathrow airport, are each the impetuous and hot-headed rush to judgment of men and women in an unseemly hurry compared to the lengthy deliberations of the Conservative party on human rights.

He thanks Adam Wagner for pointing out that

it is now ten years since David Cameron’s first proposed to replace the Human Rights Act with “a modern British bill of rights”. As leader of the Opposition he gave a speech at the Centre for Policy Studies on June 26, 2006, recognising that “there are huge difficulties and subtleties involved in drafting such a text”. It was, he said, “not a process that can be rushed”. Rushed it has not been.

That’s no surprise, says Lord Pannick:

There is of course a good reason for the delays in coming forward with concrete proposals for a British bill of rights. It is easy to express political platitudes and to pander to popular prejudice. It is much more difficult to produce coherent policies that would improve the present state of the law.

Perhaps, he says

after the referendum, the government’s proposals will finally be published.

Maybe. But as I wrote recently, Theresa May’s call for withdrawal from the European Convention on Human Rights itself may doom the proposals politically.

Lord Lester characteristically defends the Human Rights Act:

We have a good system. Unlike the rest of Europe, we do not empower our courts to strike down Acts of Parliament that are unconstitutional. What we have is more subtle and in keeping with our parliamentary tradition; all three branches of government – legislative and executive and judicial – share responsibility for respecting human rights. The courts have declaratory powers

Conservatives in particular should study what he says. They have long underestimated the HRA, which is itself an intelligently constructed, moderate British Bill of Rights that fits well into our traditional constitution, and represents reform at its best. Lester, like me, clearly hopes its planned repeal may not happen:

The House of Lords EU select committee concluded that there was a “forceful case” for a rethink. Ruth Davidson, leader of the Scottish Conservatives, openly disagrees with Cameron’s government on human rights. The much-trumpeted Bill of Rights was scarcely mentioned in the Queen’s Speech. It has become what Alice saw in Wonderland – a grin without a cat.

Let’s hope it disappears altogether.

2016-06-02T14:32:59+00:00Tags: , |
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