As the Article 50 litigation reached the Supreme Court in early December, sections of the media were already sharpening their knives in preparation for the likely failure of the government’s appeal.
The target of this sharpening was the judiciary. The Daily Mail, for example, portrayed the Supreme Court Justices as ‘eleven unaccountable individuals‘. The paper published a short biography of each judge, ranking them on a scale of one to five for ‘Europhilia’, by which it meant their degree of perceived bias in favour of the respondents’ case.
The explanations for these rankings were frequently risible. Lord Carnwath is apparently a five-star Europhile; the clinching factor, if one were needed, his reputation as an ‘acclaimed viola player and lover of European culture‘. Lord Sumption, on the other hand, is a ‘Eurosceptic‘ because he was once mildly critical of the European Court of Human Rights, an institution which has nothing to do with the European Union. (That he is also a French speaking historian of the Hundred Years War, and owner of a – very lovely – château in Berbiguières in the Dordogne, passed curiously unremarked.)
However, to observe the absurdities of this kind of journalism is not only far too easy but also entirely beside the point. What matters is its mere existence, demonstrating as it does that elements of the media are seeking to recruit the judiciary as combatants in the socio-cultural war which is rapidly becoming the dominant theme of British politics.
For anyone interested in judicial independence and the rule of law, this is an unwelcome turn of events.
Continue reading The Media Coverage of the Article 50 Litigation
The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.
Before saying anything else, there are three initial observations that should be made about this.
The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.
The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.
The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.
Subject to these observations, what did the Court decide, and what does it mean?
Continue reading A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment
Edmund Burke, on being elected MP for Bristol, famously told his new constituents that ‘Your representative owes you, not his industry only, but his judgment’. This was his clever way of saying that he was going to make up his own mind about how to vote in the House of Commons, and not feel bound to do whatever the people of Bristol wanted.
The speech, made in 1774, has stood the test of time. It is the classic statement of an MP’s role in a representative democracy. And its sentiments are embodied in constitutional law – MPs have a duty to make up their own minds, even if they were given a clear message by the electorate in a referendum (see Moohan v Lord Advocate at ).
A lot of people who do not much like the idea of Brexit are placing a great deal of weight on this. They think that the EU referendum is not the end of the matter, that MPs still have to vote on whether the UK should leave the European Union, and that Parliament is in no way bound by the wishes of the majority as expressed in the referendum result.
This has led to the first piece of post-referendum litigation. But how far is it accurate?
Continue reading The Article 50 Litigation – Why the UK Parliament Still Needs to Vote for (or against) Brexit
Referendums present us with apparently simple choices, but the binary nature of the questions they ask masks layers of complexity. Their outcomes are shaped by votes cast with a wide range of motivations, many unrelated to the issue on the ballot paper. They attract protest voting. And they are incapable of answering the follow-on questions to which their results inevitably give rise.
The EU referendum was no exception to these rules. Unpicking the strands which account for the Brexit vote will take time and careful analysis. When the history is written, it will be shown to have multiple and complex causes.
However, this complexity should not be an excuse for ignoring what is already obvious and requires no further study. Some things really are quite simple. The pattern of voting tells its own clear story.
This is that while the referendum question was about the EU, the result reveals less about Europe than it does about the nature of the constitutional arrangements within the UK itself. These, especially in England, are fundamentally unfit for purpose.
The outcome of the referendum was forged not in Brussels, but in London.
Continue reading London, the Centralisation of Power, and the Causes of Brexit
When all else fails, sometimes only fear will do. ‘Though most modern writers and politicians oppose political fear as the enemy of liberty…they often embrace it, in spite of themselves, as a source of political vitality’*.
Fear, both as a basis for argument and a political technique, has been fully in evidence in the EU referendum debate. It has its practitioners on both sides of the campaign. But its most systematic and effective use had been in the strategy adopted by the UK government to argue the case for remaining in the EU.
Until now, this has been facilitated by the law governing the referendum, but as we have entered the last 28 days of the referendum, the same law is now making it more difficult to pursue.
Continue reading EU Referendum – The End of Fear?
The government has announced that the UK will vote on whether to leave or remain in the European Union on 23 June. Aside from that date, here are five other things we learned about the referendum within the last ten days…
Continue reading The EU Referendum – Four Months to Go, Five Things We Learned
The problem with David Cameron’s long-awaited ‘deal’ with the rest of the EU, aside from the fact that it currently exists only as a set of proposals which will require the agreement of all 27 other member states, is that over the last year he somehow contrived to place on it a weight of expectation that it would always be unable to bear.
The proposals, announced by Council President, Donald Tusk, with a heavy-handed Shakespearean nod to the forthcoming EU referendum – ‘To be, or not to be together, that is the question…’ – are bound to disappoint anyone who fancied that they would signal a radical new direction in the UK’s relationship with the wider EU. But that unrealistic expectation also deflects attention from their most important feature.
Continue reading Brief thoughts on David Cameron’s EU ‘deal’