Shortly after Parliament voted down Theresa May’s Brexit deal by a record margin, three Cabinet ministers spent about an hour on a conference call with executives from major UK businesses. The call was transcribed, and it offers a good insight into the relationship between business and government, and what this means for the Brexit endgame.
The House of Commons voted on the EU Withdrawal Agreement shortly after 7.30pm on the evening of 15 January. The government motion to approve the Agreement was defeated, as everyone knows, by the historically unprecedented margin of 230 votes.
After the vote, three senior Cabinet ministers went straight back to Whitehall where, at 9.30pm, they held a conference call with around 330 executives representing businesses with major operations in the UK.
Inevitably, given the number of people involved, someone recorded the call and leaked a transcript to the press – in this case to the Daily Telegraph, which promptly published the text on its website (here, sheltering behind its paywall).
Aside from the pleasure of feeling like an eavesdropper at the Davos conference, reading the transcript offers a genuine insight into the relationship between government and big business, and the likely next steps in the ongoing Brexit saga.
Continue reading Dial B for Brexit – The Government’s Conference Call with Big Business, and the Brexit Endgame
The Withdrawal Agreement in which the UK has negotiated the terms of its exit from the EU is, according to Angela Merkel, a ‘diplomatic piece of art’. And so it looks from the perspective of most European capitals, given how favourable it is to the long-term interests of the EU. Viewed from the UK, however, it represents one of the most abject failures of statecraft in modern British history. This is the story of how and why it got to be so bad that it has achieved the remarkable feat of uniting both ends of the political spectrum against it.
As is now widely acknowledged across political party lines at Westminster, the EU Withdrawal Agreement, in the form that was endorsed by the Council of Ministers on 25 November 2018, amounts to a strikingly bad deal for the UK.
Less coherent than any other available option, it leaves all of the fundamental issues as to the future unresolved, while committing the UK in international law to processes and outcomes that ought to be unacceptable to any democratic nation state. It concedes most of the UK’s original bargaining positions in return for no permanent benefit, and creates a fatally weak basis for negotiations on a future trade deal. In consequence, its adverse political and economic effects are likely to be worse in the long term than the disruption of a ‘no deal’ Brexit would be in the short term.
Moreover, these defects are not the product of the usual give-and-take of negotiation – a tolerable compromise, acceptable to everyone because it fully satisfies no-one. Instead they are the outcome of a series of avoidable decisions, the most important of them made in No. 10 Downing Street by the Prime Minister personally. As a result, the Agreement represents one of the most abject failures of statecraft in modern British history.
The things that are wrong with this deal can be summarised in four main points. But to understand them, and the Agreement itself, it is important to describe briefly how the UK got itself into this mess.
Continue reading The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals
The Court of Appeal in Holmcroft v KPMG upheld the Divisional Court’s judgment that KPMG was not amenable to judicial review on all the facts of the case, but differed sharply in its reasons for reaching that conclusion. Was its rationale any more convincing than that of the first instance court? Not really.
Two years ago, I wrote a piece about the judgment of the Divisional Court in the case of Holmcroft Properties v KPMG – Can a Firm of Accountants be a Public Body?
The title question was rhetorical. The answer is yes because, regardless of the source of its powers, a body can be ‘public’ – and therefore capable of being judicially reviewed – to the extent that it exercises a public function. There is no special exception for big firms of accountants, or anyone else.
However, this obviously begs a further question. When, and in what circumstances, does someone exercise a public function?
On this I was critical of the Divisional Court – not so much because of the outcome on the particular facts of Holmcroft, but because of the inadequacy of the reasoning by which the court got there. Indeed the whole of the law in this area – the law relating to a body’s ‘amenability’ to judicial review’ – is inadequate at many levels.
Holmcroft was appealed, and we now have the decision of the Court of Appeal, in which the leading judgment was delivered by Lady Justice Arden, her last before taking her seat (as Lady Arden) in the Supreme Court. Might this resolve some of the problems with the first instance judgment?
Continue reading Thoughts on Amenability to Judicial Review
If a public body adopts a policy about how it will exercise one of its functions, it must follow it.
This principle has been developed over the last 15 years in a series of cases brought against the Secretary of State for the Home Department. Initially it was regarded as an outworking of the doctrine of legitimate expectation (Saadi at ). More recently it has been treated as a freestanding ground of judicial review which is ‘a requirement of good administration‘ (Nadarajah at ) and ‘a basic public law right‘ (Lumba at ).
The full extent to which the duty has now been cut loose from its traditional moorings in legitimate expectation became evident last year in the Supreme Court case of Mandalia. In that case the claimant successfully relied on the Home Office’s failure to follow an internal policy – a ‘process instruction’ to civil servants – of which he neither had, nor could have had, any knowledge at the time when it should have been applied. Following Mandalia, even an unpublished policy is now binding.
The duty is qualified by another basic public law principle, that policies should not fetter discretion. If the circumstances of an individual case provide a ‘good reason‘ for doing so (Lumba at ) a public body may, and sometimes must, depart from its own policy.
Subject to this qualification, the requirement to follow existing policies has developed into an important obligation on public bodies. However, two recent cases expose some of the limits of reliance on policies as a ground of public law challenge.
Continue reading The Duty to Follow Policies (and its Limits)
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
The ‘Big Four’ accounting firms are commercial organisations par excellence. And they are highly successful. They could be the poster children for globalised capitalism in the Twenty-first Century.
In that capacity, from time to time, their collective strength in certain product markets engages the attention of the competition authorities – as it did, for instance, in the UK Competition Commission’s inquiry into statutory audit services.
But competition law is about preventing the abuse of commercial power, and public law is about preventing the abuse of governmental power. These legal disciplines come from the opposite ends of the public-private spectrum. Are there any circumstances in which an organisation as intrinsically commercial as a major accounting firm can also be regarded as a public body and subject to the requirements of public law?
This was the question addressed by the Divisional Court in R (Holmcroft Properties) v KPMG. The case is revealing as to the courts’ approach to applying public law in a complex public-private environment, and in particular their failure to form a coherent view of how regulation operates.
Continue reading Holmcroft v KPMG – Can a Firm of Accountants be a Public Body?
The award of damages is not a remedy traditionally available in judicial review. In public law proceedings, the purpose of a claim is to identify unlawfulness and bring it to an end, not to compensate those who have been affected by it.
In recent years, however, the non-financial purity of judicial review has been eroded by a number of developments. In particular, monetary compensation is now available in some cases where the source of the wrong was non-compliance with either EU law (Francovich damages) or the European Convention on Human Rights (under section 8 of the Human Rights Act 1998).
But does the Administrative Court, without any real track record in this area, have the competence to carry out an assessment of damages in a complex case?
Continue reading Damages and the Competence of the Administrative Court