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
Why does a regulator impose a financial penalty on a regulated body? To punish it? To discourage any repetition of the offending conduct? To deter others from doing the same thing?
The answer, clearly, is all of the above. However, two fines imposed by different regulators on consecutive days in October 2016 tell contrasting stories.
In one case, Ofcom fined Vodafone £4.6 million for failings related to its customer account and complaints handling systems. This is the largest fine it has ever imposed on a telecoms operator, and follows a recent pattern of sectoral regulators handing out record penalties. Some regulators may well be over-using their fining powers (a point to which I will return in a later post), but no-one can say that they are not treating them as a serious part of the regulatory toolkit. Even for a company as large as Vodafone, a fine of £4.6 million, straight off the bottom line, does not pass unnoticed.
By contrast, on the previous day, the UK Electoral Commission, in what, for it, was also the imposition of a record financial penalty, fined the Labour Party the somewhat less substantial sum of £20,000.
Why the disparity, and what does it tell us?
Continue reading What the Ed Stone Tells Us about the Regulation of Political Parties
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
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
A single interesting point of law emerges from the High Court judgment in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers, summarised by the judge, Mr Justice Cranston, as concerning ‘the capacity of a body to seek judicial review of a decision which it could have made itself‘.
Continue reading Can a Public Body Challenge its own Delegate?
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?