Tag: Theresa May

A Very British Coup – The Speaker of the House of Commons and the Brexit Crisis

The Speaker of the House of Commons, John Bercow, has indicated that, in accordance with a longstanding rule of Parliamentary procedure, the government is unable to bring the EU Withdrawal Agreement back to the House for a third vote. In doing so, he has strayed beyond the limits of precedent, and therefore of his authority, and has provoked a minor constitutional crisis.  

The Brexit policy of the UK government can be stated simply: to keep bringing back to Parliament the Withdrawal Agreement it negotiated with the EU until the House of Commons eventually decides to accept it. So far, the Agreement has been voted on and rejected twice. The government wants there to be a third vote. And, if it loses that, there will certainly be a fourth, and even a fifth.

The announcement by the Speaker of the House of Commons on 18 March 2019 that no further vote can take place in this session of Parliament is of constitutional significance because – while superficially a decision on an arcane point of Parliamentary procedure – it amounts in substance to a veto by him of the main policy of the elected government, with which he has now placed himself in direct opposition.

To justify his approach, the Speaker appealed to historical precedent and Parliamentary convention. But he has strayed far beyond the limits of any legal or constitutional map. Whatever his motives, he is now engaging in procedural innovation for which there is no basis in law or past practice. In doing so, he runs the risk of turning the current political sclerosis over Brexit into a genuine constitutional crisis.

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The EU Withdrawal Agreement – how and why the UK government agreed the worst of all possible deals

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.

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A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment 

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?

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The Article 50 Litigation – Why the UK Parliament Still Needs to Vote for (or against) Brexit

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 [48]).

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?

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