Assange, Extradition and Human Rights

Mr Julian Assange was arrested yesterday after the Ecuadorian government withdrew the asylum they had given him in their embassy, thereby depriving him of the immunity they had conferred upon him from arrest. He was first arrested for failing to attend court  on 29 June 2012 in contravention of his bail conditions. He was then further arrested on behalf of US authorities under an extradition warrant under section 73 of the Extradition Act 2003.

 

The shadow Home Secretary has intervened urging the Prime Minister to block the extradition of Mr Assange to the United States on human rights grounds,  calls echoed by the Leader of the Opposition and the Shadow Lord Chancellor. The purpose of this post is to explain why, legally, this cannot be done. Ironically, the best hope Mr Assange now has of avoiding extradition to the US is if the Swedish authorities apply for him to be extradited there for other offences.

 

The Extradition Act 2003

The United States is a “category 2” country for the purposes of the Extradition Act 2003. In almost all respects, the decision whether to grant extradition is a matter for the courts, and not for the Secretary of State. In particular it is for the judge, not the Secretary of State, to decide whether extradition may be denied on human rights grounds. This is for good reasons that are illustrated by the Assange case itself. It is best to have cases like this decided by rules set down dispassionately in advance and adjudicated upon by judges, rather than through the discretion of politicians whose choices may be influenced by considerations unrelated to the justice of the case. We need clear rules of extradition that may be quickly applied. If the UK wishes those who are suspected of violating its criminal law to be tried here, and not to be able to flee to other jurisdictions to escape sanction, comity requires that we extradite to other countries those accused of offences there. There need to be safeguards in place (for example ensuring that any person extradited will obtain a fair trial) but we do not wish the extradition hearing to enable the accused to be able to run all the same substantive arguments as to his innocence as he would in the criminal trial (thereby obtaining two bites of the justice cherry, and encouraging flight).

 

The Indictment

Under the doctrine of specialty, a person extradited to stand trial may only be tried for those offences specified, and not for any other pre-extradition offences.  The offence alleged in the US indictment is that of conspiring with Chelsea Manning to obtain unauthorised access to information held on a computer holding information of the United States classified as “secret”. Hacking.

 

In the United Kingdom, it would similarly be an offence to conspire to commit the unauthorised obtaining of data held on a computer contrary to section 1 of the Computer Misuse Act 1990 (this is of significance, as we shall see).

 

The Role of the Judge

The first issue for the judge is to determine whether the offence on the warrant is an extradition offence (we will not extradite for, say, road traffic offences, or for breaches of esoteric offences we do not recognise).

 

An extradition offence is one  that is both an offence in the UK and the country seeking extradition. Further that offence must carry a term of imprisonment of 12 months or longer. The maximum prison sentence for the UK equivalent offence is 2 years. This “dual criminality” test here seems satisfied.

 

Second the court must consider if any of the bars to extradition apply: double jeopardy, passage of time, if the real motive for the prosecution is in fact to punish the defendant for another reason such as political belief, hostage-taking considerations, and the forum seeking extradition is inappropriate for reasons of justice.

 

It may be that some will argue that the motivation for prosecuting Mr Assange is for his political beliefs, but this seems hard to sustain. It is his alleged role in the hacking that is the concern, not his libertarian views.

 

This last requirement (the forum) is the only one possibly applicable, but is itself carefully defined. The essential questions are whether the United States is the appropriate forum for any trial (it plainly is) and whether such a trial would be unfair on the defendant? It was on this basis that Mr Lauri Love (another alleged hacker) successfully resisted extradition to the United States, because of his physical and mental fitness to be extradited. As far as is known, no equivalent consideration applies to Mr Assange, but his condition after seven years confined to the Ecuadorian embassy may not be good.

 

Third for some countries  the court must conclude that there is evidence which would be sufficient to make a case requiring an answer if there were a summary trail of an information against him. This however is not required for many states, including the United States.

 

Human Rights

The third requirement is that the extradition must be compatible with accused’s Convention rights as defined by the Human Rights Act. Most obviously, if the accused would not be afforded a fair trial extradition would be refused under article 6. It was  on this basis of the accused’s human rights that in 2012 Theresa May as Home Secretary refused the extradition of Mr Gary McKinnon’s to the United States on the basis of his article 2 right to life (there was a risk of suicide were he to be extradited). However, this power to decline on human rights grounds was (rightly) transferred to the courts by the Crime and Courts Act 2013, reducing the Secretary of State’s role.

 

The most relevant Convention Right applicable to Mr Assange is Article 10 (freedom of expression). After all, Mr Assange’s motive was to disseminate information through Wikileaks, which he then did. Would extradition to the United States violate his right to freedom of expression?

 

Given the “dual criminality” rule, it is hard to understand how it could. If Mr Assange were to be tried for equivalent offences in the United Kingdom, would the court interpret the Computer Misuse Act to permit this kind of hacking, or declare that that Act is incompatible with the Human Rights Act? This seems implausible. Mr Assange is not simply charged with publishing information obtained illegally by Chelsea Manning, but with conspiring to obtain unauthorised information from a computer system. This is not required by freedom of expression.

 

The Secretary of State

The extradition process is now “substantially judicialised“. The Secretary of State’s role is now limited to considering whether he is prohibited from allowing extradition on the basis of the death penalty, specialty, or earlier extradition to the UK. None of these apply here, and so if the court makes an order for extradition the Secretary of State must comply.

 

The calls by newspapers and politicians for the government to act to prevent extradition of Mr Assange are therefore misconceived at best. This is a matter for the courts, and on its face all the conditions for extradition are met.

 

Sweden

There is however one way in which Mr Assange might avoid extradition to the United States.

 

Originally, Mr Assange had sought asylum in order to avoid a European Arrest Warrant from Swedish authorities in relation to rape allegations. This warrant is no longer extant, but the proceedings may recommence.

 

Where the Secretary of State receives competing extradition request he may order one request to be deferred until the other has been disposed of. The relevant considerations include the seriousness of the offences, where they were committed and the date when each request was received. Rape is a more serious offence than hacking, and the original Swedish warrant was seven years earlier.

 

If Mr Assange were extradited to Sweden, he could not be extradited from there to the United States for offences the UK would not also extradite him for (an aspect of the specialty rule). He could not therefore be any worse off. Sweden’s extradition treaty with the United States is differently worded from that between the US and UK, and prohibits extradition for an “offense connected with a political offense”. Mr Assange’s alleged hacking may be said to be covered by this wording, in a way that it is not under the UK legislation.

 

Ironically therefore, once Mr Asasange has served his punishment in the United Kingdom for skipping bail, his best hope for avoiding extradition to the United States is that he is extradited to Sweden first.

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Royal Assent and Brexit

Brexit is a feast for constitutional lawyers. Royal Assent to Bills that have passed both Houses and how exactly it is given, including the Great Seal Act 1884, is not normally the kind of detail that most lawyers, even those who are specialists, carry around in their heads. Royal Assent has been, for centuries, a formality. Why worry about the details of this formal flummery?

 

It has now been argued by Professor Finnis that were the European Union (Withdrawal) (No 5) Bill to pass both houses, it would be legitimate for the government to withhold Royal Assent.  This follows on from his suggestion that the passing of such a Bill should be prevented by the government choosing to prorogue Parliament. I have previously addressed the importance of not dismissing Finnis’ arguments on the basis of some of the other (offensive) views he holds.

 

Finnis’ Argument

The crux of Finnis’ argument is that the Commons, and in particular its speaker, is behaving illegitimately. Ordinarily, the government is in control of the legislation that is presented to the Commons. This is for very good reasons. The government, aided by a professional civil service, is able to take an holistic view of law and expenditure. Allowing MPs control of the legislative process gives rise to the danger that majorities will be constructed for inconsistent and incoherent things. There may be a majority for extra public spending, no larger deficit and lower taxes for example. A single entity, the government, must make the hard choices, and if the Commons doesn’t like them, its remedy is a vote of no confidence requiring the government to be replaced by another.

 

There are, admittedly, Private Members Bills, but these are allocated limited time, cannot cover matters requiring further expenditure, and are small in number. They usually cover such crucial matters as the regulation of sunbeds and the control of horses.

 

Finnis argues that the European Union (Withdrawal) (No 5) Bill is illegitimate in two ways. First it seeks to take away decision making from the government in the conduct of international relations, second it will impose a charge on the public purse without government approval. (The latter is somewhat doubtful, but the necessary European elections would not be cost free). If the Commons wishes to pursue these goals its correct course would be to pass a vote of no confidence and find a different set of ministers prepared to pursue the objectives in the Bill. Its refusal to do so, whilst taking on tasks that are properly the government’s, justifies the exceptional steps of proroguing Parliament or withholding Royal Assent. Or so he argues.

 

The Crown and the Monarch

One distraction, about which Finnis is correct, is in relation to the Monarch. In the modern era, we need to distinguish between the Crown (the institution) and the Monarch (the person). The former is many centuries old and will last as long as the State. The latter is Elizabeth II, a youthful 92. It is the Crown that gives Royal Assent, not the Monarch the person. The Monarch is nowadays no more than a pen. In almost all circumstances where she exercises any legal powers she now does so in accordance with the advice of the relevant minister. Where it is inappropriate for such advice to be definitive (as it is in deciding who to appoint as Prime Minister) she now does so in accordance with a rule (whomsoever the Commons has already determined has the confidence of a majority).

 

Royal Assent is not performed by the Queen alone. The Bill first goes to the Lord Chancellor, and she needs the Great Seal. The details of this are unnecessary. The relevant other officers of the Crown (who are members of the government) could prevent the pen (the Queen) from giving Royal Assent.

 

The only option for the current Monarch if asked to do something to which she had a profound moral objection would be abdication, not refusal.

 

Royal Assent

Is it conceivable that Royal Assent could be legitimately refused in any circumstances? Again, I think it is best to concede to Finnis that there may be highly unusual cases where ,between the passing of a Bill through both Houses and the decision whether to give Royal Assent, circumstances have dramatically and unexpectedly changed where the enactment of the Bill would be inappropriate.

 

Ordinarily however, and for hundreds of years, Royal Assent has just been a formality. In the United States the President has exercised an analogous “pocket veto” power in relation to  Bills. This may be thought legitimate in that system because the President has his own democratic mandate independent of Congress. The UK government has no such separate mandate. Its democratic legitimacy is only sourced from the Commons.

 

Confidence

If any government did try to withhold Royal Assent from a Bill (save in the ultra rare change of circumstances situation above) the response of the Commons would be swift. The government would lose a vote of confidence and be swiftly replaced.

 

The only reason why Finnis’ argument is of relevance is because of lack of time. Votes of confidence, and the process of coalescing around a candidate for Prime Minister who commands majority support takes time, especially where as now no party has a majority in the Commons. If a Bill needs to be passed urgently, as one requiring delay to Brexit or more sensibly changing the default to revoke possibly would, a rogue government could prevent it altogether by pocketing the Bill for the brief period necessary.

 

It is important therefore for it to be said loudly and clearly that this is illegitimate. Yes, ordinarily the government is in charge of legislation before the Commons because it can take an holistic view, but that is only because that is what the Commons itself ordinarily thinks best. Where, as now, our democratically elected body takes, exceptionally, a different view, that is legitimate because it itself is the body mandated by the voters to take that decision. The formal details of the Royal Assent Act 1967 or the Great Seal Act 1884 are irrelevant.

Is Labour Responsible for Brexit?

The economist Professor Simon Wren-Lewis argues today that Brexit is an “entirely Tory failure” for which Labour has no responsibility.  He adopts the same argument as that employed by the polemicist Mr Owen Jones that because Labour has never at any stage had sufficient votes to make a difference to whether, say, article 50 was triggered or not, its votes one way or the other did not matter. Labour could not have removed the government in power, and so is not responsible for what has occurred. (Precisely the same argument has been employed by those who have defended the UK’s participation in the second Gulf War: the United States would have gone ahead anyway regardless of the UK’s position).

 

Let us assume, arguendo that this is true. Let it be assumed that it would have made no difference whether, from the outset, Labour had campaigned against triggering article 50, had strenuously argued for freedom of movement and remaining in the single market, had campaigned vigorously for a people’s vote, or were now arguing to revoke article 50. Does that make this “an entirely Tory failure”?

 

Causation, Contribution, and Responsibility

To cause something is to make a difference. Lawyers are familiar with this as the “but for” test for factual causation. “But for X, Y would not have happened.”

 

To contribute to something is to be one factor which, in combination with other things, was sufficient to cause an outcome.

 

All causes contribute, but not all contributions cause.

 

Some necessary conditions make very small contributions to eventual outcomes because so many other things also have to have happened. This is captured in the proverb

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 

The moral question is whether responsibility is determined by causation or contribution? Is it digital (if you cause you’re responsible) or analogue (you’re responsible to the degree you contributed)?

 

Voting

Voting is helpful both in enabling us to see the difference between contribution and causation, and in helping us to understand which matters for purposes of responsibility.

 

Say there is a first past the post election where there are two candidates. Candidate 1 receives 100,000 votes. Candidate 2  5,000. Candidate 1 is duly elected.

 

What, in terms of votes, caused the victory?

 

We could say that 5,001 votes caused his election (as without that number he would not have been elected). This does not refer to any of the actual votes, but to the number sufficient to win.

 

Or we could say that 95,000 votes caused his election, as if we took that number away he would no longer have been elected. This refers to any set of 95,000 actual votes cast.

 

No individual vote caused the election of candidate 1. Each contributed.

 

If, say, the victorious candidate turns out to be a disaster, who is responsible for his election? Can each individual voter who cast a vote in favour argue “I am not responsible as my vote made no difference.” If they could no voter is responsible, as no individual vote made a difference.

 

The correct position is that each voter is responsible according to their degree of contribution. Children are right when they object to voting that it rarely “makes a difference” but that doesn’t matter for responsibility. Everyone who failed to vote against the successful candidate also made a contribution, even though they too may have made no difference (say only 50 people who could have didn’t vote).

 

Say the successful candidate had won by a single vote. Also assume that some of the votes were cast in blocks of varying sizes, so that Boss A controlled 100 votes, and Boss B 500 votes. As the result was carried by a single vote, does that mean that Boss A and Boss B were equally responsible? The correct position is no, Boss B made five times the contribution to the outcome that Boss A made, and is proportionately more responsible. The person who cast a single vote in such circumstances may have made a difference to the outcome, but only made a very small contribution, and so has a correspondingly small share of the responsibility.

 

Labour and Brexit

The answer to the counterfactual question of what would have happened if Labour had opposed Brexit more strenuously is unknowable. Its contribution has however been substantial. Labour MPs overwhelmingly backed the Brexit referendum, they voted under a three line whip to trigger article 50, and have failed to support a second referendum. Labour has made a substantial contribution to Brexit, and as a result shares a large part of the responsibility. Uncomfortably for its supporters, if you have lent your support to one of the party’s responsible, you too have contributed, and are also responsible.

 

That does not mean that Labour is solely or even largely responsible. The contribution of the government in power has, of course, been greater still. If Theresa May had been hit by a bus in 2016 Brexit would still have happened, but that does not mean that her contribution to it has not been very great. What the relevant degrees of contribution are is, however, incapable of proof, as, unlike with the simple example of voting, we have no method of measurement.

 

 

 

 

 

 

 

 

 

Brexit: The End Game

In a rational world, where actors behave according to their stated preferences, May’s deal should pass next week.

 

The Withdrawal Agreement we have is non-negotiable, and is *given Brexit* a good deal for the UK. For all those MPs who either support Brexit or although opposing it accept the result of the referendum, the rational course is to vote for it. A healthy majority.

 

The Political Declaration is all still to be agreed, and although those who favour a closer or more distant relationship with the EU may object to it, they can either argue their case at the relevant time, or support a change after the deal is struck. The Withdrawal Agreement is forever, the future relationship can always be changed.

 

But, that is not the world we live in. The Labour opposition, although having no substantive objection to the Withdrawal Agreement will vote against May’s deal, and for good party political tactical reasons would oppose any conceivable deal she proposed. As things stand, only a handful of die hard Lexiteers will back her.

 

A majority of the Conservative “European Research Group” (sic) oppose the Withdrawal Agreement because the guarantee of there being no hard border in Ireland limits the UK’s future ability to enter trade deals with third party states whilst also having no border between the mainland and Northern Ireland. They therefore oppose the only sensible Brexit there will ever be in their lifetimes.

 

So, if as seems likely at the time of writing, the government fails to pass the Meaningful Vote approving its deal through the Commons at the third attempt, what next?

 

Avoiding No Deal

There are currently two ways of avoiding a no deal Brexit on Friday 29 March. The first is revocation of its article 50 notification by the UK. This requires legislation (the arguments to the contrary are so feeble as to be unworthy of examination). Although emergency primary legislation can and has been passed speedily in the past (a day suffices), this has been possible because unopposed. Legislation to revoke would be passionately opposed in both the Commons and the Lords. There is also, as things stand, at most around 100 MPs who currently favour this option. Lack of time and political will rule it out.

 

The second is delay. This requires no legislation, but does require EU27 agreement.  Donald Tusk, the President of the European Council yesterday,  wholly predictably, ruled out the Prime Minister’s request for a short delay for no discernible purpose. Such a short delay, up until the European elections, would only be available if the current deal is approved.

 

The choice is  the UK’s. It must be the party to make any request, the EU27 will not be making an offer without one. The UK could make a successful request for a longer extension if it were for a purpose (such as a referendum, a General Election, or possibly merely a change in government to pursue a new policy). Such a request would entail the UK participating in European Parliamentary elections, and having MEPs (which will cause problems with reallocated UK seats, but probably not insuperable ones). Any responsible UK government must do this before Friday if the deal is not approved by Parliament.

 

May’s Position

In the Commons yesterday Mrs May made it clear  that she is not prepared to serve as Prime Minister if Brexit is delayed beyond 30 June. I believe her.

 

If she refused to put in a request for a long delay she would quickly face a vote of no confidence. There are sufficient Tory MPs who realise that no deal Brexit would be a disaster that this vote would pass. May knows that as well.

 

Her only course therefore would either be to resign immediately upon losing the Meaningful Vote, recommending a Prime Minister commanding majority support prepared to request such a delay, or (more probably) herself request a long delay in order for there to be a change in Government, whilst agreeing to serve for such time until Conservative leadership elections took place.

 

It may be that it was for that reason that she made the apparently counterproductive statement last night blaming the Commons for the delay to Brexit, whilst making no apparent appeal to win over waverers. She knows she has lost.

 

Can any Deal pass?

A long delay doesn’t change the arithmetic or the necessary features of the deal. Any conceivable Withdrawal Agreement looks near identical to this one, and the ERG will oppose it. The opposition will oppose it for the same (good, tactical) reasons it does now. There is no majority possible. in a year’s time employing the same tactics.

 

What if there were an election and Labour won a majority? Could it pass an alternative Brexit deal? Again, the Conservatives would oppose any such deal on the same basis that Labour opposes this one: because proposed by their opponents. Labour would have as large, possibly larger, group of rebel MPs who opposed the deal from the opposite perspective of the ERG: they favour Remain or something much closer to it than Labour would offer.

 

So, the only way a deal could have passed would have been for there to have been a Conservative government with such a large majority that it was not dependent on the ERG’s Brexiteers against Brexit. That majority was what May sought in the general election of 2017, and failed to obtain.

 

The Way Out?

A delay is, however, just a delay. Where will we be in a year?

 

A future government that wishes to pursue Brexit has two options. First it could (as I thought May would) decouple the Withdrawal Agreement and the Political Declaration, offering Parliament the option of the guidelines it wishes to pursue on the future relationship. Whether this will cause a significant number of opposition votes to change may be doubted. Second it could offer a confirmatory referendum as the price for Parliament approving the deal (with the options being between Remain and Agreed Leave).

 

If the deal does not pass this week, the Prime Minister will at most be a caretaker by its end. Come what May.

 

Delay is a Waste of Time

 

Although the government has consistently tried to rule out any extension to the date upon which the United Kingdom exits the European Union, a private members bill was introduced by Nick Boles MP to require the Prime Minister to seek such an extension if the Withdrawal Agreement and Political Declaration are not approved. A similar Bill seems likely to be shortly introduced by Yvette Cooper MP.

Delay and Revocation

It is paradoxical that the United Kingdom has the unilateral power to revoke the Brexit process altogether, but, if it seeks delay, it must obtain the agreement of the 27 other member states. It seems likely that such an extension would be agreed to if it were for the purpose of a second referendum or a general election. It seems unlikely that it would be granted for purposes of making preparations to facilitate a no deal Brexit, which would entail a ‘hard’ border in Ireland, which is one of the central goals of the EU27 to avoid. It is therefore almost certainly insufficient to obtain an extension to legally require the PM to ask for one. She would have to ask for a particular purpose.

 

Time Doesn’t Help

Delay will not change the arithmetic in the Commons. As we saw on 16 January, there is no majority in favour of a General Election. There is also an even smaller number currently in favour of a Referendum.  The deadlock would remain the same. We will have managed to delay taking a decision, but not added any further options.

 

Further, by delaying the exit date, the United Kingdom does not extend the transition period after that date. The UK only obtains the transition period if it agrees to the Withdrawal Agreement. The end of the transition period is not, as often stated, “two years”. It is not a rolling period. It comes to an end on 31 December 2020. This end date is fixed by EU budgeting requirements (ie they need to know the point at which the UK stops paying). This could be extended to 31 December 2021 or 31 December 2022, but the UK will have to pay into the EU’s budget throughput that time, and will be essentially a non-voting member of the EU (an uncomfortable position).

 

The transition period is crucial because it is during this time that the UK will negotiate the future relationship. The terms of the Withdrawal Agreement have taken nearly two years to settle, and are far more straightforward. An extension wastes time as it eats into the transition period. Without a clear objective in mind it should be opposed.

 

Change the Default to Something Else?

I have suggested changing the default in the absence of approval of the Withdrawal Agreement from no deal Brexit  to revocation of Article 50. This would not lead to Remain being the result. All options, even no deal Brexit, would still be possible alternatives for the legislature to approve.

 

May currently has two paths to attempt to persuade MPs to approve a Withdrawal Agreement. The first is to induce MPs to back her with the threat of something worse. Here the obvious worse thing is no deal Brexit. The procedural hurdles for parties other than the government to introduce and pass legislation to stop this are so dauntingly high that this tactic may still succeed. It does not, however, seem to me to be a democratically acceptable way to behave.

 

The other was the path I assumed that she would take.

 

The Labour Party has no substantive reason for opposing the Withdrawal Agreement (as opposed to the Political Declaration). Although Mr Corbyn’s amendment on Monday criticised the backstop as “ neither politically nor economically sustainable” Sir Keir Starmer interviewed on Sunday admitted that any backstop, which simply guarantees that there is no border in Ireland, is a requisite of any deal. What Labour’s current position on the Withdrawal Agreement is is unclear.

 

So, in a sensible world, the (non-negotiable) Withdrawal Agreement itself should be agreed. The Political Declatation on the future relationship is a mere statement of intent and is all up for grabs. Mrs May ought to offer Parliament a series of rolling votes on what it seeks in the negotiations that are to come on the future relationship ( a Customs Union? Freedom of Movement? And so on.). She should then treat these votes as binding and proceed to negotiate on that basis.

 

It now seems however that she will not do that whilst the threat of a no deal Brexit remains possible. She wishes to have her Withdrawal Agreement and Political Declaration approved together.

 

This would however be a hollow victory. Of course if Parliament had approved her preferred version of the Political Declaration this would have given her a mandate to pursue it. Approval obtained at the point of a gun is not a mandate at all.

 

So, those Parliamentarians who do not wish to be blackmailed and wish to avoid a no deal Brexit, which must include reluctant Conservaitve Brexiteers with the same views as Mr James Kirkup and Mr Daniel Finklestein, should back a change of default. This does not lead ultimately to Remain, but changes the path by which Brexit must be secured by the government. Compel the European Research Group to compromise.

 

Change to a Referendum?

Instead of changing the default to revoke, it might be possible to change the default to a referendum. This would however require the form of the referendum to be specified. It would require far more complex legislation than my simple draft.

 

For myself, I consider this a worse option. It is hard to avoid the conclusion that another referendum would be a re-run of the last. We cannot maintain that it would instead be a referendum on ‘the terms’ as most of those remain to be agreed.

 

The best path is to change the default to revoke, thereby compelling those who desire Brexit to compromise with the 48% who did not.

Change the Default

In democratic politics, the most important skill is the ability to count. Roughly, but adequately for our purposes, the division in the Commons as revealed in recent voting is along these lines

 

May’s Deal 200

Referendum 178

Labour’s “Permanent Customs Union” Brexit 141

No Deal Brexit 120

 

So, if we wish to avoid no deal Brexit we can discount the following options.

 

A Second Referendum: the political will and (probably) time is missing for this. The hurdles of legitimacy, form and political exhaustion rule this out. The PeoplesVote campaign have done well to keep this on the table as long as it has been.

 

“Revoke and Reconsider”: if a referendum is impossible, the numbers who would support revocation without one are very small. Most MPs do want to deliver the result of the referendum.

 

Norway +: although there might be a cross Parliamentary majority for this option, it needs a government that will negotiate it. No such government is in prospect even if there were a General Election.

 

A “Permanent Customs Union”: the actual difference between the government’s version of Brexit and what Labour is calling for is, when examined closely, almost insignificant. The real division  between the parties is: who gets to negotiate the future relationship. On this the government and opposition are, inevitably, irreconcilable. There is no deal that May could offer the Labour leadership to obtain their support for any version of Brexit.

 

May’s Deal?: here we enter the realm of uncertainty. The government loss by 230 votes was very large, much larger than I expected. The coalition against it is however obviously unstable, including Remainers such as Mary Creagh and Caroline Lucas, and no deal Brexiteers such as Jacob Rees-Mogg and John Redwood. If come the end of March the options are still no deal v May’s deal, in a rational world May’s deal should win. But, the scale of her defeat makes this a dangerous gamble.

 

Where there is deadlock, what matters is the default. Currently that is no deal Brexit. Even though supported by only around 120 MPs it has far greater prospect for success than other better supported options.

 

So, easily the most vital thing to do is change the default.

 

Legislation

The government cannot rule out no deal Brexit, that requires legislation.  Further as a matter of Parliamentary tactics it may wish not to do so as the only way of applying pressure to obtain more support is to leave no deal Brexit as the default.

 

However, unlike all other options, there should be a majority in Parliament for an amendment to the European Union (Withdrawal) Act along these lines.

X. Duty to revoke notification of withdrawal from the EU

(1) If Y days before exit day no approval of the outcome of negotiations with the EU has occurred in conformity with section 13 of the European Union (Withdrawal) Act 2018, the Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union under Article 50(2) of the Treaty on the European Union.

(2) Upon such notification, the sections of the European Union (Withdrawal) Act 2018 specified in schedule Z shall be repealed

Schedule Z

1 For the purpose of section X(2), the relevant sections are [all of them except 13].

 

This would make Remain the default result. This should obtain the support of all those who favour a  Labour led Brexit, a referendum, and May’s deal over no deal Brexit. It enables all those who favour the only Withdrawal Agreement there will ever be to say “I backed the government’s deal to achieve that” whilst avoiding a no deal Brexit.

 

It seems very unlikely that any amendment along these lines will be tabled by the government or the leader of the opposition. It is therefore vital that backbench MPs such as Nick Boles, Dominic Grieve and Yvette Cooper back such an amendment. It is our last, and best, hope.

 

[Please spread, this needs to be generally understood.]

How could “No Deal” be taken off the table?

It is sensible politics for Mr Corbyn to set as a condition of talks with Mrs May that she “takes no deal Brexit off the table.” That is because this is something that is beyond the power of her government. As she cannot do it, no talks take place, and Mr Corbyn ensures that he takes no responsibility for what is to come. (Save that he whipped his MPs to vote to trigger article 50 which set no deal as the default.)

 

How could no deal be prevented? There are only two options, their conditions are different under UK domestic law and EU law, and neither is under the control of the government.

 

The first is the approval of the 599 page Withdrawal Agreement. So far as the relations between the UK and EU27 are concerned, that is all that needs to be done. The 26 page Political Declaration, which sets out a possible framework for the future relationship, is a mere statement of intent. The future relationship is still all to be agreed. The Withdrawal Agreement is essentially non-negotiable. The Political Declaration is not only negotiable, nothing is settled at all. It is now a Golden Rule for those interested in Brexit that any article or interviewer that fails to draw the distinction between the two can be ignored.

 

Under UK domestic law however, both the Withdrawal Agreement and the Political Declaration must be approved under the European Union (Withdrawal Act 2018. As the Commons rejected them by 230 votes, this is not currently an option in Mrs May’s power.

 

The second is the revocation of the notice under Article 50. It is the government, not Parliament, that acts for the United Kingdom in international law. The Court of Justice of the European Union in Wightman decided that the UK does have the power to unilaterally revoke this notification. So, what would prevent Mrs May from doing so?

 

The government may not use its prerogative powers to ‘frustrate’ an Act of Parliament. Laws made by the legislature cannot be overturned by the executive. Section 1 of the European Union (Withdrawal) Act 2018 states that the European Communities Act 1972 is to be repealed on exit day. In order for that not to be so there would have to be no exit day. For the government so to act is flatly incompatible with the wording of the legislation.

 

Some might argue that the European Union (Withdrawal) Act expressed no intention to withdraw from the European Union, but merely provided a tidying up machinery for a decision taken by the government. This is both unpersuasive and irrelevant. The question is whether the government in purporting to exercise its powers would be doing so incompatibly with the terms of enacted legislation. It would.

 

This is a much more straightforward issue than that before the UK Supreme Court in Miller where the dissentients (rightly) argued that notification was not inconsistent with the terms of the European Communities Act.

 

Legislation would therefore be required to authorise the government to revoke article 50.

 

So, what legislation could make remain the default, rather than no deal Brexit? The easiest would be an amendment to the European Union (Withdrawal) Act, or a freestanding short Act, along the following lines

 

X. Duty to revoke notification of withdrawal from the EU

(1) If Y days before exit day no approval of the outcome of negotiations with the EU has occurred in conformity with section 13 of the European Union (Withdrawal) Act 2018, the Prime Minister shall notify the European Council of the United Kingdom’s revocation of its intention to withdraw from the European Union under Article 50(2) of the Treaty on the European Union.

 

(2) Upon such notification, the sections of the European Union (Withdrawal) Act 2018 specified in schedule Z shall be repealed

 

Schedule Z

1 For the purpose of section X(2), the relevant sections are [all of them except 13].

 

A call by Mr Corbyn for legislation of this kind, which changed the default result, would be coherent. It is, however, very difficult to contemplate the current government trying to do so and not falling. Mrs May might call for such legislation, but this would remind me of the only joke in Shakespeare I ever found funny

 

Glendower:
I can call spirits from the vasty deep.

Hotspur:
Why, so can I, or so can any man;
But will they come when you do call for them?

 

 

Addendum: For Lawyers Only

The frustration argument above is in fact slightly more complex. Section 1 is not yet in force. Section 25(4) provides that it is brought into force on such day as a Minister of the Crown appoints by Regulation. If the government could prevent there from being an exit day (by giving notification of withdrawal to the EU) section 1 could not be brought into force, by this or any future government. Section 25(4) would therefore be frustrated. because section 1 was. (A near identical issue was that which arose in the decision of the House of Lords in R v Secretary of State for the Home Office, ex p. Fire Brigades Union).

 

Another argument might be that the European Union (Notification of Withdrawal) Act 2017 implicitly gives the government authority to revoke the notice. Even if we accept this, which seems a stretch  given the Act’s words and purpose, it is no longer arguable. The problem with revocation by the government alone is its inconsistency with the terms of the subsequent 2018 Act. Any such implied statutory power is therefore ruled out for the same reason as any prerogative power.

 

 

 

 

May’s Plan B (and C?)

Once May loses the meaningful vote on Tuesday 15 January, which she looks certain to do by around 90 votes, what are her options?

 

One thing that is not an option is for her to rule out no deal Brexit as Labour’s Shadow Brexit Secretary Sir Keir Starmer has claimed. This claim is not only nonsense, but dangerous. The only two ways of avoiding no deal Brexit are

 

(i) The approval by the legislature of the Withdrawal Agreement and the Political Declaration

or

(ii) Revocation of art 50, which will require legislation to overturn the European Union (Withdrawal) Act 2018

 

We might be able to delay these choices (by obtaining the agreement from the EU27 to an extension to art 50), but in the end they are the only two. Each requires the legislature to act, neither can be done by the government.

 

The problem is not therefore that Parliament needs to take back control. Parliament, not the government, has control. But with a hung Parliament, under nobody’s control, the danger is that no majority can be obtained for either of these two options.

 

Decoupling the Withdrawal Agreement and the Political Declaration

 

The “meaningful vote” requires approval of both the binding Withdrawal Agreement, and the Political Declaration, a non-binding statement of intent on the future relationship. If May had been able to obtain such approval, this would have been politically advantageous. It would have given her the mandate to seek agreement on the future relationship along the lines spelled out, without the need to return to Parliament.

 

For no deal Brexit to be avoided however, and for the UK to obtain the 2 year transition period. all that is required at international level is the Withdrawal Agreement. As the Professor of European Union Law at the University of Cambridge  has pointed out, May can offer Parliament the power to set guidelines on what is agreed on the future relationship (freedom of movement or not, Customs Union or not etc). Nothing at all in the Declaration prevents the government from pursuing any available option that Parliament prefers.

 

This flexibility would not win over the European Research Group, whose objection is to the backstop in the Withdrawal Agreement, but in a rational world it should win over others who accept the referendum result and do not object to the UK guaranteeing that there will be no border in Ireland.

 

In principle therefore, such a move would place the Labour opposition in a difficult position. They have, as far as discernible, no substantive objection to the Withdrawal Agreement. Their demands (eg a Permanent Customs Union that gives the UK a “say”) concern the future relationship. However, in practice it may be doubted whether this difficulty is a real one. Labour can maintain the claim that the deal is “bad” for unspecified reasons, make as much noise as they can about the procedure the government is pursuing, and hope few people notice.

 

(Notice that May cannot overcome her dilemma by offering Labour what they want. Labour has demanded the impossible, thereby closing that option.)

 

So, Plan B may attract some more support, but probably not the forty to fifty more votes required.

 

A General Election

If therefore, as seems possible, this suggested plan B is not enough to move the 40 or so votes needed, what is the plan C? One option might be a General Election. If the Conservatives were far ahead in the polls, it would be tempting to seek a General Election in order to obtain a majority sufficiently large so as to outweigh the ERG refuseniks.

 

However, this is precisely what May tried in 2017, which failed. Any election, just as the last, could not be confined to the issue of Brexit. May is a poor campaigner, doing far worse in the polls now than she did then. This is not therefore a viable option.

 

A Referendum

Although a majority of Mr Corbyn’s party favour a second referendum, he has steadfastly refused to call for one. Studied ambiguity, whilst being slightly more Remain-y than the Conservatives, has served him well. In a first past the post system with two dominant parties, those who strongly favour Remain when presented with a binary choice between the party of Jacob Rees-Mogg and another slightly more favourable to the European Union have nowhere else to go.

 

In his speech in Wakefield on 10 January (a significant choice of location) Mr Corbyn on its face steered a middle course between Leave and Remain. But if we parse what he said with care, he now favours the former. So, we are told that the “real divide” is not between Leave and Remain but between the many and the few (ie Brexit does not matter). Further we learn  that the referendum was really about “what has happened to our people over decades.” These are not the words of a man who favours sticking with that status quo (ie Remain) who is about to pivot to favouring a referendum.

 

Any conceivable referendum would be of the form “Withdrawal Agreement v Remain.” No responsible government would put “no deal Brexit” on the ballot. The economic consequences of this option are so serious that it would be equivalent to giving a cancer patient the choice of being treated by homeopathy. The danger would be that given the choice too many blind optimists would opt for it. That being so, a referendum would require Mr Corbyn to side either for or against Brexit. This would go against his long term strategy of ambiguity.

 

The prospect of Mrs May backing a referendum look superficially stronger. Although she has ruled it out so far, it offers her a way out of Parliamentary deadlock. Unfortunately a referendum of the form “Withdrawal Agreement v Remain” does look uncomfortably like a rerun of the 2016 referendum. It would not be a referendum on the terms of Brexit as the nature of the future relationship is still all to be agreed.

 

Her position looks to be the converse of Mr Corbyn’s. She may favour a second referendum, but the majority of her party would not. She would split the government.

 

Therefore I do not think, as presently advised, that there will be a ‘plan C’. Mrs May may well consider that she has done her duty to the country by obtaining the only Withdrawal Agreement that is possible, and by presenting it to Parliament. Her duty to her party requires her not to follow Peel on the Corn Laws and to split her party in two. If, in the resultant deadlock, we exit without a deal  she may conclude that that will not have been for want of trying on her part. Oh dear.

What are the Alternatives to “May’s Deal”?

As there seems to be a Parliamentary majority for Brexit, but against both a ‘no deal’ Brexit and ‘May’s Deal’, it is tempting to ask what majority for a different kind of Brexit could there be?

 

A “Permanent” Customs Union

The substantive objection given by Labour to May’s deal is that they would prefer a permanent Customs Union with the EU with a British say in future deals. This is unpersuasive for four reasons.

 

First “May’s Deal” not only does not rule out a Customs Union, it all but guarantees it. The backstop in the Withdrawal Agreement guarantees that Northern Ireland must remain within the Customs Union so as to ensure that there is no border in Ireland. Because the United Kingdom succeeded in obtaining agreement that the backstop applied to the whole United Kingdom, it has the option of remaining entirely within the Customs Union. Unless the United Kingdom wishes there to be a border between the mainland and Northern Ireland, and the current government and any conceivable government are opposed to that, that entails the United Kingdom remaining in the Customs Union. To that extent, there is no difference between the government and the opposition. (Although no doubt there would be agreement on the United Kingdom no longer having any option.)

 

Second, as has been made clear for over two and a half years, the EU will not be agreeing the form of the future relationship until after Brexit. It is inconceivable that a change in UK government would alter that.

 

Third, as the competition law silk George Peretz QC has explained, the idea that the EU would agree to give a third country such as the UK a ‘say’ in the trade deals it could enter into is hopelessly unrealistic.

 

Fourth, nothing in life, including Customs Unions, is forever. Just as with the Single Market, there will be nothing to prevent a future UK government leaving (or joining) a Customs Union. Membership of the European Union provided certainty because it is so hard to unpick, as we are discovering. Any future relationship will not be like that. As a result, the fight over the ‘future relationship’ will carry on for the rest of my life. Which is something to look forward to.

 

The bottom line is that there is no difference between the positions of the government and the opposition, despite the noise.

 

Norway Plus

A more serious alternative is that of Norway Plus. This has been advocated in a pamphlet by the Labour MP Lucy Powell, and the Conservative MP Robert Halfon. The polemicist Owen Jones and the journalist Stephen Bush  have both argued that this option may have more prospect for a Parliamentary majority than May’s. This is because it entails membership of both the Customs Union and the Single Market. It therefore has appeal to those favouring a softer Brexit.

 

However, this option cannot simply be adopted by Parliament, as Mr Jones at least seems to believe. The future relationship is still all to be agreed. The only deal entered into so far is the Withdrawal Agreement setting out the terms of exit. What would be required is a government in power with the policy of pursuing Norway Plus. Initially, at least, we would require the current political declaration (which is what lawyers call a Statement of Intent and not a binding agreement) to be changed by the parties.

 

This is not the current government’s policy, and stands no chance of being the policy of any conceivable Conservative government. MPs, such as Mr Halfon are a minority in his party.

 

It seems probable that a majority of Labour MPs would favour a government that pursued this policy. It is not, however, the current policy of the leadership, and Mr Corbyn’s speech today although unclear on many things, was clear that this would not be the policy he would pursue. Labour MPs do not have the power to remove Mr Corbyn.

 

As a result, even if there were a General Election, the result would not be to put in place a government that favoured pursuing Norway Plus. Although there may be a majority in Parliament who favour this option, what is required is a government that is prepared to obtain an agreement on this basis. No such government is in prospect.

 

Given Brexit, the choice reduces to May’s deal or no deal  We are currently in a game of chicken, familiar from Rebel Without a Cause. Will those who oppose May’s deal pull up in time to prevent no deal? Oh dear.

 

 

The Path to Brexit Disaster

 

On 30 June 2016, a week after the referendum on the UK’s membership of the European Union, EU trade commissioner Cecilia Malmström was interviewed on Newsnight. She made it clear that Brexit would be a two stage process. First the terms of withdrawal would be agreed, and then after exit the future relationship would be settled.

 

This process was implicit in the wording of article 50. It greatly strengthened the EU’s hand in negotiation as it meant that the UK could not refuse to pay the ‘exit bill’ unless it received X, or Y in the future. We only get to the next stage if we pay the bill.

 

The process set out two and a half years ago by Ms Malmström has, inevitably, been the one that has been followed. We now have two documents. One is a long 599 page legal document, the Withdrawal Agreement, setting out the terms of exit. The other is a 26 page non-binding political declaration setting out the framework for the future relationship.

 

The European Union (Withdrawal) Act 2018 sets as a condition of ratification of the Withdrawal Agreement that the Agreement and the Framework are approved by Parliament. This is odd as the only legally significant thing is the Withdrawal Agreement. Neither side is legally bound to anything by the political declaration. The future relationship is still all to be agreed.

 

Is Remain Possible?

If nothing more happens the United Kingdom will leave the European Union on 29 March 2019 without a deal. The Court of Justice of the European Union has declared that the UK has the unilateral right to revoke its notification of its intention to leave under article 50. (I don’t myself find its reasons remotely convincing, but who now cares as it has clearly strengthened the UK’s position.)

 

The government cannot revoke art 50 without legislation authorising it to do so. This is because the European Union (Withdrawal) Act 2018 clearly expresses Parliament’s intention to exit the European Union. The government’s prerogative power at international level cannot be used to overturn domestic legislation. (Miller was, in my opinion and that of the dissentients, wrongly decided because notification did not so frustrate the European Communities Act).

 

Legally, Parliament could pass legislation repealing the Withdrawal Act and requiring the government to revoke article 50 without another referendum. Politically this is, in my opinion, inconceivable under any circumstances (there would be a few votes to do so in the face of no deal Brexit but nowhere near enough).

 

So, politically, legislation requiring a second referendum to take place before Brexit day is required if Remain is to succeed. (A General Election won by a party advocating revoking article 50 would also suffice, but as neither potential governing party favours this it may be discounted). There is no time before March 29 for such a referendum to happen. Brexit day could be delayed if the other member states of the European Union agreed (the UK has no unilateral power of delay). Politically, they would probably look benevolently upon a United Kingdom government request for such delay if the request is made for this purpose, and not for the purpose of reopening the (concluded) negotiations. Under the Withdrawal Act, the government has the power to bring Brexit day under the Act into line with that agreed with the other member state.

 

However, my judgement is that Eleanor Sharpston (Advocate General to the CJEU) is correct that the latest date any such extension could be agreed for is 2 July 2019. This is because of the European Parliament elections in May, and when that Parliament sits. It will not be acceptable for UK citizens resident in the rest of the European Union to be voting for a Parliament of a Union in which they will not be citizens. It also seems very unlikely at this point that the UK will be running elections for MEPs for the next European Parliament, even if they could be given a foreshortened tenure to end upon Brexit.

 

Could there be a second referendum between now and July? If there were the political will, the necessary legislation could be passed and the vote organised. But with both the government and the opposition opposed, this seems impossible. The Labour conference Brexit motion simply left the decision for the path forward to the leadership, who clearly do not favour a second referendum. The clock has now been rundown so that even were there to be a dramatic late volte-face by the leadership there is probably insufficient time for the necessary legislation to be passed through a divided Parliament.

 

So, with great sadness, my view is that Remain is no longer a viable option. There is neither the time nor the political will.

 

The Withdrawal Agreement

Given the premise that Brexit is now inevitable, what is objectionable about the Withdrawal Agreement (ie if there must be a Brexit, what better agreement could there be)?

 

The answer from the perspective of the European Research Group  is the Irish backstop. In order to guarantee that there is no “hard” border between the north and south of Ireland there need to be no customs checks. This requires that there is a customs union between the north and south. By agreeing to the backstop the UK and the EU have restricted the options for the future relationship. Northern Ireland must remain within a Customs Union with the EU. The great concession by the EU, underplayed by the UK government, was to agree that this applied not just to Northern Ireland but to the UK mainland as well. So, the UK has obtained something inconsistent with Cecilia Malmström’s starting point. It has, at its option, the power to keep all of the UK in a future customs union with the European Union. The Withdrawal Agreement looks like a good deal for the UK given Brexit.

 

What the UK loses is the ability to impose a border between the north and south of Ireland (it could withdraw the rest of the UK from the Customs Union and impose a border between the mainland and Ireland). It is understandable how those who place no great store by the Good Friday Agreement may wish to oppose this, but it is very hard to understand what the objection of the bulk of Labour MPs and members to guaranteeing the lack of a border in Ireland could be.  It is unimaginable what the substantive objection of someone such as Jeremy Corbyn, who has campaigned throughout his adult life for the north to be united with the Republic, could be.

 

On 2 January My Corbyn gave as his reason for opposing the Withdrawal Agreement that it does not include a “full” Customs Union. This makes no sense. The Customs Union itself will be part of the future relationship: the European Union have made clear from the outset that it will not be agreed until after Brexit. The backstop however guarantees that there will be a customs union with at least Northern Ireland, and that the UK can require that it applies to the entire UK.

 

Labour’s actual objection is not to the Withdrawal Agreement, with which they have no serious complaint, but to the Tory government that will be negotiating the future relationship. That is, of course, fair enough, but leads to a nasty variant on the Prisoner’s Dilemma.

 

The Prisoner’s Dilemma

If the premise that Remain is no longer an option is correct, the only paths now open are the Withdrawal Agreement, or Brexit with no agreement. Renegotiating the Withdrawal Agreement is not an option at this stage, and it is unclear what the UK would seek to change in any event (pay less of course, but that isn’t going to be reopened). Unless the agreement is approved by Parliament, the default is no deal Brexit. It matters not a jot that there is no majority that would vote for a no deal Brexit in Parliament. That is the result. So, if the premise is correct, the only way of avoiding no deal is to support the Withdrawal Agreement, the only one that there will ever be.

 

Given that choice, I am sure that if any vote in Parliament could be done confidentially, the Withdrawal Agreement if it is the only viable alternative would pass with a large margin. There is a minority, including Mr Rees-Mogg who obtained a 2:1 in history, who taking a very long view of 50 years or more claim to be able to perceive that overall benefits will accrue eventually from a ‘no deal’ Brexit. But in the short, medium, and reasonably long term, the economic and other consequences would be so serious that only the minority European Research Group (and not all of them) would back it behind the veil of anonymity.

 

Unfortunately,  there are political costs for many MPs who back “May’s deal”. Those with ambitions within the Tory party (such as Raab and Johnson) will benefit if they oppose any deal, as Tory members prefer a no deal Brexit. Within Labour, the political cost for any MP who chooses to back a Tory deal (or even abstain) looks high as that reduces the chance of bringing down the government.

 

And so, the impossible seems possible. We might end up with no deal Brexit, even though the actual Withdrawal Agreement we have is the only one we’ll ever have (and is in many ways a good deal). MPs face a choice between the best option now available for which they may well pay a personal political price, or avoiding that personal cost and our leaving with no deal. Oh dear.