Pannick on Brexit

In today’s Times, David Pannick QC adopts an argument of Barber, Hickman and King as to why an Act of Parliament is required before Brexit can take place. It is not correct and so needs to be addressed.

 

The argument is that as acting under Article 50 alone commits the United Kingdom to withdrawal it is thereby inconsistent with the European Communities Act. An Act cannot be overturned by an exercise of a government power (“Royal Prerogative”). An Act is required to overturn an earlier Act. As the European Communities Act incorporated EU law into UK domestic law, so an Act would be required to bring to an end such incorporation.

 

The European Communities Act incorporates EU law into the UK domestic law. This includes whatever EU law is “from time to time” (ie changes to EU law occurring after 1972). Article 50 of the Treaty on European Union is part of that law. The European Communities Act 1972 requires that Article 50 be given effect. If under EU law, EU law ceases to apply to the UK, the European Communities Act requires that this be given effect under UK domestic law. Once two years have elapsed (if not extended) following notice under Article 50, EU law ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament itself is not an actor in international law.

 

So, not only is an Act of Parliament unnecessary to bring to an end the UK’s membership of the European Union, it is the European Communities Act itself that necessitates this conclusion. This conclusion is not only not inconsistent with the European Communities Act, it is required by it.

 

Put another way, it is simply an error to think that as an Act was required to incorporate EU law, so it is required to remove it. Once Art 50 has been followed, there is nothing to incorporate.

 

Barber, Hickman and King call analysis such as the above “formalistic”.  I would give it a different label. Legal.

 

 

 

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Does Brexit Require Legislation?

Assuming the UK’s exit route from the EU is Art 50 of the Treaty on European Union, can this be invoked without resort to an Act of Parliament? This has implications among other things for whether there is a Scottish power to block Brexit.  Lord Lester of Herne Hill asserts in the Times that an Act would be required, and there is a detailed argument by Nicholas Barber, Tom Hickman and Jeff King that agrees. David Cameron took the opposite position in his resignation speech. I think Cameron is clearly correct, and will here explain why.

 

International Law and Domestic Law

The primary source of international law today is agreements between states. International law is binding upon states, not the individuals and entities within states who are not parties to these agreements. States themselves are like corporations: they are legal constructs with no physical existence (despite all the trappings of flags and so on). They can only act through real world agents. Which agents have the authority to bind states?

 

The answer is the governments of those states. If the UK government enters into a treaty with Ruritania, that binds the UK. An Act of Parliament is neither necessary nor sufficient as a matter of international law to bind the UK. Once upon a time, these agreements would have been entered into by monarchs. Today they are entered into by the UK government, usually acting through its Prime Minister. This does not enable the UK government to change UK domestic law. If UK domestic law says “X” and the UK government enters into treaty obligations that say “not-X” UK domestic law remains “X”. The two bodies of law, binding on different entities, will say different things

 

Such agreements do not become incorporated into the UK’s domestic law without more ado.The European Union is the product of several such international agreements. Just as the Human Rights Act incorporates the European Convention on Human Rights into UK domestic law, so the European Communities Act 1972 incorporates the “rights powers, liabilities, obligations and restrictions from time to time created by or under the [EU] Treaties” into UK domestic law. It is through this route that the laws of the European Union are binding on us within UK domestic law.

 

Is Repeal of the European Communities Act required?

One route for removal of EU law from UK domestic law would be to simply repeal the European Communities Act. This however would place the UK in breach of its treaty obligations under international law, and is, as a result, an inconceivable option.

 

However EU law provides its own internal mechanism for change. It is for this reason that fresh legislation is not required each time a new regulation or directive is set down. The European Communities Act incorporates such “rights, powers etc” as from time to time apply to the UK under the Treaties. If under those Treaties no “rights, powers etc” apply, no fresh Act is required to effect such change.

 

Article 50 of the Treaty on European Union provides

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

 

If this procedure is followed, then there is simply nothing left for section 2 of the European Communities Act to bite upon. The UK is not bound by EU law, and there is nothing left for the statute to incorporate into our domestic legal order.

 

It is for the government, not Parliament, to act for the UK both in entering into and in exercising powers under international law. Nothing in the European Communities Act either expressly or implicitly alters that. That is what our law says with regard to Art 50(1). Once the Article 50 procedure has been followed, there would be no further need to repeal the European Communities Act. Domestic law incorporation falls with the international obligations.

 

Populism and the European Union

Democracy is dangerous. Plato thought it the worst possible form of government. Decisions would, he thought, be made by those best able to sway the mob, rather than by those with greatest wisdom. After the last few weeks of the EU referendum campaign, many will concede he had a point. Modern day commentators who moan about the influence of the tabloid press are misdirecting their criticism. The overwhelming responsibility for how votes are cast lies with those who cast them. Though they feel they cannot say it, democracy should be the real focus of their disapproval.

 

The American founding fathers knew the dangers of majority rule well. It was for this reason that the US Constitution is structured in such a way as to try and create a number of checks and balances within the system: a bicameral legislature with each chamber elected on a different basis, a separate executive, civil rights embedded in a hard to change constitution guarded by an independent judiciary, and powerful individual states.

 

One check against populism in the United Kingdom is the European Union.  It stops Member States from doing popular, but foolish, things. In this regard it is a politically centrist enterprise. I will give fours examples of populist policies that may be unwise, two from the right and two from the left. What I shall say about them will be necessarily brief, and I realise that there is much more indeed that can be said for and against each of them. That is not the point of this post.

 

Immigration

Does it make sense to prevent someone living in Coventry from working in Birmingham? A Scotsman from working in Wales? An Irishman from working in England? A Pole from working in the United Kingdom?

 

Restricting free movement of persons is popular with some, but makes little economic sense. We all of us benefit in the long run from there being no barriers to our working in the neighbouring village, town, and country. As barriers to free movement of people are withdrawn, there will be losers from this process. Unfortunately, the large overall benefit to people generally is diffuse, whist the harm to those adversely affected may be felt acutely. Whenever something goes wrong either in our own lives or in society, it is also tempting to blame the ‘other’. So, populist politicians of the right often seek to restrict immigration.

 

The EU stops politicians from doing this insofar as free movement within the EU is concerned. Populism is constrained.

 

Workers Rights, Environmental Protection and Regulation

Policy makers often face prisoners’ dilemma problems. If country A undercuts country B’s workers’ rights (or taxes, or environmental protection etc) it may benefit as businesses will move to country A where operating costs are consequently lower. This creates an incentive for country B (and C, D, E) to go still further. Beggar thy neighbour policies of this kind can best be combated through collective action. Form a club, with rewards, under which such undercutting is not possible. Members of the club should always be mindful of the benefits this may give non-members in certain markets, but overall, overtime all will be better off if the club is sufficiently large.  This is central to the purpose of the European Union.

 

Protecting Businesses

When jobs are to be lost in an industry that is ‘strategic’ some will call for intervention to save it. A recent example was the possible closure of the Port Talbot Steel Works by its Indian owners Tata. Jeremy Corbyn repeatedly called for government intervention to save the works, by, for example, the government buying British steel on preferred terms. Similar nationalist sentiments are often expressed when a foreign buyer seeks to takeover a major British company. Even where there are independent bodies at national level to supervise takeovers, there may be enormous political pressure brought to bear to give a ‘home’ decision.

 

Protectionist measures like this harm everyone overtime. If the Chinese wish to sell us steel at a price lower than we can produce it for, lucky us. We (by which I mean our overall collective interests) have no more strategic interest in the production of steel than of onions. Again however, the benefits from not adopting protectionist policies are diffuse, whilst the pain for those adversely affected may be serious. The EU enables the politicians of Member States to do what they know (or should know) is in the longterm interests of all by tying their hands through the rules of the club.

 

Free Trade

The benefits of the North American Free Trade Association far outweigh the costs. Trade between Mexico and the United States has exploded over the last twenty years, much to the benefit of both. If an equivalent deal could be struck (the TTIP) between North America and Europe, the benefits would be potentially enormous.

 

Again, there are losers from free trade. It was no surprise that President Hollande expressed the view that France would say ‘non’ to any deal. If such a deal with great overall benefits can be struck by the EU, the objections of politicians of particular states who are constrained by particular interest groups may be overcome.

 

Centrism and the United Kingdom

One similarity of the 1975 and 2016 referendums is that it is the political centre (then Heath, Jenkins, and Thorpe, now Cameron, Cooper and, I suppose, Farron) who favoured membership of the EEC (now the EU), whilst it was and is the populists of the left (Tony Benn) and right (Enoch Powell) who oppose it. What has changed is the centre of political gravity of the UK. Back then, the Tory party overwhelmingly backed membership, as they saw it as a bulwark against socialism. Today, as that fear has receded, Labour is now far more the party of Remain, citing as a reason the damage a right wing government could do outside. That the voices of the left in favour of Leave are so muted is probably a product of a populist member of the left as leader of the Labour party who, constrained by collective responsibility, has been required to campaign for Remain. Those loyal to him have been reluctant to rock the boat. The downside has proven to be a lacklustre campaign by Labour as the leader and the shadow Chancellor are, at best, ambivalent about the EU Project.

 

The largest difference between now and the 1975 referendum is immigration. Even Powell made nothing of this 40 years ago, as there was no prospect of any imminent influx of Dutch and German builders into the UK of the 1970s.

 

Can the centrists win again? Possibly the largest difference between the UK and continental European countries is that the UK has not fallen into the hands of populists. The need for restraints is as a result less widely understood. For founding member states, such as Germany and Italy, this was central to their reasons for the European project. For some Member States, such as Greece and Spain, the memory of dictatorship is much more recent, whilst for others, such as Poland or the Czech Republic, the European Union has offered a secure basis for the transition from Communism. Even France is on its fifth attempt at a republican system of government. The dull centrist politics of the UK is unusual, and so we do not perceive the need for the safeguard.

 

At one time the United Kingdom’s constitution did possess checks and balances that inhibited popular rule. These were of a kind that nobody would wish to see return.In the nineteenth century, and into the twentieth, the hereditary House of Lords and the Monarchy provided different centres of power from the elected Commons. Since, at the latest, World War II this has not been the case. Today the checks in place are our membership of the European Union and the constraints imposed by the European Convention on Human Rights and its domestic law incorporation by the Human Rights Act. Much of the opposition to both comes from the same people.

 

For decades after the war, a kind of consensus politics, Buttskillism, dominated public life. The United Kingdom was, at that time, a relatively homogenous society. With memories of the war still fresh there was a degree of deference towards the officer class of Attlee, Macmillan, and Heath. This masked the need for balances within the political system. This absence is especially dangerous in a first past the post electoral system where a majority of seats is usually won with a plurality of votes.

 

That world of 40 years ago has disappeared. Today, for many reasons, we live in a far more pluralist society than we once did. The post-war consensus is long gone. Populism is on the rise. This takes the form of sectionalism in Scotland and, to a lesser degree, Wales. They offer the same kind of analysis, blaming the authority at the centre for local ills, as do those who wish to leave the European Union. The current leadership of the Labour party, with its break from centrism was unimaginable 15 years ago.

 

In the 1970s the press uniformly favoured the UK remaining within the EEC. Today a majority by sales favour leaving the EU. It is impossible for modern day MPs many of whose working life has been largely confined to the role of special advisors (SpAds), to convey as much authority as in 1975  Jenkins, Healey, Heath or Whitelaw did, who had all served in the War. For one reason or another few current front rank politicians are as impressive as Shirley Williams (Remain) or Barbara Castle (Leave). In a world of beige politicians to whom we do not defer, the populist can thrive,

 

As an inevitably remote constraint on populism, the European Union has for decades been an easy target for politicians of all parties to use to blame for inaction. “We cannot do anything about [Issue X] because of the European Union, blame it not me.” The European Project has itself been carried forward with occasional hubris, as exemplified by the general misfortune that is the euro, undermining the aura of success that it once had. As a result, it is much harder today for the centre to hold than it was in the 1970s. The successors of Powell and Benn may this time win. For myself, and fully aware of the flaws of the European Union, my judgement is that it is important that we Remain. We must be protected from ourselves.

 

In Praise and Defence of the Referendum

One consequence for me of the referendum campaign that we are currently living through is that I have discovered I am far more in favour of UK membership of the EU, and of the entire project, than I had realised. I have watched with growing alarm as polls have shown a large shift in favour of Leave. There are many things I dislike about the EU. As a lawyer, I find that the quality of law produced by its institutions is often second or third rate. Judgments of the CJEU whilst better than they were, are always terse, frequently obscurely reasoned and sometimes difficult to justify. They are also very often difficult to reverse when wrong. The European Union does not, and cannot for the foreseeable future, form a single polity, which inevitably creates a democratic deficit however perfect its formal structures may be. This in turn necessitates that the ‘European Project’ is carried out with restraint. Unfortunately it has sometimes been carried forward hubristically. The exemplar of this is the euro,  a bad idea whose time had come, which has caused years of economic underperformance in the eurozone.

And yet, I find the prospect of leaving the EU to be a terrible one. In legal terms, harmonisation of the laws of member states has not only enabled the functioning of an internal market but substantively improved UK domestic law regardless of the EU. Private international law, company law, and competition law are the (politically neutral) areas that I know about where I think this is so. The UK’s relative economic performance improved almost immediately from the point the UK joined the EU, and if we wish to make ourselves poorer than we otherwise would be, leaving is the best and easiest way to do so. More abstractly, being part of a club with the Germans, Poles, Latvians, Spanish and so on has a civilising influence on the UK.

Referendums in General

Direct democracy is unlikely to work well. Most individuals do not have the time to become informed about most political issues. Given the opportunity costs involved, and the small contribution of their individual vote, it makes no sense for most individuals to become properly informed about, say, Keynesian economics before a vote.

Second there may be majorities for positions that are mutually inconsistent. There are probably current majorities in the UK for higher spending, lower taxes, and reducing the deficit for example.

Third and related, is that referendums offer a binary choice, in/out, yes/no. There is no room for “yes, but”.

Fourth referendums are susceptible to either misuse or capture by demagogues. As Plato warned, and as we are in the process of re-discovering, decisions are swayed by those best able to swing the popular mood of the mob, and not those with technical understanding of the issues.

Representative democracy seeks to avoid these and other problems. So, we elect representatives who do have time to become properly informed about a range of issues. They are responsible for selecting governments who take together issues in the round in making decisions. Independently minded MPs, such as the tragically murdered  Jo Cox, will not prove as susceptible to the charms of the populist presenting easy solutions to difficult problems.

Overtime, experience has taught us that representative democracy works well in societies such as ours. Where referendums are in more general use, such as in California, they have not led to good government.

The EU Referendum

In certain limited situations, of which the EU referendum is one, referendums are not only a good idea but the only way of overcoming a democratic deficit.

First, the party system may mean that a hotly disputed issue finds all the major parties on one side, offering the voter no choice and dissent no voice. In relation to EEC/EC/EU membership all three (four?) major UK parties have long been in favour of membership, with the brief exception of Labour in its 1983 manifesto. This means that our representatives are skewed one way on the issue. Some issues, such as capital punishment or abortion, are not part of the platform of political parties so that a ‘free’ vote of representatives may take place to determine the matter. The UK’s relations with the EU is not of that kind.

Second, within the UK’s system of Parliamentary Democracy, there are some decisions that Parliament itself cannot legitimately take. This was Cameron’s original argument in favour of a referendum in his Bloomberg speech. So, just as one Parliament cannot bind its successors, or one Parliament cannot abolish future Parliaments, one Parliament cannot take the decision to hand over its powers to another person or body. These systemic questions cannot be resolved by part of the system itself. Since the last referendum in 1975 the scope and nature of  what is now the EU has changed. So, legitimacy requires a referendum to resolve the issue. It is true that in the past, changes such as the Act of Union between England and Scotland, or the power of the House of Commons to overturn the House of Lords, were not validated by a referendum. On the merits however, so much the worse for the past.

Third although the angry (male) voices on social media and elsewhere during the Scottish referendum campaign and the current European one do their best to persuade us otherwise, getting the population to discuss and think about hard issues is a good thing in itself. Resolving disputes through democratic process rather than, say, judicial decision, settles the matter for the losing side in a way that allows them to accept it. The Irish constitutional referendum on same-sex marriage was a far better way of settling the question than was the decision of SCOTUS in Obergefell v Hodges.

The United Kingdom does not have a codified Constitution contained in a single document. Like all legal systems, such as the EU, it has a Constitution because that is necessary in order to determine what the laws are. Constitutions need rules for how they may be changed. The UK’s rules of change are determined by principle and convention. In principle, it would not be legitimate to have significant (meaning?) Constitutional change carried out by a bare Commons majority. Increasingly therefore a Convention has arisen since 1975 that such changes require a referendum.

The Result

In the UK’s legal system, referendums have no legal consequence. They are politically binding only. But binding they are. I fear that the result of the current one may not be to my liking, but that in itself is not an argument for not having it.