Derogating from the Convention



“Much of the litigation we face comes from the extension of the European Convention on Human Rights to the battlefield. This is damaging our troops, undermining military operations, and costing taxpayers’ millions. So I can announce today that in future conflicts we intend to derogate from the Convention. That would protect our Armed Forces from many of the industrial scale claims we have seen post Iraq and Afghanistan. “


Michael Fallon, Secretary of State for Defence, 4 October 2016


This is nonsense.


To understand why, it is necessary to understand why it is now the case that claims can be brought under the Human Rights Act for actions taken by British troops serving abroad. At one time it was thought that the jurisdictional scope of the European Convention was limited to the territorial jurisdiction of signatory states. In the ECtHR’s decision in Al-Skeini this was decisively abandoned and the test became “wherever a state through its agents exercised control and authority over an individual.”


Now, my view is that Al-Skeini  was plainly wrongly decided, both according to the text of the Convention and the ECtHR’s earlier jurisprudence. I can, therefore, well understand the government’s frustration at losing. The United Kingdom Supreme Court followed Al-Skeini in determining the scope of the Human Rights Act in Smith v MoD


Can this result be bypassed by making a derogation from the Convention? Article 15 provides



1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.


This provision does not permit a derogation from all the obligations under Convention whenever a signatory state is at war. If it did that would render the result in Al-Skeini redundant. Where the court finds, as it did with respect to the United Kingdom after the September 11th attacks, that there are grounds for making a derogation, this does not provide the state with a blank cheque. Derogating measures must be such as are strictly required by the exigences of the situation. The kinds of claims brought against British troops involve actions that, on no view, are necessary for the conduct of a war.


So, whilst it is possible for the United Kingdom under its own domestic law to restrict the application of the Human Rights Act (but in a way that will place us in breach of the Convention as we will no longer be providing an effective remedy for Convention violations as required by article 13), and certainly possible to extend combat immunity as it applies to claims at common law, we cannot simply create an immunity from suit for our armed forces that is compliant with the Convention.

Brexit in the Courts

The arguments for, and against, the legal challenge to the government’s power to trigger the process of the United Kingdom withdrawing from the EU without statutory authorisation are now in the public domain. My view is that the issue is a straightforward one of statutory interpretation, and the government’s detailed ground of resistance are particularly bad in making an easy issue appear complex and difficult.


Professor Mark Elliot has set out in detail a critique of the government’s case. Here I briefly summarise for a layperson the essence of what the government’s lawyers have got wrong.


Having a Power and Reviewing its Exercise


The central problem with the government’s case as presented is that it confuses the questions of whether (1) the government has the power to withdraw from the EU, and (2) the justiciability of the decision to exercise that power. This case concerns (1), not (2). Indeed, as the government has not as yet sought to exercise that power, any litigation on question (2) would be premature.


The central objection to the government alone being able to withdraw from the EU is that they would be doing so under the “Royal Prerogative” in a way that would overturn the European Communities Act 1972. As every first year student of constitutional law learns, the Royal Prerogative is , in Lord Bingham’s words, a “relic of a past age.” Can it really be the case that this anachronistic, idiosyncratic, undemocratic leftover could be used to overturn an Act of Parliament?


The straightforward answer to this question is that the exercise of the power under Art 50 is not being used to overturn or invalidate the European Communities Act. Art 50 is part of EU law just as much as any other article. Section 2 of the European Communities Act  incorporates into UK domestic law the EU law applicable to the UK “from time to time”. If EU law by its terms ceases to be applicable to the UK, it ceases to be incorporated into UK law. Once two years have elapsed (if not extended) following notice under Article 50, EU law by its own terms ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament is not an actor in international law.This is the result required by the European Communites Act itself, which would be the instrument by which EU law ceases to be incorporated. The Act is not being overruled but given effect to.


The Act that brought the United Kingdom into the European Economic Community, will also cause it to leave the European Union.


The relevant actors under international law for entering into treaties and exercising powers under them are necessarily governments. This is true of the UK as much as for any other country. There is nothing peculiar, idiosyncratic or archaic about who acts for the United Kingdom in international law: it is the government. However, if the UK government has a particular legal power, the question then arises as to whether the decision to exercise it is reviewable by a domestic court.


Courts will not overturn a government’s decision simply because the judge thinks it is the wrong one. The law has given the government the decision to make, not the judge, and the judge will often be in a worse position than the government to make it not having the relevant competence to do so. But this does not mean that government decisions are not subject to any oversight whatsoever. If, for example, the government had decided to invoke Article 50 for wholly arbitrary reasons, because the Prime Minister of the day objected to the colour of Angela Merkel’s hair, would that be reviewable by the courts? It is at least arguable that in such extreme circumstances it should be, even though it concerns a matter of foreign policy, just as other exercises of prerogative power are.


The legal effect of the referendum result is to close down any such argument. It is impossible to argue that if the government has the power to exercise Art 50 without further statutory authorisation that it would then be irrational to do so. I think it would be wrong, but that is an entirely different order of question.


It is therefore to say the least odd that the government’s case focuses on the second question of justiciability of the (as yet unmade) decision. It may well be that Brexit “is a matter of the highest policy, a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well suited and the Courts ill-suited.” But so what? That isn’t the issue.





The NEC and the Rulebook

I have argued before that it is arguable that the leader of the Labour party must obtain nominations of 20% of Labour MPs and MEPs (currently 50) in order to stand in any election if challenged. It cannot however be said that the contrary position is unarguable on the wording of the rules.


What is the role of Labour’s National Executive Committee?


The Rulebook

Clause VIII.3.m of the Labour rulebook states that part of the primary purpose of the NEC shall be:


to … give rulings … to ensure continued compliance with the party’s legal obligations….and to take action on the advice of the General Secretary to protect the party from actions by organisations or individuals who fail to comply with, or to co-operate with the party in meeting such legislative requirements.


As with so much else of the rulebook, this is infelicitously drafted. However, a natural reading of those words is that in case of dispute as to the meaning of the rules, it is for the NEC to decide on the correct interpretation. The purpose of this power is to keep disputes out of court.


Where parties have agreed that disputes are to be resolved by arbitration before any court action, and that such a ruling is binding on them, a court will respect this and not overturn any decision simply on the basis that it is not the one the court, if seized of the issue itself, would have come to.


So, given that the issue is a clearly arguable one, its resolution should turn upon the decision of the NEC.



The Lawyers’ “Coup”

Legal action has been commenced to attempt to block any attempt to trigger Article 50 of the Treaty on European Union, and thereby irrevocably start Brexit, without first obtaining Parliamentary approval.


My judgment as I have explained before is that this action is doomed to fail. Some serious lawyers disagree, whilst others do not. In practice, one legal smell test is whether, as a barrister, you would be prepared to stand up and argue a point that you personally consider to be wrong. Bad arguments sometimes win, especially if there are other good arguments (or the merits) on your side. On this occasion I consider the argument that an Act of Parliament is legally required to be so hopeless that I would not be prepared to stand up and make it. I don’t myself think the legal issue involved is complex, and so would urge interested lay people not to defer to authority but to think about the arguments for and against themselves (As however I post as an anonymous Mondrian symbol, I would say that wouldn’t I?)


That doesn’t resolve the practical question of whether it will be politically necessary to have a Parliamentary resolution. My guess is that it will, and it is completely certain that there will have to be a great deal of consequential legislation in many areas dealing with the domestic law consequences of Brexit. The practical significance of the absence of any legal requirement for legislation to carry out Brexit is that it means that it is unarguable that Scotland has any power to block the process.


Given what I consider to be the legal hopelessness of the action, the interests of those pursuing it would be furthered if it were not pursued. Better to leave the legal position uncertain, with apparently serious people favouring your view, than to have the issue resolved against you.


A further problem is that the action may be politically poorly judged. It can be, and is being, portrayed as lawyers (who are not popular) financed by the metropolitan elite trying to overturn a democratic decision. More fuel for the Ukip fire. The best tactic for the Remainer is energetic and passionate inaction, while the consequences of Brexit become apparent and the realisation that the desire of German manufacturers to sell cars to us won’t lead to our being able to cherry-pick the bits of the EU we like, sinks in.


But, however misjudged it may be, seeking declaratory relief before the High Court is not a ‘coup’. The claim that the people’s will trumps the law is the cry of the fascist. If someone wishes to bring this claim, let them, and lawyers are not to blame for that. In these days of apparent chaos and political conflict, hold on to the rules.


Article 50: Will it ever be invoked?

Article 50 is a one way street. Once it is invoked the Member State will leave, either once a withdrawal agreement is reached or after two years, whichever comes sooner. There is scope for this deadline to be extended, by unanimous agreement between Member States, but not on its face for the process to be stopped.


This means that as soon as a Member State invokes Article 50, its negotiating position for fixing the new terms of its relationship with the rest of the EU instantly worsens. In two years it will be out with no access to the European single market and trading on the same WTO terms as Yemen. It therefore made no sense for David Cameron to immediately invoke Article 50 after the referendum was lost, and nobody who had thought about it expected him to do so.


Mexican Standoff

This has created an impasse. It is not in the UK’s interests to invoke Art 50 before it has a deal, or at least the outline of one. It is also not in the interests of other Member States to negotiate until Article 50 has been invoked, and they have said they will not do so. So what now?


Legally, it is for the Member State to invoke Article 50. Nobody can legally force the UK to do so. One, possibly the only, way to in practice do so was to bounce the UK into invoking Article 50 by offering a deal subject to a time limit. “We’ll give you X, Y and Z, but this offer remains open for acceptance by invoking Article 50 only until 1 January.” By refusing to negotiate at all, other Member States have no practical means of applying pressure on the UK to start the process.


Outside is Worse

If you are, say, a French negotiator and another State seeks some kind of special deal, who are you more likely to give it to? A Member State of the European Union, or a non-Member State of the European Union?


If other Member States wish to see the club of the European Union continue, it is not in their collective interests to give a special deal on free movement to a member who is leaving. Put another way, although the deal Cameron secured struck some as being similar to the re-negotiation  achieved in 1975 by Wilson, that was as good a deal as seems likely to be achieved. A deal struck between parties trying to retain goodwill within the club is going to be better than one struck by the same parties when one has left and the goodwill is gone. There is not going to be a good deal on offer.


Inherent Contradiction

In a speech today, John McDonnell called for the UK to have continued access to the European Single Market and an end to Free Movement of Persons. This is incomprehensible. It is like asking for a four sided triangle. Part of what makes the single market a single market is free movement of persons. Without it, it is something else.


What did the referendum mean?

One of the central problems with a referendum is that it offers a binary choice, on this occasion In or Out. Within the ‘Out’ camp there were at least two strands. One group wished to regain UK sovereignty, but would wish to retain full access to European markets through the European Economic Area or some other arrangement. For this group, achieving that would mean keeping free movement of persons. The MEP Daniel Hannan would favour that option as it now seems would Boris Johnson MP. For others, regaining control over immigration, but at the cost of losing free access to the European market, was the goal. The Ukip MEP Nigel Farage favoured this option, as we now learn does Michael Gove MP.


Now, for most voters, the European Union is a low salience issue, and so it seems possible that for many, possibly a majority, of those who voted to leave, reduction of immigration was the most significant factor. They fell into the second camp. But the gap between Leave and Remain was small: 52%-48%. IF the UK is not to remain in the EU, there is almost certainly a majority both within Parliament and the population at large for an arrangement that keeps the UK within the single market (and thereby retains freedom of movement).


Push the Button?

If, as seems very possible, no deal can be reached on acceptable terms whereby the UK remains within the single market but leaves the European Union, what should any British government do? If they opt to leave anyway this would not be to give effect to what the majority of British voters (Remain Plus the Johnson Leavers) probably wanted. Indeed, as they were repeatedly told that a deal could be struck, this was not the basis upon which they voted.


Now there are very powerful reasons for respecting the referendum result. I also think there were good reasons why the referendum was held. Given where we are however, I now think there are good reasons for thinking that no acceptable deal will ever be struck, and no responsible government should invoke Article 50. If that is so, we will have a long period of uncertainty, at least until another election, but will not be leaving the EU. At least, not any time soon.

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.




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.



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.

Human Rights and the EU

Today we have a report from the European Union Committee of the House of Lords, chaired by Lady Helena Kennedy QC, on “the UK, the EU and a British Bill of Rights”.


When I discovered that this Committee was going to do a report on the potential impact of a British Bill of Rights I was initially confused. The European Convention on Human Rights, the European Court of Human Rights and the Human Rights Act are nothing to do with the European Union specifically. Having now read the Report I am still at a loss to discover why this Committee thought this issue was within their remit.


The Report

The Secretary of State for Justice’s evidence to us in the course of this inquiry was thus the first public statement in any detail of why the Government thinks a British Bill of Rights is necessary and of what it might contain.


This report assesses that statement, and considers the likely impact of a British Bill of Rights on three areas: on human rights litigation in national courts under the EU Charter of Fundamental Rights; on the UK’s EU legal obligations and international standing; and on the devolved settlements


The first issue (the British Bill of Rights and its contents) is nothing to do with the European Union. The answer to the second (the Charter) is, obviously, “none” as the UK cannot legislate to overturn EU law (without withdrawal).  The impact on the UK’s EU legal obligations is, obviously, “none”. The impact on the UK’s international standing of a British Bill of Rights is unlikely to be significant provided that the UK remains a party to the Convention and remains complaint with its international obligations. Again, this is nothing to do with the EU specifically. How the repeal of the Human Rights Act impacts on the devolution settlements is a tricky issue but, again,  nothing to do with the EU.


Issue 1: The Case for a British Bill of Rights

The conclusion of this section was the obvious one for anyone familiar with Gove’s evidence to the Committee


The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act


As I have said before, this is largely inevitable if the UK wishes both to remain within the Convention, and comply with Article 13, which requires an effective remedy for breach of Convention rights before domestic courts. (Article 13 is curiously unmentioned by the Committee).


One could, of course, as a result draw precisely the opposite conclusion from that of the Committee. If the proposed British Bill of Rights isn’t going to change very much, it is probably harmless and not worth worrying about.


Issue 2: The EU Charter


The EU Charter of Fundamental Rights is much misunderstood. Unlike the rights under the Human Rights Act it has no equivalent direct effect. EU citizens cannot rely upon it directly against member states. It is parasitic in its application upon other rights that citizens have under EU law. Its impact is therefore necessarily limited, and the practical impact of the Charter has been very small. The list of rights protected under the Charter is quite different from those under the Convention (reflecting their different purposes). (As the Charter applies to the application of EU law and EU institutions, my view is that the UK’s ‘opt-out’ from it is largely symbolic.)


A good example of how the Charter ‘piggy backs’ upon other EU rights is the Delvigne caseA French prisoner argued that his prohibition from voting in European Parliamentary elections contravened Article 39(2) of the EU Charter requiring universal suffrage. The CJEU ruled that the exclusion in this case was lawful as it was proportionate to the gravity of the crime committed. It is perfectly possible to imagine a case where a member state sought to restrict the right to vote in EU elections, but this was considered contrary to EU law as contrary to the Charter. However, this would and could only apply to elections to the European Parliament, it would have no effect in relation to elections to Westminster or at a local level.


What possible impact could any British Bill of Rights have on the Charter? The answer is clearly none.It is simply part of EU law and the UK can no more legislate to overturn it than it can legislate that UK fishing vessels are British owned.


Could the Charter ‘fill the gap’ if the Human Rights Act were simply repealed? Obviously not. Their scope is completely different, one applying to the interpretation of UK legislation and UK public bodies, the other to EU law and EU institutions. The Committee by contrast concludes


The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter.


This is very difficult to understand (especially when no example of how this could conceivably happen is given). How could the Charter be invoked directly before the UK courts? Why would the impact on EU law and institutions increase if the Human Rights Act were repealed?


If we abolished the Human Rights Act tomorrow, would this have any impact whatsoever upon the scope and application of the EU Charter?




Issue 3: The UK’s Obligations under EU law

The Committee briefly discusses the issue of the primacy of EU law over UK domestic law. The position here is clear and straighforward: EU law has primacy. This is nothing to do with the Human Rights Act.


Issue 4: The Impact on the UK’s membership of the EU


Is being a signatory to the Convention a precondition of the UK’s continued membership of the EU? The answer is no. Although there is now a requirement that new candidates adhere to the Convention, this was not a condition of the UK’s membership.The committee’s conclusion is


We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States.


Are there informal legal obligations?


Without doubt, the UK’s withdrawal from the European Convention would adversely impact on our standing in the Council of Europe, and more widely in the international community. This does not seem to me to be anything specifically to do with the EU.


Issue 5. The Impact of Repealing the HRA on Devolution

This is  difficult question. In relation to Northern Ireland, the Good Friday agreement is predicated on Convention rights being incorporated into the law there (although not on the HRA specifically).


On Scotland, the Human Rights Act itself is not a devolved matter (the Committee seem to assume that it is). By contrast the implementation of Convention rights is not  a reserved matter. We are told that repealing the Act in Scotland would be “entering into unchartered constitutional territory.” As an analysis of the legal position this does not, to say the least, suffice.


Whatever else may be said, it is hard to see how this is anything to do with the European Union specifically (unless perhaps everything in the UK is an EU matter?)



Critics of the Convention are often rightly accused of willfully confusing the European Union and the European Convention on Human Rights. The European Court of Human Rights is often called an “EU court” by publications such as the Daily Mail.


It is best to keep the quite separate issues raised distinct.