Jonathan Cooper OBE Doughty Street Chambers 16 November 2016

Transcription

1 Jonathan Cooper OBE Doughty Street Chambers 16 November 2016

2 Jonathan Cooper OBE Doughty Street Chambers 16 November 2016

3 happy in England in the EU family lose their home joins the Brexiteers march A broken man in Brexit Britain

4 Average household incomes have increased five-fold in real terms over the last 50 years The largest increase was in the 1980s, when household wealth doubled from the previous decade Only in 2008, as a result of the financial crisis and subsequent recession, has this increase slowed Then in 2013 UK S standard of living rose to 4 th place in the EU Can this be a benefit of EU membership?

5 Working time Maternity Parental leave Equal pay Equality & Nondiscrimination Health and safety EU Charter of Fundamental Rights

6 One of the fundamental principles of free trade within the EU is freedom of movement of goods, services, capital & people The UK works on the same principle It is impossible to have one without the others: anything less would constitute a trade barrier Any trade agreement with the EU is likely to insist on this principle Any free trade agreement with countries outside the EU will also turn on issues of visa-free travel and freedom of movement (India, China)

7 According to the Leave campaign, British people will be better off outside the EU But how does Britain compare with other member states in terms of income equality? The ratio of the average income of the richest 10% to the poorest 10% United Kingdom Italy Netherlands France Germany Sweden United Kingdom Italy Netherlands France Germany Sweden

8 Disillusionment with the EU is at an all-time high. That is why I am in favour of a referendum. I believe in confronting this issue - shaping it, leading the debate. Not simply hoping a difficult situation will go away. when we have negotiated a new settlement, we will give the British people a referendum with a very simple in-or-out choice to stay in the EU on these new terms; or come out altogether. It will be an in/out referendum. If we left the European Union, it would be a one-way ticket, not a return. David Cameron January 2013

9 According to Jonathan Freedland in the New York Review of Books (August 2016): David Cameron promised a referendum on Europe as a tactic to appease members of his Party angry over his support for equal marriage. The polls at the time Cameron promised a referendum indicated that the Conservatives would not win an overall majority in the 2015 General Election. The referendum promise was not one that Cameron believed he would have to deliver on.

10 The Leave campaign say, Let s not listen to experts. But if we are about to get into a car and drive our children on a motorway, and a mechanic says, The brakes don t work, the petrol gauge is faulty, the steering isn t working, we wouldn t get in the car. David Cameron What we re seeing is a rise in the number of people who are dissatisfied, disapproving, distrusting of political institutions the establishment, the media and the experts. A certain proportion of people don t believe a word of what they hear from those they consider part of the metropolitan elite. You Gov "Every week we send 350m to Brussels. I'd rather that we control how to spend that money, and if I had that control I would spend it on the NHS. Gisela Stuart MP for Leave If leaving the EU significantly reduced national income, the impact on the public finances would dwarf the UK's current overall net contribution. Institute for Fiscal Studies

11 On June the United Kingdom voted to leave the European Union by 52% to 48% In reality, 37% of those eligible voted Leave, 36% voted Remain and 27% did not vote Was this truly a mandate, given the lack of clarity over what Leave actually means?

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13 Percentage ENGLAND SCOTLAND WALES NORTHERN IRELAND Axis Title

14 ENGLAND SCOTLAND WALES NORTHERN IRELAND LEAVE REMAIN

15 LEAVE REMAIN

16 In a referendum this would be unfinished business by a long way. If the remain campaign win two-thirds to one-third that ends it. Nigel Farage May 2016

17 St Theresa? Prime Minister Theresa May has promised that Brexit means Brexit But is it her decision to trigger the process?

18 Article 50 states: Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. A Member State which decides to withdraw shall notify the European Council of its intention. 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 If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

19 In order to withdraw from the EU, what are the UK s constitutional requirements that the UK will leave in accordance with?

20 Does the UK have a constitution or is it a system of government?

21 The UK has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations. Some of it is written, in the form of statutes which have particular constitutional importance. Some of it is reflected in fundamental rules of law & conventions recognised by both Parliament and the courts. The UK is a constitutional democracy framed by legal rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws.

22 1. The law must be accessible, intelligible, clear and predictable. 2. Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion. 3. Laws should apply equally to all. 4. Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred reasonably and without exceeding the limits of such powers. 5. The law must afford adequate protection of fundamental human rights. 6. The state must provide a way of resolving disputes which the parties cannot themselves resolve. 7. The adjudicative procedures provided by the state should be fair. 8. The rule of law requires compliance by the state with its obligations in international as well as national laws.

23 The most fundamental rule of UK constitutional law is that Parliament is sovereign Legislation enacted by Parliament is supreme Parliament can, by primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation The only exception is the European Communities Act 1972 (ECA) which gives precedence to EU law But Parliament remains sovereign and supreme. Parliament has power to repeal the ECA 1972.

24 Magna Carta 1215 establishes the right to due process Bill of Rights 1689 asserts certain rights of Parliament and the individual, and limits the powers of the monarch Crown and Parliament Recognition Act 1689 confirms the succession to the throne and the validity of the laws passed by the Convention Parliament Act of Settlement 1701 settles the succession of the Crown Acts of Union 1707 union of England and Scotland Act of Union 1800 union of Great Britain and Ireland Parliament Acts 1911 and 1949 assert the supremacy of the House of Commons Life Peerages Act 1958 establishes standards for creation of life peers Emergency Powers Act 1964 provides power to employ members of the armed forces in work of national importance

25 European Communities Act 1972 incorporates EU law into UK law House of Commons Disqualification Act 1975 prohibits certain categories of people from becoming members of the House of Commons Ministerial and Other Salaries Act 1975 governs ministerial salaries British Nationality Act 1981 revises the basis of British nationality law Senior Courts Act 1981 (originally Supreme Court Act 1981) defines the structure of the Senior Courts of England and Wales Representation of the People Act 1983 updates UK electoral process Scotland Act 1998 creates Scottish Parliament and devolves certain powers to it Government of Wales Act 1998 creates Welsh Assembly and devolves certain powers to it Northern Ireland Act 1998 creates Northern Ireland Assembly and devolves certain powers to it

26 Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law House of Lords Act 1999 removes most hereditary peers from House of Lords Civil Contingencies Act 2004 establishes a framework for national and local emergency planning and response Constitutional Reform Act 2005 creates the Supreme Court of the United Kingdom and guarantees judicial independence Constitutional Reform and Governance Act 2010 reforms the Royal Prerogative and makes other significant changes Fixed-term Parliaments Act 2011 introduces fixed-term parliaments Succession to the Crown Act 2013 alters laws of succession

27 Professor A.V. Dicey, An Introduction to the Law of the Constitution Parliamentary sovereignty means that Parliament has: the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. Lord Bingham of Cornhill in R (Jackson) v Attorney General[2005] The bedrock of the British constitution is the supremacy of the Crown in Parliament

28 The extent of the powers of the Crown under its prerogative are delineated by UK constitutional law The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. Burma Oil Co (Burma Trading) Ltd v Lord Advocate [1965] Parliamentary sovereignty means that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers The Crown has only those prerogative powers recognised by the common law

29 The Crown (i.e. the executive government) is subordinate to law Since before the Glorious Revolution of 1688, this has been the foundation of the rule of law in the United Kingdom The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm & The King hath no prerogative, but that which the law of the land allows him. Sir Edward Coke, The Case of Proclamations (1610) 12 Coke s position was confirmed in the Bill of Rights 1688

30 The power to ratify and make treaties The power to declare war and peace The power to deploy the Armed Forces overseas The power to recognise states The power to accredit and receive diplomats

31 ECA 1972 gives directly effective EU law superiority over primary legislation a constitutional statute not subject to the usual wide principle of implied repeal by subsequent legislation could only be repealed or amended by express language in a subsequent statute or by necessary implication from the provisions of such a statute all directly applicable EU law is made part of United Kingdom law and is enforceable as such

32 Section 1(1) states, A referendum is to be held on whether the United Kingdom should remain a member of the European Union The remainder makes provisions for holding the referendum The Lord Chief Justice in Miller a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act Clear briefing paper to MPs explaining that the referendum would have advisory effect only A vote to leave the EU would inevitably leave many important questions relating to the withdrawal from the European Union

33 During debates on the European Union Act 2011, Lord Williamson of Horton proposed an amendment which would require 40% turnout of electorate for referendum on treaty changes This was removed in the Commons on second reading for the reason that it leaves the British people in real doubt about what the effect of their vote will be For the EU Referendum Act 2015, a simple 50% plus 1 vote (no turnout threshold stipulated) was required

34 The sole question in this case is whether, as a matter of the constitutional law of the UK, the Crown acting through the executive government of the day is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union. It is common ground that withdrawal from the European Union will have profound consequences in terms of changing domestic law in each of the jurisdictions of the UK. The legal question is whether the executive government can use the Crown s prerogative powers to give notice of withdrawal.

35 A notice under Article 50(2) cannot be withdrawn, once it is given; and Article 50 does not allow for a conditional notice to be given. A notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50 Do we need a reference to the CJEU?

36 Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union The effect of the giving of notice under Article 50 on relevant rights is direct, even though the Article 50 process will take a while to be worked through.

37 It would be surprising indeed if, in the light of that tradition, Parliament, as the sovereign body under our constitution, intended to leave the continued existence of all the rights it introduced into domestic law by enacting section 2(1) of the ECA 1972 subject to the choice of the Crown in the exercise of its prerogative powers as to whether to allow the Community Treaties to continue in place or to take the United Kingdom out of them. It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body. Lord Browne-Wilkinson, R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995]

38 Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again. Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.

39 With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend and on whose continued existence the wider rights of British citizens also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU. In our judgment, the clear and necessary implication from these provisions taken separately and cumulatively is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers.

40 The outcome of the JR in Miller was obvious and inevitable Any first year law student could tell you that What does this reveal about the UK system of government and our understanding of it? What does it reveal about the Government?

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43 Can judges speak out and defend themselves? Would that involve them in politics?

44 The Lord Chancellor s Oath under the Constitutional Reform Act 2005: required to "respect the rule of law" and "defend the independence of the judiciary". The Lord Chancellor has stated that "it is unlikely that the High Court is imperilled by the opinions of any newspaper". What of public confidence in the judiciary and public understanding of the judiciary and the rule of law? Is this undermined? Decisions are reached by applying the law was this explained and defended? Must the court be imperilled before the constitutional and statutory duty of the Lord Chancellor kicks in?

45 Article 10(2) European Convention on Human Rights: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, or for maintaining the authority and impartiality of the judiciary.

46 According to statistics published by the BBC, there was a 42% increase in reported hate crimes in the second half of June 2016, compared with the same period in 2015 After a peak of 60% in August, the rate still remains 19% higher than in previous years All commentators have indicated Brexit as the principal impetus for this spike

47 The UK is, constitutionally, historically and of necessity, a representative democracy: we don t do direct democracy (other than local decisions on a local level). The UK system cannot accommodate it.

48 1975 EU Referendum 1979 Scotland Devolution Referendum 1979 Wales Devolution Referendum Northern Ireland Good Friday Agreement Referendum 1998 Northern England Devolution Referendums 2004 Alternative Vote Referendum 2011 English Mayoral Referenda 2012 Scottish Independence Referendum 2014 European Union Referendum 2016

49 1975 European Referendum White Paper: It may be argued that a verdict of such importance should not depend on a simple majority theoretically a single vote in an electorate of 40 million. A poll of a minimum size might be specified. Alternatively it might be laid that the number of votes cast or the number composing the majority should exceed a specified proportion of the total electorate. The Government are concerned that the size of the poll should be adequate, and they are confident that it will be so. They also consider it to be of great importance that the verdict of the poll should be clear and conclusive. In the circumstances they believe that it will be best to follow the normal electoral practice and accept that the referendum result should rest on a simple majority without qualifications or conditions of any kind.

50 Sir Patrick Nairne 1996, Independent Commission on the Conduct of Referendums: The main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy and whether the threshold should relate to the total registered electorate or those who choose to vote. Requiring a proportion of the total registered population to vote Yes creates further problems because the register can be so inaccurate. Some of the electorate may believe that abstention is equal to a No vote. Thus the establishment of a threshold may be confusing for voters and produce results which do not reflect their intentions. A turnout threshold may make extraneous factors, such as the weather on polling day, more important.

51 The casual nature of the system is a mess The UK system of government can manage referenda when they go the way the government want them to The system was & is wholly unprepared for the Brexit result The first past the post for General Elections may work when coupled with the checks and balances in the rest of the system Does 50% of the vote plus 1 work with complex questions of policy like leaving the EU? Would the UK reintroduce the death penalty, criminalising abortion and/or homosexuality on 37% of registered voters?

52 Referenda are frequently resorted to by populist, less democratic administrations. They give the veneer of democracy, but they are a blunt and unsophisticated tool Referenda are susceptible to demagogy and manipulation How can referenda be reconciled with representative democracy and UK constitutional traditions? Would the outcome of a referendum trump Parliamentary sovereignty? If the UK is to have referenda they need to be governed by an Act of Parliament The UK needs a Referenda Act Inevitably the EU referendum would not have satisfied it

53 Other states have opted for thresholds in referenda deciding major constitutional shifts In New Zealand, voters can petition for a referendum on any issue if 10% of the electorate sign a petition. The Supreme Court of Canada ruled in 1998 that a special majority requirement should be enacted in any secession referendum in Quebec The Clarity Bill stipulates that the outcome of any referendum concerning secession must be a clear expression of a will by a clear majority of a province to cease to be a part of Canada The bill, however, does not specify a percentage that represents a clear majority

54 The American Bill of Rights can only be amended by a special majority of Congress and a special majority of the states The same is true of the protection of rights in the South African constitution The Canadian Charter of Rights and Freedoms can be amended only by two-thirds majorities in both houses New Zealand and Israel, which, like Britain lack a codified constitution, both give special legislative protection to certain rights

55 Country Referendum mention in constitution Referendum required for constitution al change Constitutional provisions for referendums in noncon legislation Who triggers? Provision for qualified majority? Consultative or binding Austria Yes Yes Yes Govt/ml No Binding Belgium No No No Govt No Consult UK No No No Govt No Consult Denmark Yes Yes Yes ML Yes Binding Finland Yes No Yes Govt No Consult France Yes Yes Yes Govt No Binding Germany Yes No No NA No Binding Greece Yes No Yes H No Binding Iceland Yes No Yes H No Binding Ireland Yes Yes Yes H/ML Yes Binding Italy Yes No Yes E Yes Binding Netherlands No No No NA No NA Norway No No No Govt No Binding Portugal Yes No Yes H No Binding Spain Yes Yes Yes Govt No Binding

56 The consequences of the outcome of the EU referendum puts beyond doubt that our system of government is not fit for purpose The horse has bolted, but we could seek to remedy part of the problem by passing a Referenda Act 2016: Chilcott, the ongoing chaos around Brexit and the confusion about the HRA prove beyond doubt that now is the time for a written constitution We need a document to lead the UK into the 21 st century

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60 What is the purpose of democracy if it doesn t lead to an expansion of liberal values and a more even distribution of wealth?