Constitutional Law Group September 1, 2016 Europe, European Union, UK Parliament

Kenneth Campbell QC: Constitutional Discourse Post-referendum: Where Are We, and Where Are We Going Next?

Editors’ note: This is the first of two blogs by Kenneth Campbell reflecting upon the constitutional state of play as Parliament prepares to consider the Brexit process.

In common with other constitutional and EU law sites, this blog glowed white hot in the immediate aftermath of the EU referendum. Understandably, many commentators were occupied with the roles of the UK Parliament and the executive exercise of prerogative powers in the mechanics of the giving of notice in terms of Art 50. Given the nature of these issues, scholarly and practitioner comment has been taken up in wider debate, and Nick Barber, Tom Hickman and Jeff King’s contribution has perhaps been particularly prominent. As the new political season approaches, this post seeks to assess the state of play about several current and medium term issues.

Parliamentary debate

On 5^th September, the UK Parliament will debate calls for a second referendum. This follows an e-petition which gathered in excess of 4 million supporters in the aftermath of 23^rd June. There are at least two issues which may crystallise: referendum questions, and, secondly, the role of Parliament in the Art 50 process.

Referendum questions

Despite the questions about the representative character of Parliament, and the frankly unresolved tension in the relationship between Parliament and the executive (which have been debated on this blog by Ekins, O’Brien, Nehushtan and Young amongst others), it seems extremely unlikely that the outcome will be a second referendum, whether in the form of a re-run of the Leave/Remain poll, or of a poll seeking approval of the UK negotiating mandate. On this blog Stephen Tierney has discussed various aspects of the quality of the process around the 23^rd June poll, and while he is certainly right about the structural and regulatory quality of the process, the fact remains that much of the debate was not conducted at the level of sophistication or candour which the issues merited, and which by contrast, arguably, was seen in the 2014 Scottish independence referendum. The effect of those deficits on the outcome is imponderable and while Patrick O’Brien may be right that in a democratic polity people are entitled to change their mind, it is suggested that the need for stability in the political constitution implies that the opportunity for doing so is not measured in weeks or months but on a longer arc. Against that background, and given that the range of possible views about a negotiating mandate is much more diffuse than the readily put, if apparently less readily explained, question on 23^rd June, a referendum on the negotiating mandate seems impractical and politically unlikely.

On the other hand, Mike Gordon’s analysis of why a general election would be appropriate before the formal post-Art 50 negotiations begin is attractive. Such an election would, in principle, provide an opportunity for all political parties to articulate views on a range of issues germane to the Art 50 negotiations. An early election would of course require either a motion under section 2(2) of the Fixed Term Parliaments Act 2011, or, more radically, amendment or repeal of that Act. The interesting paradox being that a motion for an early election requires a two-thirds majority in the Commons, whereas amendment or repeal of the 2011 Act would be subject to an ordinary simple majority, albeit requiring the full legislative process of both Houses, with all the business management that implies.

Parliament and the Art 50 process

As a matter both of construction of the European Union Referendum Act 2015, and broader constitutional principle, it is clear that the result of the referendum is not binding on Parliament or the executive. It is equally clear that as a matter of both constitutional and party politics it will be treated as being the fixed point of departure: the Prime Minister’s “Brexit means Brexit” statement admits of only one meaning. Thus the political debate has centred on the Art 50 process, and on the question, discussed at length in a series of contributions on this and other constitutional law blogs, of the place of Parliament in that process. It appears that the Government’s position is that in the British constitution, Art 50 notice requires only an executive act, and more recent informed speculation ahead of the parliamentary debate on the outcome of the referendum restates that as the view of those advising the Prime Minister. No doubt the timing of such speculation is intended to shape the debate.

As indicated above, the forthcoming parliamentary debate is on the petition for a second referendum. However, as this will be the first substantive opportunity for Parliament to address developments over the summer, it is reasonable to anticipate the debate may range rather more widely. Whatever, the outcome of consideration of the petition, perhaps a more fruitful outcome might be forthcoming in the form of a clear expression of parliamentary will for some degree of supervision or at least engagement with the negotiation process. Given that one normative argument advanced by the Leave campaign was a reassertion of the role of Parliament, such an expression of parliamentary will would be difficult to dismiss. It is not implausible to anticipate calls for further, more substantive, debate on Art 50.

Judicial challenges

Irrespective of the outcome of the parliamentary debate on 5^th September, it is now certain there will be judicial consideration of the Art 50 process. Several applications for judicial review have been made to the High Court in London, with that in the name of Gina Miller being in effect the lead case. There is in addition a multi-claimant crowd-funded application which has been given permission to proceed. The de quo of the Miller application is that, contrary to the reported position of the Government, the domestic constitutional requirement is for parliamentary scrutiny and approval, as well as consultation with the devolved administrations in Scotland and Northern Ireland and the Welsh Assembly, before notice can be given under Art 50. Permission to proceed has been granted, and following a hearing on 19^th July, the court made a timetable order. That envisages that the Government must file its detailed defence by 2^nd September, and skeleton arguments for all parties – including any interveners – must be lodged by the end of September. It is possible that some of the claimants in other applications may apply to be joined as interveners in this case. It is envisaged that there will be a substantive hearing in mid-October. In order that the case, and, presumably, the Art 50 process, is not delayed unduly in the appeal stages, it is understood that the President of the Queen’s Bench Division, Leveson LJ, has indicated that in the event of an appeal, it would be appropriate to consider a ‘leapfrog’ appeal to the UK Supreme Court in terms of the Administration of Justice Act 1969, section 12. That may in part explain why recent reporting of the Government’s current proposed timetable for giving notice has slipped to ‘early 2017’.

There are also several applications pending before the courts in Northern Ireland for permission to bring judicial review proceedings there based on the relationship between the Belfast Agreement and Art 50. While there is currently less publicly-available material about those applications, it seems likely that, in addition to the arguments which are highlighted in the Miller application, there will be arguments around the particular structure of devolution in Northern Ireland. In particular, the idea of EU citizenship across the island of Ireland, and the embedding of fundamental rights derived both from ECHR and also from EU law.

Devolved institutional engagement

Despite political froth in the days after the referendum, there is no prospect of a veto by Scottish Parliament, for the reasons comprehensively given by Mark Elliott on his blog, and the contrary suggestions were a triumph of hope over the constitutional competence of the institution. Nonetheless, there undoubtedly is a need to consider the devolution dimension, both in terms of the practical politics, given the voting figures in Northern Ireland as well as Scotland, and also in shaping both the negotiating mandate and the inevitable consequential provisions legislation. The devolution dimensions will be addressed in a separate post.

Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher at Edinburgh University Law School.

(Suggested citation: K. Campbell, ‘Constitutional Discourse Post-referendum: Where Are We, and Where Are We Going Next?’ U.K. Const. L. Blog (1st Sept 2016) (available at: http://ukconstitutionallaw.org)).

7Comments

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1

Mike Tremblay on September 1, 2016 at 9:52 am
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Very helpful. Would you not expect the UK Supreme Court to refer to the European Court of Justice on Article 50?

For me, there are two issues that overarch the legal and constitutional contours.

The first, raised in this forum in the Canadian context, is the moral obligation that the decision to leave the EU entails. This is about choice making under high degrees of uncertainty, and with highly unstructured associated problems. Under such circumstances, the law is only a tool; it does not tell you where to look. Given that UK citizens will have a net diminution of their rights, I doubt a majority can force a minority into having fewer rights. The history of slavery should have taught us that. For May to act, “as Tudor monarch” as some have said, is to act in haste as an authoritarian, and given the consequences, such actions in most cases prove wrong (q.v. the US Patriot Act, most knee jerk invasions and bombing etc.).

The other is the fluidity of the UK’s constitutional arrangements in the absense of a codified constitution means that any current arrangements can be revised. A Scottish or Northern Ireland veto is just an act of self-defence and completely acceptable. It is not impossible unless you’re saying that the UK’s fluid constitutional arrangements are now codified in this respect. The UK “constitutional arrangements” is a living process and needs to evolve to address what is surely an existential event for the UK.

Article 50 is European law and reflects and protects the interests of the EU. By leaving, the UK is repudiating the EU; the Leave decision says to the other EU member states that the UK doesn’t want their citizens to live in the UK, that the UK doesn’t want to participate in EU institutions and so on. So what is there to negotiate?

The types of constitutional arrangements envisioned by the framers of Article 50 (and it would be interesting to know what the framers were thinking when they used those words) build on assumptions about formal written constitutions and associated procedure, and not the UK’s situation (this has parallels in other areas where UK/EU legal logic clash). I would be surprised if the EU would even consider a unilateral statement from May as even legal — under that reading, any PM could wake up one day and perversely decide to trigger Article 50; the referendum hasn’t given May any authority she didn’t already have. All it gave her was an excuse, not a rationale.

As for what would constitute an “agreement” within the meaning of Article 50, it seems hubris is driving the view that the UK can actually bargain something; I doubt the UK has a bargaining position at all. The sitution is more comparable, from the EU’s position, of telling someone to “put their affairs in order” before going to jail (or passing).
2

paulobrennan on September 1, 2016 at 10:27 am
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Surely (pace the constitutional implications of the Good Friday agreement, of which I know little), the position is that the decision to leave the EU has already been taken in accordance with the requirements of the UK’s constitution (such as it is). If that is so, then, far from requiring Parliamentary approval, the Government is bound by the UK’s obligations under the Treaty of Lisbon to serve the Article 50 notice. The fact that Parliament is not bound by the result of a referendum does not mean that a referendum, which was put to the people on the express basis that its result would be implemented, is merely advisory. Famously, Parliament cannot bind itself, but that does not mean that its laws are merely advisory.
3

whitenightf3 on September 1, 2016 at 1:13 pm
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All that is need here is to prove that Edward Heath knowingly committed high treason when he took us into the EU under the pretence of trade. Our Constitution is absolutely clear on this issue:

No foreign prince, person, prelate state or potentate hath or ought to have any
jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual,
within this realm.

Sovereignty cannot be given away by anyone, we are merely all the guardians of it.
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  grahamwood32 on September 1, 2016 at 6:33 pm
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  Excellent quotation and reply. Really that says it all – namely our Bill of Rights is still extant law, and of course the UK was taken into the then EEC under false pretences by Edward Heath (he subsequently admitted that the process of entry involved deceit in a BBC recorded interview)
  There is a huge amount of discussion and belief that Article 50 of the Lisbon Treaty is “the only legal route” for Brexit.
  When will the Constitution Unit and countless other commentators in the MSM and beyond grasp the fact that in voting to leave the EU the British electorate also rejected the assumed “authority” of all the EU Treaties from Rome to Maastricht to Lisbon.
  These are now academic and irrelevant like hundreds of treaties which simply fall into disuse and obsolescence for a variety of reasons. Post referendum, there is simply no way in which the EU could impose treaty obligations on the UK via the ECJ.
  The other perfectly legal route for the UK to take is to invoke the Vienna Convention on treaties and in particular Clauses 49 and 62. The first has reference to fraud by a party to a treaty (in this case our original access and Heath’s part in this).
  Article 62 has reference to substantial or material change of circumstances as a ground for terminating or withdrawing from a treaty, and there is little doubt that this route could and should be considered by the new UK government. The referendum result itself constitutes such a change of circumstances, but there are many others.
  Time therefore to drop all futile pleas to invoke Article 50 and face the new political and constitutional reality. We have every right to simply walk away from the EU and all its spurious claims, now that the sovereignty of the people has been expressed in the referendum.
5

Spiro Ozer on September 1, 2016 at 3:34 pm
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“Given that one normative argument advanced by the Leave campaign was a reassertion of the role of Parliament … ”

Was it? The word ‘parliament’ appears nowhere in the 16-page leaflet “Vote Leave, take back control” issued by the Leave campaign on 17 May.

I’ll grant you that the undemocratic nature of EU law-making *was* a Leave issue, but that’s not the same as support for the absolute right of Westminster MPs to override or ignore a popular vote. I would maintain that such an expression of parliamentary will would in fact be very easy to dismiss.

But actually, the crucial argument in favour of the proposition that the referendum outcome must be implemented, without further shilly-shally about a second referendum or parliamentary approval, is this: If it isn’t implemented, then there wasn’t any point in holding a referendum at all. And since the UK electorate has clearly shown its agreement with the holding of a referendum – once at the preceding general election, and once at the referendum itself – they clearly thought there *was* a point to it.
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  Tom Murphy on September 2, 2016 at 1:20 pm
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  “And since the UK electorate has clearly shown its agreement with the holding of a referendum – once at the preceding general election, and once at the referendum itself – they clearly thought there *was* a point to it.”
  
  Not necessarily. The promise to hold a referendum on EU membership was just one policy set out in the Conservative Party’s manifesto for the 2015 General Election. Can we assume that every person who voted Conservative agreed with every policy in that manifesto? I do not believe that we can. It may be that some voters took the view that a referendum was a bad idea, but they voted for Conservative candidates because they agreed with the party’s other policies and thought them more important.
  
  Furthermore, Conservative Party candidates got a total of 36.9% of the votes cast. Therefore, even if every person who voted Conservative thought that there should be a referendum, that is a minority view. Of course, some people who voted for other parties may have supported the idea of a referendum, but as it was not the policy of the other parties it remains an unknown factor that cannot be used to support an argument that the UK electorate agreed with holding a referendum.
  
  Not everyone who voted in the referendum necessarily agreed with it. I certainly did not. I voted, because I felt that it was important to do so, but I have always taken the view that the referendum should never have been held. The issues are so complex and the consequences so far reaching that it is parliament’s responsibility to address them, not the electorate’s. I believe that by passing the European Union Referendum Act 2015, parliament failed in its responsibility.
  
  The UK electorate has not “clearly shown its agreement with the holding of a referendum”.
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Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on January 25, 2017 at 9:16 am
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