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.
On 5th 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 23rd June. There are at least two issues which may crystallise: referendum questions, and, secondly, the role of Parliament in the Art 50 process.
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 23rd 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 23rd 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.
Irrespective of the outcome of the parliamentary debate on 5th 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 19th July, the court made a timetable order. That envisages that the Government must file its detailed defence by 2nd 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)).