How Would a Hung Parliament Play Out? Back to the 1970’s…

It appears to be more than a wobble. Discussion of a traditional mid-election blip in polls for the Conservatives has developed into predictions (notably by YouGov) of a hung parliament with the Conservatives as the largest party. However, other polls still indicate that a Conservative majority remains the most likely result next week. Nevertheless, it is worth discussing what could happen in a hung parliament. In a hung parliament, the rules on government formation are well established. The Prime Minister is only expected to resign when it is clear that an alternative government has emerged. However, the parties would be expected to conduct negotiations to see what shape an alternative may take.  In 2010, the fact that only an agreement between the Liberal Democrats and Conservatives could deliver a majority meant that was always going to be the most likely result.

YouGov has suggested that the result would be –

Conservative 310
Labour 257
SNP 50
Northern Irish Parties 18
Liberal Democrat 10
Plaid Cymru 3
Green 1
Other 1
UKIP 0

 

If a hung parliament does occur, no one is predicting that Labour would be the largest party, making these numbers a good scenario to work through. Although 326 is seen to be the magic number as that guarantees an overall majority, a government can survive if they just fall short of this. Ordinarily, the Speaker and his two deputies do not vote, and Sinn Féin do not take up their seats in Westminster. Assuming Sinn Féin returns four MPs (as they did in 2015), this makes the target 322. With this as the target, there are two main possibilities.

Conservative & Northern Irish Unionist MPs

The Conservatives could govern as a minority government with the support of the Unionist MPs from Northern Ireland in a confidence and supply agreement. In 2015, the Democratic Unionist Party and the Ulster Unionist Party each won eight and two seats respectively. These estimates would mean that the Conservatives are just short of the revised target of 322 by two votes. In such circumstances, the Unionists would be expected to support the Conservatives, and the Ulster Unionists propped up the fag end of Major’s government as it stuttered towards the 1997 election. The sticking point would be the border between Northern Ireland and the Republic, as both Unionist parties would seek assurances that the open border is retained and that Brexit would not otherwise compromise the Peace Process. Furthermore, given Jeremy Corbyn’s “past” as regards the IRA, it would be inconceivable for the Unionist parties to form an agreement with Labour. The benefit of this arrangement is that it would have relatively few moving parts.

Progressive Alliance and EVEL

“A Progressive Alliance”, would see Labour and the SNP as the main players. These two parties working together would still not be enough for an overall majority. Any agreement would be likely to require a commitment from Jeremy Corbyn for a date for the second Scottish Independence Referendum (“IndyRef 2”). Corbyn has hinted that he would be willing to make such a concession. Other possible parties, include the support of the Liberal Democrats, whose primary demand would presumably be a referendum on the Brexit deal, and any Green and Plaid Cymru MPs. The difficulty would be the constant negotiation required to keep all parties satisfied. A serious constitutional difficulty is English Votes for English Laws (“EVEL”). EVEL is the procedure in the House of Commons by which a law that affects only England needs the approval of a majority of English MPs. The problem for the “Progressive Alliance” is that it would only have a minority of English MPs as a majority will be Conservative. This was the case in the last two elections (in 2010 the Conservatives majority in England was 63, in 2015 it was 105) and are clearly on course to do similar at this election. Given that Labour’s flagship issues such as the abolition of tuition fees are English only issues, this “Progressive Alliance” will lack the English majority it requires to get these proposals through the House of Commons using the EVEL procedure.

Another consideration against a progressive alliance are the positions of some Labour MPs. John Woodcock has gone on record as saying that despite standing as a candidate for Labour, he would not support any motion that would make Jeremy Corbyn Prime Minister. Other Labour MPs are likely to find themselves in a similar position and have a serious and difficult decision to make. These MPs could be critical if the parliamentary arithmetic is as tight as YouGov suggest.

Back to the 1970’s?

The closest parallel to all of this is 1974 when Edward Heath called an election asking the question, ‘Who Governs’? This led to Heath losing his majority, and then losing office after failing to reach an agreement with the Liberals led by Jeremy Thorpe. Harold Wilson led a minority government for Labour, calling a further election after in October. This resulted in Wilson gaining a majority of 3, with Labour managing to remain in government four and half years with support from the support of the Liberal Party (the Lib/Lab pact), the Ulster Unionists, and the Scottish Nationalist Party and Plaid Cymru. This government fell after the nationalists withdrew their support, and the government lost a vote of no confidence in 1979.

The great irony was the concern that Jeremy Corbyn was taking the country back to the 1970’s. If a hung parliament is the result next week, the person taking the country back to the 1970’s is not Jeremy Corbyn, it is Theresa May.

IndyRef 2: Adding a New Dimension to Brexit

Today, Nicola Sturgeon made her announcement that not only does she seek a second independence referendum, but that she intends to hold it at some point between late 2018 or early 2019. The Scottish Government will seek the approval of the Scottish Parliament as soon as next week, and then seek approval from Westminster to hold the referendum, known as a Section 30 Order. This process is similar to the process undertaken for the first independence referendum held in 2014.

Following Brexit, this has been inevitable since it was clear that the SNP’s demands for a “differentiated” exit from the EU (with Scotland retaining access to the internal market) are not going to met. Indeed, such orders were unlikely ever to be delivered as the EU chiefly operates through its Member States rather than internal nations, regions, or any other subdivision. Brexit is the “material change” in circumstances that the SNP requires for a second referendum. What makes Sturgeon’s speech a surprise is that the SNP also stated that there needed to be “clear and sustained evidence” of support for independence before a second referendum. The lack of this evidence suggested that despite Brexit, IndyRef 2 was more of a medium-term probability than a short-term certainty.

Sturgeon’s speech has attempted to convert IndyRef 2 into a short-term certainty. This move is to take advantage of present conditions, of being in a strong position at Holyrood (albeit just short of a majority), a Conservative Government at Westminster and most of all, Brexit. The first of those conditions, the SNP’s position at Holyrood, is doubtful in the long-term. As the saying goes “to govern is to choose”, and the strain of being in office since 2007 means that the SNP’s popularity may have peaked. When reaching the summit, the only direction is down, even if it is a slow descent. The electoral system for the Scottish Parliament makes it difficult for the SNP to retain its hegemony in perpetuity. Only a small reduction in SNP support will close the window of opportunity for a second referendum. Sturgeon has decided to take the opportunity now to maximise the advantages for the independence cause of Brexit and the Conservative Government at Westminster.

The intention is to hold the referendum as early as autumn 2018, in the belief that the shape of UK’s exit from the EU will have emerged by that point. This is also the UK Government’s belief, but this is at best uncertain. Agreements in principle can be reached during the negotiations, but there is no deal until the whole deal is approved. It is entirely possible that negotiations degenerate into last minute compromises (on both sides). It would not be the first (or last!) EU negotiation to do so.

Entangling Scottish independence with Brexit in this way is unwise. Under Article 50, the UK will leave the EU two years after the UK has notified the EU of its intention to do so, which will be March 2019. Should Scotland vote for independence, they will not have left the UK by the time the UK has left the EU. For the first independence referendum, the SNP indicated that negotiations for Scotland to leave the UK would take at least eighteen months. Applying that to IndyRef 2 means that Scotland would leave the UK in 2020. Only then could Scotland begin the process of joining the EU. There is no guarantee that Accession to the EU will take place at all or be on terms acceptable to Scotland. Just like in 2014, the biggest issue is likely to be the currency, and potential adoption of the Euro, and not every EU country will automatically welcome Scotland with open arms (i.e. Spain, concerned about encouraging the Catalonian independence movement). The worst scenario of all would be for Scotland to be outside both the UK and EU. Essentially, Sturgeon has made a choice to leave one union to which 63% of Scotland’s exports go, to seek potential membership of another union that receives 16% of its exports. While the economic arguments for Brexit were more balanced (44% of the UK’s exports go to the EU), this cannot be the case with IndyRef 2.

It’s not clear that Sturgeon will get her way. The breakdown in relations between the Scottish and UK Governments is shown by the unilateral manner of Sturgeon’s actions. There has been no repeat of the Edinburgh Agreement with the two governments agreeing on the basis for the first referendum. By contrast, conflict is now hard-wired into the development of this referendum. Blame for this does not rest exclusively at Bute House, but is shared with the UK Government. A “hard” Brexit will intensify the impact of leaving the EU, intensifying Scottish (and for that matter Northern Irish) dissatisfaction with leaving the EU against their will. Accompanying the intention of a “hard” Brexit should have been a clear commitment to devolving to Holyrood many of the powers returned from the EU. The UK Government’s White Paper on Brexit was, at best, vague on this point. This touches a more fundamental problem. There appears to be a lack of a coherent plan within government linking the emerging federalisation of the UK and devolution to English cities to Brexit.

The critical area for conflict will be the timing for IndyRef 2. Sturgeon indicated that the timing of IndyRef 2 is a matter for Scottish Parliament. This was not the case for the 2014 Referendum. The Section 30 order, (passed by Westminster granting the Scottish Parliament the power to legislate for the referendum) made clear that the referendum had to be held by the end of 2014. The UK Government may view the timetable announced by Sturgeon as unsustainable, and will not want to open a second front with the conclusion of the EU negotiations still pending. A more likely date is later in 2019 or 2020 once the UK has left the EU, with any transitional arrangement in place.

Already Sturgeon’s intervention has had an effect; Article 50 will now be towards the end of the month rather than this week. Compared to the Miller case, this is far greater challenge to Theresa May’s plans for Brexit. It has forced Scottish concerns to become a key part of the UK’s thinking on Brexit, adding an extra dimension to the Brexit negotiations, which were already described as a game of three-dimensional chess. How many more dimensions will be added before March 2019?

Miller: How the Article 50 Bill will play out in Parliament

NOTE: This post is an update of an earlier post, taking account of Tuesday’s Supreme Court decision.

Today (Tuesday) the Supreme Court delivered its judgment in Miller & Dos Santos v Secretary of State for Exiting the European Union. Its main finding is clear, holding by a majority of 8 to 3 that an Act of Parliament is required in order for the Government to invoke Art 50. The Government has announced that the necessary Bill will be introduced into Parliament (called in this post the ‘Article 50 Bill’) within days (some political correspondents are suggesting Thursday). Apparently, the Government has cleared the next week’s legislative business allowing time for the Article 50 Bill to be debated in the House of Commons. This post looks at the issues surrounding Parliament passing the Article 50 Bill, the issue how Parliament may amend the Art 50 Bill will be discussed in a later post.

 

THE HOUSE OF COMMONS

The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit. Certainly, in the House of Commons, those parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process, with opposition to Brexit dissolving since the referendum in June. While the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a non-binding motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved Brexit in principle. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against the Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that the Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, making passing any legislation a more difficult task. For example, the Government suffers defeats on amendments relatively frequently (for example on fifteen occasions since May 2016).

One protection is that, on the face of it, the Article 50 Bill will be covered by the Salisbury Convention. Under this constitutional convention, any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate. As the Conservative manifesto clearly indicated that a Conservative Government would respect and implement the result of the referendum, in this sense the Article 50 Bill is covered.

Alternatively, it could be open to peers to take the view that the Salisbury Convention is not engaged. This would mean that they would be constitutionally entitled to block the Article 50 Bill. This is because the Government’s intention is to take the UK out of the single market. Yet Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. On the basis that a notification under Article 50 is irrevocable, peers could take the view that the Article 50 Bill will set in train a set of events with the only destination being that the UK leaves the Single Market. Either negotiations are concluded with the UK leaving the Single Market to enjoy some form of relationship with the Customs Union (as Theresa May indicated last week) or, no agreement is reached within the two-year period, meaning that the EU Treaties cease to apply to the UK (Article 50 (3)). In this instance, the UK would leave the Single Market and fall back on WTO rules. The Conservative manifesto covers neither of these possibilities.

Resolving this argument requires considering other, broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block the Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

It’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend the Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, risking the important role it currently plays in the legislative process as a ‘revising chamber’. Regardless, this would all be a pyrrhic victory as the Government could prevail through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with the Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.

Preview on Miller – An Article 50 Bill? – Parliamentary Fun & Games

This week, the Prime Minister, Theresa May, has unveiled her twelve-point plan for Brexit as March 31st, her self-imposed deadline for invoking Article 50, draws ever closer. Yet, constitutionally there may be two hurdles to clear before invoking Article 50. These hurdles are only “maybes” because it depends on the decision of the Supreme Court in Miller & Dos Santos v Secretary of State for Exiting the European Union. The Supreme Court has announced that judgment will be handed down on 24th January at 9:30 am.

This post considers the main point in the Miller case, that, for the Government to invoke Article 50, an Act of Parliament granting the Government the legal authority to do so is required. There are other points, including what has become known as the “devolution issue”, that consent of the devolved legislatures is required to invoke Article 50. Miller also has the potential to raise other profound points of constitutional law, but this depends on the approach that the Supreme Court decides to take.

THE HOUSE OF COMMONS

In my view, it is highly likely that the Supreme Court holds that an Act of Parliament is required for the government to invoke Article 50. The Government has already made clear that, if necessary, they will introduce a Bill into Parliament (called in this post the ‘Article 50 Bill’) soon after the Supreme Court’s decision. The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit.

Certainly, in the House of Commons, such parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process. When the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved the principle of Brexit. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against an Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that any Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, which makes passing any legislation more difficult with the Government suffering defeats on amendments relatively frequently (for example on fifteen occasions since May 2016)

Constitutionally, their Lordships may be emboldened by the knowledge that any Article 50 Bill will now lead to the UK leaving the Single Market. This is because there is now a stronger argument that an Article 50 Bill does not benefit from the Salisbury Convention. This is a constitutional convention which means that any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate.

The issue is that the Salisbury Convention may not apply to an Article 50 Bill because the Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, and respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. From this, it is far from clear that the Government has a manifesto commitment to take the UK out of the Single Market. This may be enough for some peers to feel that they are constitutionally entitled to block any Article 50 Bill.

To take such a view would be to the exclusion of other broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block an Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

oIt’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend an Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, placing at risk the important role that it plays in the legislative process as a ‘revising chamber’. This would all be a pyrrhic victory as the Government could prevail, in any event, through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with an Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.

Article 50: Was the Government Really Divorced From Reality? Analysing the High Court’s Decision in Miller

This post considers the implications of the High Court’s decision in Miller that Parliament needs to grant the government the authority to invoke Art 50. The first post below discusses the High Court judgment itself, and the prospects of the government’s appeal being successful before the Supreme Court. A second post will follow shortly, which considers the political implications, should the Supreme Court not overturn the High Court’s decision.

_________________________________

4355150_5a63142d“Flawed at this basic level” and “divorced from reality” are two of the most withering conclusions of the High Court in R (Miller) v Secretary of State for Exiting the European Union, on the government’s argument that Parliament’s authorisation is not required to invoke Article 50. There is no doubt that the decision is a spectacular defeat for the government’s legal team, headed by the Attorney General. However, the judgment has led to a hugely overblown reaction of sections of the media. This blog aims to show that the decision does not “block Brexit” in any way, but also that the judgment raises questions which can only be resolved by the Supreme Court.

What Was Decided?

The basic conclusion of the High Court is Parliament’s consent must be required to authorise invoking Art 50. This is because once invoked, Article 50 leads to a process that necessarily involves taking away rights which are part of UK law through to the European Communities Act 1972. This conclusion rests on a venerable constitutional principle, stemming from the Case of Proclamations in 1610, that the royal prerogative cannot be used to change any part of the common law or an Act of Parliament.

What should be clear from this, is that the High Court were deciding a legal question, namely what is the appropriate constitutional process by which the UK as a state invokes Article 50. It cannot be overemphasised enough that here is nothing in the judgment that “blocks Brexit”. The conclusion of the High Court is that Parliament needs to be involved in the process to invoke Article 50, most likely through passing legislation which authorises the government. As the royal prerogative is part of common law, it is for the courts to determine the legal relationship between the government and parliament and between common law and statute. Of course, this does raise the prospect that Parliament may not enact the necessary legislation. If that occurs it would not be The Lord Chief Justice, The Master of Rolls and Lord Justice Sales that have blocked Brexit, but those MPs or members of the House of Lords that voted against the legislation. The headlines in the Daily Mail, The Sun and The Telegraph, in particular, have been scurrilous, ridiculous and utterly ghastly.

Analysis of the Judgment

None of this is to say that the judgement is perfect. Far from it. The government has confirmed that it will appeal to the Supreme Court with the appeal expected to start on 7th December. A notable feature is that the appeal will be heard by an (as far as I know) unprecedented eleven-judge panel. The next question is how likely the government will succeed on appeal?

An initial reading of the High Court’s judgment raises some significant constitutional questions. Put simply; the High Court embarks on nothing short of a magical mystery tour of interpretation by concluding that Parliament intention when passing the European Communities Act 1972, was to pass that a “constitutional statute” of fundamental importance, some thirty years before this controversial idea emerged in Thorburn. Even if that is correct, the notion of a “constitutional statute” as traditionally understood, only protects it against implied repeal, meaning that the 1972 Act must be either repealed or amended expressly. This is nothing to do with using the prerogative to invoke Art 50.

Invoking Article 50 itself will not repeal or amend the 1972 Act (although further legislation will repeal the 1972 Act once negotiations have been concluded – as proposals for the Great Reform Bill show). The High Court then appears to extend this notion by finding that the royal prerogative cannot be used to remove the legal effect of a constitutional statute [para 88]. The idea of a constitutional statute is controversial amongst constitutional lawyers, and the High Court have extended the effect of constitutional statutes without any consideration of the debate of the underlying concept. Indeed, the Supreme Court declined the opportunity in the HS2 case to approve this idea expressly.

There is arguably one major flaw at the heart of the High Court’s reasoning. Connected to the finding that the 1972 Act is a constitutional statute is the conclusion that Parliament, in passing the 1972 Act is taken to have intended to limit the royal prerogative to conduct international affairs by requiring legislation to leave the EU. This can only be assumed because this intention cannot be found in any express language, nor can it be necessarily implied from reading the 1972 Act.

This assumption can be challenged. For example, John Finnis has made an analogy to double tax treaties, and how in 1972 Parliament was plainly aware that double tax treaties entered into by the government can have a great impact on UK law. It has long been understood that the government can (and on occasion has) unilaterally terminated a double tax treaty with another country without the requiring consent of Parliament. The parallel with Article 50 is clear, and there is little evidence that Parliament in 1972 intended to make any changes regarding the power of the royal prerogative.

Even if the High Court’s conclusion on this point is accepted, and Finnis’s point about double tax treaties is irrelevant, there remains a further difficulty about the assumption that Parliament is intended to have made. As stated above, this assumption is made despite a lack of express language or any necessary implication based on the language used in the 1972 Act to support such a conclusion. Yet, as Carl Gardner highlights in his excellent blog post, the High Court dismissed the government’s argument that the power to invoke Article 50 remained with the royal prerogative because there was no express language in the statute saying so. In short, the High Court concluded that Parliament can be assumed to limit prerogative powers, but cannot be assumed to have intended for the prerogative power to be retained.  Given that generally, the royal prerogative exists to the extent that it has been left untouched by Parliament or statute (and for this reason, is often referred to as that “residue of powers” still in the hands of the government), this seems at the very least logically unsound.

It’s intriguing that the High Court described the government’s argument on this point as being “flawed at this basic level” when surely the paradox just described above required far more discussion than can be found in the judgment. The Policy Exchange’s Judicial Power Project, have published further penetrating criticisms of the High Court’s decision with a series of posts available here.

A great irony is that while the judgment has been proclaimed as a great success for the power of Parliament and parliamentary sovereignty, the judiciary appear to be developing deeper principles of parliamentary intention. In this instance, the principles applied have sought to curtail the royal prerogative. However, last year in R (Evans) v Attorney General, the Supreme Court applied many of these principles with the effect of depriving sections of the Freedom of Information Act 2000 of almost all practical effect, despite the clear wording used by Parliament.

Another great irony is that the High Court relied on Dicey’s notions of parliamentary sovereignty when Dicey was one of the first influential figures to advocate using the referendums to resolve fundamental constitutional reasons within our parliamentary democracy. The High Court contains scant  discussion of the constitutional implications of the referendum itself. While the court is there to resolve the legal arguments, the British constitution remains a peculiar mixture of law and politics, and the solution of legal issues must include an account of their political context. Lord Bingham’s judgment in R (Attorney General) v Jackson is fine example of this, as he explained in detail the political context underlying the Parliament Act 1911. Finally, the judgment also made only a very brief attempt to reconcile their decision with the conclusion of the Northern Irish High Court in which stated that the royal prerogative could be used to invoke Art 50.

Will the European Court of Justice Get Involved?

When the case reaches the Supreme Court, an issue which could be reopened is whether a notification of an intention to withdraw from the EU under Article 50 can be revoked. The case in the High Court preceded on the basis that any notification could not be revoked. Yet, as Article 50 is silent on this point, this is at least arguable, and some opinion suggests that a notification under Article 50 is revocable.

If this is the case, then as the Lord Chief Justice stated during the hearing, it would “blow the claimants’ case out of the water”. As Article 50 itself is silent on this point, this is a matter of EU law which means that a conclusive answer can only be sought from the Court of Justice of the EU (commonly called the ECJ). There is an expedited procedure whereby the ECJ can hear a case in around three months. Of course, should a reference to the ECJ be made, the great irony would be that it is the EU’s court which would be effectively deciding how the UK will leave the EU.

Overall, this discussion shows that there are several hooks on which the government can base their appeal, and some of those give the government an opportunity to challenge the fundamentals of the High Court’s reasoning. The government may benefit from all eleven Supreme Court judges hearing the case, as it is possible that the more radical voices of Lord Neuberger and Lady Hale (as shown by judgments such as Evans) may be drowned out by more conservative voices such as Lord Sumption. Whether the government succeeds is uncertain, but a unanimous decision amongst all eleven is extremely unlikely.

Rather Than Labour Deselecting MPs, will Labour MPs Deselect Labour?

 

fullsizeoutput_a1c
Photo courtesy of @PlatformTen

Earlier this week, I appeared on Nick Ferrari’s LBC Radio show to discuss the constitutional issues that surround the current state of the Labour Party and particularly what should happen if the Labour leadership pursued the “deselection” of all MPs. Deselection is when all current MPs would have to go through a selection procedure to remain the candidate for their constituency at the next general election which is due in 2020. Deselection clearly implies that some MPs (often described as the “moderates”) at odds with the leadership would not be selected to stand in 2020. Constitutionally, this is largely an internal issue for the Labour Party, if the electorate doesn’t like the candidates chosen by Labour they can vote for another party. I floated the possibility that MPs faced with the threat of deselection may choose to leave Labour, jumping ship before being pushed and finding another political party. The audio of the segment is below…

 

 

The whole question raises some more immediate issues that could lead to a breakaway party from Labour. If Corbyn implements a full “deselection” process, then given the radical change in the membership of the Labour Party since Corbyn’s election, many moderate MPs may have little chance of being chosen to stand in 2020. This is increasingly likely as 2020 approaches as new members continue to join, and moderate members opt to leave. Any MP likely to lose their seat, already at odds with the current leadership, will have little incentive to heed Corbyn’s calls for party unity.

It’s arguable that instead of unity, the reverse could be more likely and deselection could cause the Labour Party to split. Logically, moderate MPs denied the chance of retaining their seat in 2020, should have no interest in continuing to prop up (however lukewarmly) a leader with which they so fundamentally disagree. It would be in their interest to create a new party and provide themselves with the opportunity to stand in 2020. If moderate MPs realise that they cannot stand as a Labour candidate in 2020, then there is little to lose by leaving and forming a new party.

The gains are all the greater when you consider that the circumstances are as conducive to creating a new party as they are ever likely to be. Labour continue to perform ever more poorly in the polls, but also Corbyn is an unusual party leader in British politics because there is such a disconnect between himself and his parliamentary party. As discussed in the past few months, this could be exploited by a new group of moderate Labour MPs (the core being the deselected MPs), that could attract sufficient support to be designated as the official opposition by the Speaker, with the leader becoming the Leader of the Opposition. This would deny Corbyn would the oxygen of publicity that he currently enjoys, as the new moderate grouping would be part of the warp and weave of daily politics (i.e. membership of parliamentary committees, frequent media appearances on the usual outlets). All of this is a massive difference to the “gang of four” who left Labour to create the SDP in 1981, which despite including senior MPs and ex-cabinet ministers such as Roy Jenkins, never quite had this status.

From this platform, a new party would have a reasonable chance at the next General Election of winning seats. There would be opportunities to work with other parties such as the Liberal Democrats, possibly including an electoral pact for their mutual benefit. Of course, all of this is risky, but if deselection means that existing Labour MPs cannot stand in 2020, having a chance of contesting and winning a seat is better than none at all. I may be underplaying the emotional attachment that MPs have to their Party, but if they have such a detachment from the membership and the leadership those emotional ties must inevitably be weakened. Fundamentally, deselection will require affected MPs to resolve a clash between their principled commitment to left-of-centre politics and their (often lifetime) membership of the Labour Party.

Corbyn will need to think extremely carefully about deselection because if he proceeds, he may discover that many MPs will ‘deselect’ them and the Labour Party is reduced to a mere protest group with a rump of MPs.

LBC Radio: Labour Party – Deselection of MPs: The Potential Consequences

Craig was live on LBC Radio with Nick Ferrari on 26th September, discussing the current situation within the Labour Party and what may happen if the Labour Party decide to deselect all their MPs. The audio is below.

PMQs: The Challenge for Corbyn

Tomorrow (Wednesday) at 12noon sees the return of a fixture that some hate to miss. It’s Prime Minister’s Question Time (PMQs). While to some this may appear to be people just shouting at each other, PMQs serves a useful purpose. It is one of the ways in which the Prime Minister and the government are accountable to the House of Commons. For this to happen, the Leader of the Opposition must be capable of effectively challenging the Prime Minister. Unfortunately, Jeremy Corbyn’s performances so far indicate that he appears incapable of performing this task. Failure to place the Prime Minister on the spot means that the government is under less scrutiny, and accountability and Parliament suffers. If the Opposition, in general, does not fulfil their role to scrutinise the government, then the government is likely to make mistakes. With Brexit, this becomes even more important.

There is no way to wrap this up; Corbyn’s performances at PMQs have been shockingly bad. David Cameron visibly found PMQs a far more comfortable experience when facing Corbyn compared to Ed Milliband, often not even needing to refer to his briefing notes. Corbyn’s questions are often little more than a ramble (Isabel Hardman at The Spectator picked up on this here), and his frequent failure to follow up on the Prime Minister’s answer makes PMQs considerably easier for them. Corbyn’s approach of asking questions sent to him can neutralise PMQs to some extent, but he needs to follow up on the answers.

Using PMQs to their full extent requires research, time and preparation. The indications from the VICE documentary on Corbyn are that his preparations are far from extensive, and it shows. Perhaps Corbyn has chosen not to take PMQs seriously, viewing it merely being pointless theatrics. But this highlights Corbyn’s fundamental constitutional misunderstanding. Despite all the rallies held up and down the country and for all the train floors he sits on, Corbyn needs to show that he is the leader of a viable alternative government. One key element of this is to perform well in the Commons, especially at PMQs, which is Corbyn’s weekly opportunity to set the terms of the debate rather than just responding to what the government has decided. Corbyn’s performances in Parliament (as well as his general performance as leader) have led to what support he had amongst the parliamentary party diminishing and ultimately to the current leadership election. Had Corbyn been consistently performing better at PMQs, more Labour MPs would have given him more of chance. Both Blair and Cameron were excellent performers at PMQs, and they both won elections. A series of poor performances leads MPs to question whether their leader is up to the job. Although she performed strongly at her first PMQs in July, there is a warning to Theresa May here as well.

Although little may change directly as a result of PMQs, in the background, PMQs matters to both party leaders. It remains their most visible shop window to the voters week in, week out. With Theresa May now answering the questions, there is a chance for Corbyn to reset how he approaches PMQs. Although in July, there was every indication that May intends to take advantage of every possible weakness Corbyn has, piling the pressure on Corbyn. Even if Corbyn does win the leadership election, he needs to take PMQs seriously as he cannot function as Leader of the Opposition without the support of his MPs in Parliament. In short, Corbyn needs to give them something to support. Otherwise, Labour’s leadership question will still lack a conclusive answer.

UPDATE
It was arguably one of Corbyn’s best PMQs (although that may not be saying too much). But he did focus on one issue, which is more powerful. Housing is a significant concern and plays well with his supporters. His questions need to be more precise, and Theresa May could handle them with ease. 

The problem is whether this was the right issue to go on as such little progress over Brexit has been made. Here it was left to the leader of the SNP, Angus Robertson to challenge May over the key issue of the day, directly asking whether May wants to retain access to the Single Market. This is a consistent theme of PMQs as Robertson routinely is more challenging with his two questions than Corbyn ever is with his six.

A ‘Snap’ General Election? It’s Far From a Certainty

For the UK Constitutional Law Association – I’ve written a post about how a ‘snap’ or early general election is unlikely. As Theresa May becomes the Prime Minister, some have argued that she should ‘call’ an early general election. Those who are making these claims are being disingenuous as it is not entirely up to the Prime Minister when a general election is held, as Fixed-term Parliaments Act 2011 makes holding a early general election difficult but not totally impossible. Those who are arguing for a early general election need to explain how these difficulties can be overcome.

You can read the full article here.

 

When Will Theresa May Become Prime Minister?

Update: This blog was written before Cameron has announced that he will hand over to May on Wednesday after Prime Minister’s Question Time. Theresa May will become the Prime Minister by Wednesday evening. 

Well this has happened fast…

With Andrea Leadsom’s withdrawal from the Conservative Party leadership contest, Theresa May will be the next Prime Minister.

But not so fast? There are two potential hurdles to clear as some have raised the possibility that either (1) there still needs to be a choice of two candidates given to Conservative Party members, with someone (such as Gove) replacing Leadsom or (2) there would still need to be a ballot of members to approve the choice of May as the Conservative Party leader. Both of these arguments can be dismissed, but this requires a reasonably close reading of the Conservative Party rules.

(1) Another Candidate to Replace Leadsom?

The argument that there needs to be another candidate is based on the following rule:

“Upon the initiation of an election for the Leader, it shall be the duty of the 1922 Committee to present to the Party, as soon as reasonably practicable, a choice of candidates for election as Leader”. (Sch 2, Rule 3)

The argument advanced here by Jo Maugham QC (amongst others), is that the 1922 Committee remain under a duty to present another candidate to the party members. I disagree; the role of the 1922 Committee in leadership contests as required by the rules is to hold the series of ballots of Conservative MPs required to whittle down the leadership candidates down to two. This 1922 have done this. The fact that Leadsom has since withdrawn does not mean that the 1922 Committee have not fulfilled their duty. Furthermore, the rules provide for when one of the two candidates advanced by the 1922 Committee then go on to withdraw. This leads us on to the second point.

(2) A Ballot to Approve May?

There is the possibility that there could be a ballot to approve May as the party leader (and so the new Prime Minister). Key here is Rule 35 which states as follows:

“Neither of the two candidates to go forward to the general membership may withdraw without the agreement of both the Chairman of the 1922 Committee and the Board of the Party. The candidate remaining would be subject to ratification under Schedule 2, rule 7. In the event of the death of either candidate the ballot of the Parliamentary Party will be reopened and re-run”.

So clearly Leadsom will (if not already) have the approval of both the Chairman of the 1922 Committee and the Conservative Party Board to withdraw from the leadership election. This then triggers Schedule 2, Rule 7. This states as follows:

“In the event of there being only one valid nomination at the close of nominations prior to the first ballot being held by the Parliamentary Party for the election of the new Leader, the election of the nominee may if so ordered by the Board be ratified by a ballot of the Party Members and Scottish Party Members to be held within one month of the close of nomination”.

There are two possibilities here. Firstly, that Rule 35 requires a vote of party members as May is the ‘candidate remaining’ is ‘subject to ratification under Sch 2, Rule 7’ and that the phrasing of Rule 35 requires a ballot of Party Members, as that is what the phrase ‘subject to ratification’ requires. Whilst it is a possible reading, it is not the most natural reading of how Rule 35 and Sch 2, Rule 7 works.

In my view, the better approach is to read Leadsom’s withdrawal under Rule 35 as triggering Sch 2, Rule 7 as a whole, giving the Board the discretion as to whether a ballot of members is needed to ratify. Essentially placing the leadership contest in the situation as if there had only one candidate for the leader in the first place. This then leads it open to the Conservative Party Board to declare May as the winner of the leadership contest without a ballot of the members, as the rule clearly gives this discretion to the Conservative Party Board. Not only is this the best reading of the rules, but it partially follows the precedent of how Michael Howard became party leader in 2003, and reflects the current politics of the situation of a basic need for a new Prime Minister as soon as possible.

(3) When Will May Become PM?

Until this morning the intention was that the new Prime Minister would be appointed on 9th September. This will now be sped up. It has to be remembered that the only person who can appoint the new Prime Minister is the Queen. This could happen quickly, and is possible for it to happen today. After a general election, the outgoing Prime Minister and the new Prime Minster resign and are appointed in around an hour, with both having audiences with the Queen in Buckingham Palace.

Whilst there is a need for May to appointed quickly, it is unlikely to happen that fast. A few days are unlikely to make a huge amount of difference, and a slight pause is probably welcome. Prosaically, the Cameron’s will have to move out of No 10 (possibly initially to Chequers), May will want some time to finalise her Cabinet (no doubt she will have thought about this already, but she will be appointing a cabinet two months earlier than she thought). Also practically, the Queen is currently in Norfolk. Whilst Cameron and May could travel to see the Queen wherever she is, presentation is important here. It’s likely that both would prefer the backdrop of Buckingham Palace and the choreography of leaving and entering Downing Street to give the impression of an orderly transition of power. My bet is that Cameron will resign after Prime Minister’s Question Time on Wednesday, with Theresa May being appointed shortly afterwards.