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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Soothsayer: “Beware the Ides of March”. (William Shakespeare, Julius Caesar Act 1, Scene 2)

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Edited by John Gynn, Wednesday, 15 Mar 2017, 13:56

The EU (Notification of Withdrawal) Bill has now completed its journey through the Houses of Parliament. Royal Assent is scheduled for tomorrow – 16th March.

Today - the 15th March – is the Ides of March – Julius Caesar was assassinated on the Ides of March.

The private secretary to the Emperor Hadrian, the scholar Suetonius, described the infamous events on the Ides of March as, “a test of civilisation”.

Fortunately, by the time the EU Notification of Withdrawal Bill receives the Royal Assent tomorrow, the Ides of March will have come and gone.

Marc Antony in Julius Caesar Act 3 Scene 2


Marc Antony: “I come to bury Caesar, not to praise him” (William Shakespeare, Julius Caesar Act 3, Scene 2)

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Great prophets of doom?

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Substitute ‘Guy Verhofstadt’ for ‘Italy’ and ‘the Prime Minister’ for ‘England’ in an extract from a recent, keenly-observed and well-researched, post-match report of the (infamous?) England v Italy rugby match - which saw Italy adopt an unanticipated and unsettling strategy - and you can almost discern the same jaw-dropping tactical shock in the EU MEP’s ‘left-field’ approach - proposing continued EU citizenship for UK nationals; almost offering a post-Brexit bridge across the Channel - as that which temporarily baffled England at Twickenham in their 2017 six-nations rugby contest against Italy at the end of February.

First here is Guy Verhofstadt’s unexpectedly conciliatory note today, from BBC online news pages reporting the Belgian politician’s remarks:

“Mr Verhofstadt, who leads the liberal group of MEPs in the European Parliament, told the BBC that the [EU citizenship] matter had to be prioritised and "cannot be part of the political games" that have taken place over the last few months… Mr Verhofstadt said the situation "is a crisis for the EU". "The fact that a large country like Britain is leaving the EU...? It's shown a crisis in the European Union - it's a disaster. That Britain goes out of the EU is a tragedy, a disaster, a catastrophe - you name it."”

Now the substituted match report: “[Verhofstadt] did much more than compete... [he] tried something different… there was no humiliation at the hands of [the Prime Minister] and there was nothing that [Verhofstadt] did that demeaned… in the slightest, no matter what anybody else might think. [Verhofstadt] held up a mirror to the modern-day game, the endless torrent of breakdowns, and… showed where it needs to improve… Above all, [Verhofstadt] showed that glorious uncertainty is such a joy in this mechanical era. Now that is not a bad afternoon's work.”

Associated Press noted that Italy’s rugby tactics had ‘angered’ England: “It was smart and innovative from Italy coach Conor O'Shea - and it bewildered England so much that some of its players asked the referee how they could combat it.”

Mr Verhofstadt’s conciliatory tone, that so seemed to baffle the prepared intransigence of the UK Government, was echoed by another EU notable, European Commission President Jean-Claude Juncker, who has said today that he hopes that the UK will rejoin the European Union at some point in future.

Has the EU taken a leaf out of Conor O'Shea ‘book of tricks’?

Perhaps, but perhaps not. Perhaps it might be possible to look at the Italian’s rugby tactics not so much as a ‘trick’ but as an innovative approach. That is what Stephen Jones thought and I think he might well be right. Might these EU note worthies actually be genuine in their efforts to reconcile and compromise?

Not likely; according to Stephanie Flanders (J.P Morgan’s chief market strategist for Britain and Europe) speaking on BBC Radio 4’s Any Questions tonight. The former BBC economics editor is certain that there can be no likelihood that the EU will give something away for nothing.

And the game the EU is playing is just not rugby for Boris Johnson (again seeming to be Sir William Stanley reincarnate) who seems set against compromise and ever-determined to be on the ‘winning’ side: “I think we have illustrious precedent in this matter, and you will doubtless recall the 1984 Fontainebleau Summit in which Mrs Thatcher said she wanted her money back, and I think that is exactly what we will get," he [Sir William – sorry Boris] told BBC political editor Laura Kuenssberg in BBC Two's Brexit: Britain's Biggest Deal.”

It is interesting, therefore, to find an excellent Welsh source of Rugby comment use the same words as Guy Verhofstadt - ‘catastrophe’ and ‘disaster’ – in the context of England’s unexpected departure from the Rugby World Cup in October 2015 and consider... was that 2015 rugby exit a precursor of Brexit?

“When the word "catastrophe" starts being applied to the result of a game of rugby union a sense of proportion is clearly required. Yes, England are out of the World Cup but life goes on, clocks cannot be rewound and the competition proceeds without them. English rugby may be looking into a yawning sink hole of self-inflicted horror but this is still sport, not war, famine or death… As the former All Blacks forward Craig Newby tweeted in the early hours, England advanced further when they were jumping into harbours and drinking like fish… England's exit from the Rugby World Cup is a disaster for business - and could see a £3.5billion loss to the country's economy, experts have warned.”

If the UK can show the same subsequent form post-Brexit as the English rugby team - currently looking to equal New Zealand's All Black’s world record of 18 straight Test victories, then all will surely be well for the UK.

Yet can anybody emerge from a process of attrition a winner?

Look at what happened to Sir William Stanley.

To quote (albeit shamefully out of context) the unsurpassable and inestimable Scots rugby commentator Bill McLaren:

“The All Blacks that day looked like great prophets of doom.”

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

  “Ha, glad am I that no one knew that Rumpelstiltskin I am styled”

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The Queen’s messenger came to a high mountain at the end of the forest, where the fox and the hare bid each other good night, there saw a little house, and before the house a fire was burning, and round about the fire quite a ridiculous little man was jumping, he hopped upon one leg, and shouted out his name: Rumpelstiltskin.

Where Schedule 1 to the Interpretation Act 1978 meets Section 3 and Part 2 of the Schedule to the European Union (Amendment) Act 2008 a provision shouts out the name of the abbreviation EU:

3. Changes of terminology

This section has no associated Explanatory Notes

(1)In section 1(2) of the European Communities Act 1972 (interpretation) before the definition of “the Communities” insert—

““the EU” means the European Union, being the Union established by the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by any later Treaty),”.

(2)A reference to the EU in an Act or an instrument made under an Act includes, if and in so far as the context permits or requires, a reference to the European Atomic Energy Community.

(3)The Table in the Schedule to this Act sets out substitutions required to reflect terminology after the commencement of the Treaty of Lisbon.

(4)The Secretary of State or the Treasury may by order make other amendments of Acts or instruments made under Acts to reflect changes in terminology or numbering arising out of the Treaty of Lisbon.

(5)An order under subsection (4)—

(a)may include incidental provision,

(b)shall be made by statutory instrument, and

(c)shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)In an Act or instrument made under an Act a reference to all or any of the Communities shall, in the application of the enactment or instrument after the passing of this Act, be treated as being or including (as the context requires) a reference to the EU.


And in the Interpretation Act 1978:

s. 5 Definitions.

In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule.

Schedule 1 is amended by the European Union (Amendment) Act 2008

Provision of the Interpretation Act 1978 (c. 30)

Existing expression

Substituted expression

Schedule 1 (definitions)

“ “The Communities”, “the Treaties” or “the Community Treaties””

“ “ The EU ” or “ the EU Treaties ”” (to be substituted in the appropriate place in the Schedule)

 ""The devil has told you that! The devil has told you that," cried the little man, and in his anger he plunged his right foot so deep into the earth that his whole leg went in, and then in rage he pulled at his left leg so hard with both hands that he tore himself in two." (Rumpelstiltskin, the Brothers Grimm)

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

“Out, out, brief candle”…? (Macbeth Act V, Scene ii)

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The MP for Wellingborough’s speech at Second Reading of the European Union (Notification of Withdrawal) Bill – in shorthand the ‘EU NoW’ Bill (a contradiction in contraction if ever there was one) - stood out as clearly as his tie which rather had the effect of glowing amidst the debate like an eerie sartorial wick.

Indeed Mr. Bone referred to his tie in his contribution from the floor, stating: “I apologise for wearing the hideous tie again”.

However his speech stood out for different reasons. His contribution had integrity through its consistency and struck a well-considered conciliatory note. For example he reiterated his view that the Government was wrong in seeking to invoke the Royal Prerogative to trigger Article 50 unilaterally. Parliamentary scrutiny is a good thing, said Mr. Bone, and any Bill will benefit from parliamentary scrutiny. He struck, something of, a conciliatory note in seeking to distance himself from some of the more ill-advised matters arising amidst the EU Referendum debate.

Moreover Mr Bone also spoke against the Government’s continuing stance with regard to EU citizens in the UK which places significant undue worry on a particular sector of society. He said he, personally, would have preferred the Government to state, unilaterally, that EU citizens in the UK prior to the EU Referendum would have the right to stay.

The currency of that sentiment was devalued rather when Mr. Bone noted that the Government’s stance on the matter was understandable - as the Government wished to protect the position of UK nationals in other EU member states.

It is worth examining the proposition that there is some credible political leverage relating to the position of individuals (whether individuals from other EU member states sited in the UK or UK nationals sited in other EU member states) in forthcoming ‘Brexit’ negotiations.

Carl von Clausewitz (1780-1831) is acknowledged as, “one of history’s most important military strategists… [On War] is filled with quotations familiar today, in particular his notion of war as a continuation of politics by other means.”[1]

With that in mind it is perhaps worth contemplating the great strategist’s views regarding the position of civilians in conflict.

David Pugh[2] provides insight into Clausewitz’s perspective on the matter:

“He was aware that civilian suffering was not simply an accidental by-product of war but also the result of deliberate strategic intent to compel an enemy to do one’s will. Clausewitz did not endorse such methods because he had a moral and theoretical preference for decisive battles between conventional armed forces. He tended to dismiss violence against civilian persons and property as morally wrong, militarily ineffective and politically counter-productive.”

If nothing else, setting aside the obvious moral observations, and at minimum, those last three words might usefully echo in the House of Commons as the Committee Stage, so brief it seems barely worth the candle, of the European Union (Notification of Withdrawal) Bill begins.

Just before the Committee Stage debate began, Mr. Speaker was (in contravention to Parliamentary etiquette) applauded in the Chamber when he stated his position concerning a future visit by the current U.S. President – a position reinforced as a result of recent, controversial, Executive decisions.

Though commended in a Point of Order by the M.P. for Bolsover, Mr. Speaker’s remarks may not endear him to President Trump.

However Mr. Speaker may well have been applauded by a past U.S. President. On June 4th 1965, President Johnson gave a lecture, ‘To Fulfil these Rights’, at Howard University. Reflecting an aspect of the ‘Great Society’, President Johnson spoke of: “Equality as a fact and equality as a result”.

Closing his speech President Johnson said: The Scripture promises: “I shall light a candle of understanding in thine heart, which shall not be put out.” Together, and with millions more, we can light that candle of understanding in the heart of all America. And, once lit, it will never again go out.”

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

A Hair-raising Statement from Mr. Speaker

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Edited by John Gynn, Monday, 6 Feb 2017, 16:31

A hair-raising statement from Mr. Speaker today:

Related correspondence:

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

“Still no one knows it just the same, that Rumpelstiltskin is my name.” (The Brothers Grimm)

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Edited by John Gynn, Friday, 27 Jan 2017, 22:15

A long walk off an abbreviated pier?

On 10th October 2016, David Davis, Secretary of State for Exiting the European Union, said: “The [G]reat [R]epeal Bill is not what will take us out of the EU, but what will ensure the UK statute book is fit for purpose after we have left.”[1]

Ahead of this ‘Great Repeal Bill’, the Government has now published its ‘Article 50’ or ‘Brexit Bill’.

Properly styled, the European Union (Notification of Withdrawal) Bill 2016-17, it consists of just two clauses. As clause 2 provides only the short title, the ‘Article 50’ Bill is, essentially, comprised of just one substantive clause:



Confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1. Power to notify withdrawal from the EU

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2. Short title This Act may be cited as the European Union (Notification of Withdrawal) Act 2017

Oddly, the Government’s short ‘Article 50’ Bill uses only the abbreviation ‘EU’ in the long title and its one substantive provision.

This is unlikely to cause any practical difficulty in reality. Everybody knows what the ‘EU’ is after all. But you never know. Think Donald Rumsfeld’s ‘unknowns’.[2] Equally, important issues can go unsaid, dropping unnoticed down gaps between the constitutional floorboards. Discussing the important HS2 case (judgment , January 22, 2014), Lord Reed says, “But the most remarkable feature of the case of all was that none of the parties proposed to address the Supreme Court on [the constitutional principles governing the relationship between Parliament and the courts].”[3]

The most authoritative text, Cross [on] Statutory Interpretation (1995 at p.126) notes that changes can be made to the long title of the Bill prior to enactment. But it’s interesting to consider whether any difficulty might arise were it not clear whether an abbreviated term affords sufficient clarity should the abbreviation not be expanded by amendment leaving scope for legal argument.

This use of an abbreviation in the Article 50 Bill is, perhaps, given a little additional colour because the terminology employed to label the current European Union has not always been consistent. Professor Jo Shaw (2003, p.325) notes that, comparatively recently, precise and/or uniform terminology, in the context of ‘European law’, was not common and was, indeed, rife with scope for conceptual overlap. Indeed in their commentaries, ‘many observers and scholars… conflate ‘Europe’ with ‘European Union’ (Shaw, 2003, p.326).

“Perhaps your name is Shortribs, or Sheepshanks, or Laceleg?” (Rumplestiltskin)

Edward & Lane (2013, pp.435-436) discuss the issue of terminology within the styling of labels relating to a most fundamental aspect of the European Union. The ‘Common Market’ was undefined in the EEC Treaty but can be understood, say Edward & Lane (2013, p.435) as “a customs union plus: a customs union is concerned with the free movement of goods, a common market is concerned traditionally with the free movement of goods and the free movement of the factors of their production, that is, capital and labour”. Lord Cockfield was the architect of the internal market in 1985 which manifested in the Single European Act.

We might pause, momentarily to note that, despite being labelled an ‘Act’, the Single European Act is a Treaty. So no scope for doubt or confusion there!

Edward & Lane continue (2013, p.436) regarding the position subsequent to Lord Cockfield’s important initiative: “Yet confusion abounded. The internal market was sometimes called the internal market, or sometimes the ‘single internal market’, and both were frequently used interchangeable for common market.”

Let’s return to our abbreviated term. It was only in 1993, as a result of the Maastricht Treaty, that the term ‘European Union’ was first used formally in EU law. The Treaty of Lisbon, which entered into force on 1st December 2009, added some clarity and certainty to the terminology. But even it has its own niches of doubt. This is illustrated in text of the Lisbon Treaty where, for example, under Horizontal Amendments[4] is found:


 2)  Throughout the Treaty:

 (a)  the words "Community" and "European Community" shall be replaced by "Union" and any necessary grammatical changes shall be made, the words "European Communities" shall be replaced by "European Union", except in paragraph 6(c) of Article 299, renumbered paragraph 5(c) of Article 311a. In respect of Article 136, this amendment shall apply only to the mention of "The Community" at the beginning of the first paragraph.[5]

Anyway there seems no cause for concern. The miller’s daughter, who became Queen, was able to guess Rumpelstiltskin’s name in just three days.

"Is your name Conrad?" "No." "Is your name Harry?"  "No."  "Perhaps your name is Rumpelstiltskin?"

The Westminster Parliament has five days.

Cross (1995, p.124-5) says: “If the sole cause of doubt is a disparity between the otherwise clear and unambiguous words and a title, preamble, heading or side-note, the judge must disregard his notes and apply the otherwise clear and unambiguous words.”[6] Cross therefore concludes (1995, p.128): “It is the unambiguous words of a section which will prevail over the long title”.

Article 50, itself is clear by comparison with the UK Government’s Article 50 Bill: “The third paragraph of Article 50 of the Treaty on European union (TEU) states: 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… unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

However, in the one substantive provision, of the Article 50 Bill, section 1, only the abbreviation ‘EU’ is used again. So a court, seeking to interpret this abbreviation, would have little help through the one substantive provision of the Government’s future ‘Article 50’ Act.

One listed amendment for the Article 50 Bill - noting that “exit date” means the date on which the United Kingdom ceases to be a member of the European Union – seems superfluous. Debate related to the amendments will be interesting not least to understand why some have been tabled.

Oddly the Short title of the Article 50 Bill employs the unabbreviated term ‘European Union. Does that assist a court seeking to interpret the meaning? Cross (1995, pp.30-31) says not really. “As it is contained in the body of the Act and is, like the long title and preamble, subject to amendment during the Bill’s passage through Parliament, one might think that the short title should be treated in the same way as a guide to interpretation. However, its sole purpose being to serve as a brief identifying label, it is by no means as helpful as the long title or preamble.”

“Accuracy may be sacrificed to brevity”

However Cross does point to Scrutton LJ’s consideration, in Re Boaler [1915] 1 KB 21 (at 40-41), suggesting helpful use of the short title for interpretation in some circumstances. Scrutton LJ also noted: “[T]he short title being a label, accuracy may be sacrificed to brevity”.

What of abbreviations in long titles of other statutes in the same field?

The long title of the European Union Act 2011 did not employ any abbreviation:

“An Act to make provision about treaties relating to the European Union and decisions made under them, including provision implementing the Protocol signed at Brussels on 23 June 2010 amending the Protocol (No. 36) on transitional provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community; and to make provision about the means by which directly applicable or directly effective European Union law has effect in the United Kingdom.”

The European Union Act 2011 Act contains a significant amount of detail. That detail accommodated amendments in debate. The Government’s tactic of minimising substantive content in the ‘Article 50’ Bill may be its ‘Achilles Heel’.

The battle for amendments may prove to be the Trojan Horse with consequences both legal and political. The political consequences, not least, as a result of the UK Supreme Court’s decision relating to legislative consent motions in devolved parliaments and talk of a future referendum on independence for Scotland. The Secretary of State for Scotland, David Mundell has, interestingly, indicated that a legislative consent motion will be appropriate in the subsequent Great Repeal Bill according to today’s ‘i’ newspaper.

 Section 18 of the European Union Act 2011 providing just one example of the detail required in a, not unrelated, Bill states:

“Status of EU law dependent on continuing statutory basis Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.”

In an interesting journal article, Professor Feldman looks at Section 18 of the 2011 Act when discussing the increase in legislation that is promissory, declaratory, aspirational, and politically rhetorical. Such legislation, Feldman convincingly explains, can be considered distinct from a statute that is ‘law-bearing’:[7] Indeed the UK Supreme Court, in Miller & Dos Santos 2017, viewed s.28(8) of the Scotland Act 1998 as an example of a provision that was not 'law-bearing' but, instead, imported something of political rhetoric into the statute.

“Declaratory legislation generally attempts to encapsulate in legislative form what is said to be already the law or, sometimes, the constitution. The legislation may be directed towards a contested point of law, seeking to resolve it in a particular direction, as in the European Union Act 2011, section 18: 'Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.' One may question whether an assertion of this kind can actually resolve the contest over the question, which ultimately depends as much on EU law as on UK law.”

If a detailed provision like section 18 of the European Union Act 2011 may not clarify the legal position, what chance for its concise cousin in section 1 of the ‘Article 50’ Bill?

Politics can certainly flavour even choice of short title. W. A. Wilson[8] (1984, p. 87) notes that the Housing (Scotland) Act , “was called for political reasons”, the Tenants’ Rights Etc. (Scotland) Act 1980. Professor Wilson also notes that, “the interpretation section is vital” (1984, p.89). There is no interpretation clause in the Article 50 Bill.

The long title of the European Union Referendum Act 2015 was short but clear and, again, did not abbreviate:

“An Act to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.”

As Cross says (1995, p.124): “If… [a judge] is to fulfil his [or her] duty of reading the whole Act, when it is necessary to do so in order to determine whether there is an ambiguity, he must look at the long title [amongst other parts of the Act which surround or introduce the Act]”.

The UK Supreme Court’s judgments provide some interesting insight.

To quote Lord Hope (at paras. 13-14) of Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland) [2012] UKSC 61: “As Lord Atkin said in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods… The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used.”

Might an abbreviation be an ‘invalid method’?

The long title of the Immigration Act 1971 was of value in R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Respondent) [2012] UKSC 32 (at para. 25, per Lord Dyson).

Again in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) [2011] UKSC 46 the UK Supreme Court (at paras. 13 & 27) uses the long title of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 and the long title of the Scotland Act 1998 (at para. 145).

Why such a rush?

The Explanatory Notes[9] for the Article 50 Bill state: “Why is fast‐tracking necessary? The judgment of 24 January 2017 required the Government to complete an additional (and unexpected) step before the formal process of leaving the European Union can commence.  Completing this step through the normal Bill timetable would cause considerable delay to commencing the formal exit process, making it impossible to do so before the end of March 2017. This would further generate uncertainty as to the timetable for our exit from the European Union.”

As the Bookmakers’ odds and even the most hopeful Brexit campaigner will testify, it was the result of the EU Referendum that was unexpected. To say that the UK Supreme Court judgment could not have been anticipated is stretching credulity.

Moreover the Article 50 process could have been expedited (thus avoiding the need for fast-tracking the Bill’s passage) had the Government not prevaricated in the first instance with its unnecessary move to trigger Article 50 using prerogative power.

Blaming the UK Supreme Court’s judgment for the delay is like an MP blaming traffic in the Westminster corridors should they miss an important vote having paused to finish their cup of tea long after hearing the Division Bell. It might not be beyond the bounds of possibility that the delay after the EU Referendum result was manufactured partly in order to curtail debate on Article 50.

This may all just be an exercise in wasteful pedantry. After all, Rumpelstiltskin aside, can there be any importance in a name?  When the cry went out on the Cyclops’  island: "Whose fault is it?" Polyphemus cried back: "Nobody's”.

[1] H.C. Deb. 10 October 2016 vol. 615 at col.41. From memory Bill Cash, MP for Stone and probably the foremost authority, at least within Westminster, in the field of EU law, has been involved in the drafting of the ‘Great Repeal Bill’.

[2] Recently given credence by none less than Lord Neuberger: Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights?1 Faculty of Law, National University of Singapore Lord Neuberger 18 August 2016: at para. 14.

[3] Lord Reed gives The Sir Thomas More Lecture for 2014, EU Law and the Supreme Court, 14 November 2014:

[6] R v Bates [1952] All ER 842 per Lord Donovan at 844.

[7] Feldman, D. Legislation Which Bears No Law - Statute Law Rev (2016) 37 (3): 212

[8] W.A. Wilson, 1984, Introductory Essays on Scots Law, W.Green & son, Edinburgh.


Shaw, J. (2003) The European Union, in The Oxford Handbook of Legal Studies, OU Press, Oxford.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

"The more 'tis a truth, sir, the more 'tis a libel!”

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Edited by John Gynn, Wednesday, 25 Jan 2017, 19:44

Today is the anniversary of the birth of Scots poet Robert Burns.

Robert Burns (1759 – 1796)

Through cheery dinners across the world today, one of history’s most recognised literary figures will be acknowledged. Burns’ Address to a Haggis is a salute to characteristics that were not always evident amongst the powerful figures of Burns’ day.

Amusingly, warmly, but certainly not flippantly or rudely, Burns’ praise for the humble and honest soul is encapsulated in the medium of a food staple.

Further reflecting his personal view of social morality, Burns’ diamond pen was also turned to political satire with a devastating riposte etched on the window of a Stirling Inn.[1] The Libeller’s self-reproof juxtaposes the integrity of the great Scottish judge Lord Mansfield (whose contribution to the legal system of England & Wales marks him as something of a founding father) against the characters of those who would seek to silence criticism of King George IV – criticism which was not entirely without merit.[2]

Lord Mansfield (1705 – 1793)

The words etched (around 1787) on a window reflect Burns’ disappointment that fair and free speech could be so chilled by the powerful. 

“Rash mortal, and slanderous poet, thy name
Shall no longer appear in the records of Fame;
Dost not know that old Mansfield, who writes like the Bible,
Says, the more 'tis a truth, sir, the more 'tis a libel!”

In later years William Hone and George Cruickshank would cruelly lampoon King George IV.  

Cruickshank was persuaded to move from lampooning the King (the Prince of Whales cartoon being perhaps a final straw[3]) to illustrating Dickens’ work.

King George IV (1762 – 1830)

“By 1817 the government had had enough, and retaliated with three prosecutions for blasphemous libel. They were to be the high point of Hone's career. With scant regard for his own fortunes (or those of his wife and his dozen children), and with no formal legal training, Hone defended himself in three separate trials, conducted on consecutive days, before Lord Ellenborough -- the formidably intelligent and un-ashamedly reactionary Lord Chief Justice -- who made no attempt to hide his hostility towards the accused.

By regaling the jury with a seemingly endless (and mostly hilarious) flow of precedents, in which authors as respectable as Luther and Milton had used religious parody without any irreligious intent, Hone turned the prosecution into an object of ridicule, and even managed to leave the vain and pompous Lord Ellenborough -- the original Mr Justice Cocklecarrot -- apparently worsted on points of law.

Hone's acquittal in all three trials brought him renewed notoriety, with thousands taking to the streets in London to celebrate his victory for "Freedom of the Press", while government supporters blackguarded him as a dangerous rascal.” (Adamson, J., Sunday Sutelaph, April 17, 2005).

Just a few days before Burns’ anniversary the new Administration in the USA has sought to chill criticism of the incoming President.[4] As Burns’ said: “The more tis a truth sir, the more tis a libel”.

The freedom of the Press was, some decades earlier, recognised by Burns’ compatriot, philosopher David Hume as being an essential, perhaps perplexing, contrary counter-weight against extremes of government policy.

“If the administration resolve upon war, it is affirmed, that, either wilfully or ignorantly, they mistake the interests of the nation, and that peace, in the present situation of affairs, is preferable. If the passion of the ministers lie towards peace, our political writers breathe nothing but war and devastation, and represent the pacific conduct of the government as mean and pusillanimous.” (David Hume, Essays: Of the Liberty of the Press, first published 1742).

What Hume points to is the contrary-wise balance of the critical publications of the day, pamphleteers, no doubt foremost amongst them, that seemed to Hume to be inherent to cajoling British government towards a position that placed the government at a happy medium as between the extremes of tyranny possible under either totalitarianism or republicanism.

David Hume (1711 – 1776)

But can the contrariness of the Press be counter-productive where the perennial swings of perspective cement short-term public sentiment into real policy change through the, relatively new, medium of popular referendum? At least Press influence may not always, necessarily, be productive. That may have been what Lord Reed was hinting at in his Brexit judgment.

Hume again offers valuable insight. The flaws he identifies are readily discernible in both caricatures historical and contemporary. In a different essay he writes:

“Tis easy to observe, that comic writers exaggerate every character, and draw their fop, or coward with stronger features than are anywhere to be met with in nature… The figures seem monstrous and disproportionate… Thus we find in common life, that when a man once allows himself to depart from the truth in his narrations, he never can keep within the bounds of probability; but adds still some new circumstance to render his stories more marvellous, and to satisfy imagination.” (David Hume, Of Avarice, first published 1742).

Between them, poet and philosopher identified both solution and problem in Press freedom.

[1] Burns may have written the words, claimed them to spare the real author from blame - or neither.

[3] The Independent (London), January 9, 2015.

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Link to Brexit judgment

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Edited by John Gynn, Tuesday, 24 Jan 2017, 09:45

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Uncanny Coincidence?

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Edited by John Gynn, Wednesday, 25 Jan 2017, 19:31

James Eadie QC opened his Brexit case submissions in early December 2016 with (what was kindly considered to be) a humorous metaphor, involving a horse racing prospect with very-long odds, that hinted (with modesty and prescience) at his chances of success with regard to the primary issue in his submissions.

Can it just be coincidence that, today, in the 14.10 at Southwell horse racing race track Treaty of Rome is a runner alongside Mustn’t Grumble?

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Brexit Judgment

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When the UK Supreme Court hands down its judgment today at 9.30 am  the President of the Court, Lord Neuberger, may give the court’s opinion himself or he may select one of his fellow Justices to explain the judgment on behalf of the Court.

The oral delivery will reiterate the essential facts and issues and the distilled arguments of Counsel and then offer the Court’s determination as to the correct legal position in light of their assessment of the merits of the various legal arguments presented in debate through early December 2016. The Court will then adjourn.

The explanation of the Court’s judgment is likely to last several minutes – possibly noting the progress of the matter through the Queen’s Bench and, most importantly, the UK Supreme Court’s determination as to which arguments and on which issues have proved persuasive – the Respondents’ (Miller, Dos Santos and interveners) or those of the Appellants (the UK Government).

One of the justices will have written the lead opinion and there may well be written concurring judgments providing scope for some individual nuances within a determination with overall coherence.

There may be an indication as to which Justices have, seriatim, provided the Court’s reasoning in written form relating to the various arguments raised in debate. Professor Alan Paterson’s leading text book on the UK Supreme Court (Final Judgment: The Last Law Lords and the Supreme Court, 2013) sets out (p.95), amongst other illuminating information on the practice of the Supreme Court, a table of Justices’ written judgments between 2009-13.

For instance, one of the two Scottish judges will likely provide a judgment providing a specialized response to the Lord Advocate’s submissions relating to scope for a Holyrood legislative consent motion. The two Scots Justices are, almost undoubtedly, likely to concur on the issue along with other Justices – very possibly unanimously – holding, it seems very probable, that the Advocate General’s counter arguments, on behalf of the UK Government, have been most persuasive on the point.

While the Court may, in terms, expressly restate the Separation of Powers and the proper and respective functions of Judiciary, Legislature and Executive (possibly using one or both terms explicitly) it will be interesting to see if there may be any view as to the degree of Parliamentary scrutiny that might be deemed appropriate in light of the Government’s intervening pronouncements. Might scope for a White Paper be mentioned?

The recent (January 2017) UKSC judgment in Ramatullah (No.2) relating to the narrow definition applied to the Doctrine of Crown act of state (albeit in that instance the judgment operating in the Government’s favour) might, logically and consistently, it could be argued, be mirrored in a similarly narrow definition of Crown Prerogative in the context of the Brexit case (yet in that instance not in the Government’s favour).

The UKSC website states that the judgment is to be published in its authoritative, detailed and written, form, “on the Supreme Court website as soon as the judgment summary has been delivered”.

UK Supreme Court Website:

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No-Remaining doubt or Quasi-certainty & Certain Ambiguity

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Edited by John Gynn, Tuesday, 17 Jan 2017, 20:33

The Prime Minister, speaking at 11.45 am today at Lancaster House in London, gave a slightly clearer indication as to the Government’s likely direction relating to the UK’s secession from the EU. The Prime Minister’s general position was conveyed in a number of ways – not all as evident as others.

The words ‘A Global Britain’ – alluding to a trading position beyond the Single Market - were clearly noticeable on the boarding behind her. More subtly, a Black Watch tartan trouser suit may have been selected subliminally or may have been selected with great care and forethought.

Whichever, there was, arguably, thereby conveyed a subtle visual emphasis of Mrs. May’s view of the importance of continuing UK Union, not least including Scotland, in a post-EU future. That particular aspect may, politically, yet be like driving round a precipitous Highland bend without any crash barrier for security.

Mrs. May made public her broad approach regarding the UK’s departure from membership of the European Union (EU) in a speech titled: ‘The government's negotiating objectives for exiting the EU’. There was some clarity regarding constitutional matters. The Westminster parliament will vote on the Government’s final Brexit package. And the Government could hardly argue otherwise with Mrs May stating, at an early moment in her speech today, that, “the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement”.

In anticipation (jump before you’re pushed) of the UK Supreme Court upholding the principle of Parliamentary Sovereignty in its forthcoming judgment on the Brexit issue (a consistent and discernible stance by the Court given its perspective on the matter aired in the HS2 case in January 2014) Mrs May stated: “And when it comes to Parliament, there is one other way in which I would like to provide certainty. I can confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”

Further certainty was offered in that the devolved governments would not have any legislative participation beyond their views being considered through existing non-legislative channels of communication (such as Devolution Guidance Note 10 - the ‘DGN 10’ referred to by the Advocate General in the Brexit case) between Westminster and Holyrood.

Mrs May said: “We have already received a paper from the Scottish government, and look forward to receiving a paper from the Welsh government shortly. Both papers will be considered as part of this important process. We won’t agree on everything, but I look forward to working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom.” In particular the Government’s position will accord with what the UK Supreme Court will surely confirm in its forthcoming Brexit judgment - that a Legislative Consent Motion is not a necessary element of the UK’s constitutional framework in this instance.

Lord Sumption, not least, indicated that the constitutional position was that Article 50 TEU, though having knock-on effects on devolved matters, was not, itself, a devolved matter. Lord Mance, crucially, reiterated the respective positions of Westminster and Holyrood as demonstrated in s.28(7) of the Scotland Act 1998 which identify the constitutional supremacy of Westminster. And Lord Neuberger, amongst his fellow justices, tested the notion that s.28(8) – which, to all intents and purposes, incorporates the Sewel Convention into statutory form - was, nonetheless non-justiciable; being more of a matter for political discretion.

Quasi certainty came in the confirmation that the UK would not continue any form of membership of the Single Market. Mrs May saying: “I want to be clear. What I am proposing cannot mean membership of the single market… we do not seek membership of the single market. Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious free trade agreement. That agreement may take in elements of current single market arrangements in certain areas – on the export of cars and lorries for example, or the freedom to provide financial services across national borders – as it makes no sense to start again from scratch when Britain and the remaining Member States have adhered to the same rules for so many years.”

However there does ‘Remain’ (excuse the pun) some continuing scope for ‘certain ambiguity’ as to detail -particularly on the topic of the UK’s relationship to the Customs Union - and some doubt regarding likely practical consequences for the law. One significant example for future legal uncertainty is the exact nature of employment law in a post-secession UK. This is likely regardless of the political party in power. Mrs. May stated that “we will ensure that workers’ rights are fully protected and maintained. Indeed, under my leadership, not only will the government protect the rights of workers set out in European legislation, we will build on them”.

But this will likely only be determined in practice by the exact nature of economic fallout as the dust settles in a post-Brexit environment. The conditional phrase, “this government… will make sure legal protection for workers keeps pace with the changing labour market”, allows scope for significant flexibility in a downturn.

The Prime Minister said that, from day 1 following formal secession, the UK would still evidence the acquis communautaire (the entire body of EU law such as through treaty, legislation, case law etc) incorporated into domestic law up to that moment. By analogy that means that, the family home, used over some 40 years as a bed and breakfast, will end that aspect of communitarianism and return to being solely a domestic home. However there won’t be any need to demolish the building and start again. Instead things can be tailored to a domestic environment on an ‘as-and-when- needed basis.

Lord Neuberger has recently hinted that the UK’s EU membership may, in the broader scheme of things, represent little more than a ‘blip’ in the centuries history of the Common law. The Common law of England and Wales is a sufficiently flexible creature to accommodate such change.

The remaining bridge between UK and EU is the customs union. The Prime Minister has said that – unlike departure from the Single Market – she has no hard line on total departure from the Customs union. “I do want us to have a customs agreement with the EU. Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived position. I have an open mind on how we do it. It is not the means that matter, but the ends.”

What is, perhaps, a curious aspect of Mrs May’s speech is the timing. The PM could/should have said almost all of this much earlier. Perhaps the only reason for delay was to incorporate the ‘front of the queue’ rhetoric from the Trump administration in contrast to the Obama ‘back of the queue’ comment. That seems as curious as Mr. Gove’s re-emergence into the limelight as a central operator. Perhaps the two curiosities are connected. With a sense of looking after national interests Mrs May’s speech did contain a hint of Trump rhetoric.

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The 'Brexit' Case: James Eadie's Summary

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The Court seems to have in focus the fact that there has been no clear indication prior to the EU Referendum of the anticipated constitutional exit route in any detail. It may be that the Court will hold that this may be unfortunate but is a matter for the Parliament not the courts. However the scope of the Prerogative is justiciable so this legal aspect will certainly be addressed.

Lord Reed sought to clarify the debate asking Mr Eadie if the view was that purely domestic legislation (such as the Dangerous Dogs Act which seems to have become the default example to illustrate the point) could not be affected by the Prerogative. (The Prerogative not being applicable to purely domestic legislation but rather international treaty). That would contrast with the position if EU law had implemented a Dangerous Dogs Directive as Lord Sumption and Lady Hale noted. In that (Directive) instance the Prerogative could, argued, James Eadie on behalf of the Government’s stance in favour of using the Prerogative, properly be used - as the matter would then stand on the international plane where the use of the Prerogative is accepted. On this view, the European Community Act 1972 (the 1972 Act) could be viewed as transitory, a conduit in place only as long as UK membership subsists. The suggestion, in favour of using the Prerogative, is that the Executive exercises control over the Treaty obligations which pass through the conduit that is the 1972 Act.

An ingenious argument but will it convince the Court?  The justices’ probing questions bear no discernible relation to their ultimate considered opinions but the broad flavor of discussion so far does seem to point to a significant majority, at least, of the Eleven holding against Mr. Eadie on the question as to whether or not the Prerogative power was the appropriate constitutional mechanism in the circumstances.

The HS2 case shows that the Courts will uphold central constitutional principles and parliamentary sovereignty as against any perceived incursion from EU law. It would seem in conformity with that approach to uphold parliamentary sovereignty as against the Executive.

It all likely boils down to the distinction between what is law (and justiciable), what is a matter for politics (and thereby non-justiciable) and the respective role of the Court in relation to the Executive and Legislature.

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The Royal Prerogative

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In the course of Helen Mountfield Q.C.’s submissions on behalf of parties (Pigney and others) concerned that their circumstances might be adversely impacted upon by the UK’s secession from the EU, Lord Carnwath raised the point that, prior to incorporation into domestic law through statute, international obligations under the UK’s adherence to the European Convention on Human Rights[1] could have been removed by virtue of the Government’s use of Prerogative Powers because those rights existed, until that point, in international law but not, directly, in domestic law.

Lord Reed then raised the instance of the Criminal Injuries Compensation Board and discussion led to the circumstances of GCHQ.

A useful discussion of the issues (lying as they do at the very heart of the Brexit case) against and in favour of the use of the Prerogative can be found in an Adjournment Motion[2] on the Royal Prerogative in April 1993 HC Deb 21 April 1993 vol 223 cc485-92 .[3]

[1] Always to be distinguished from EU law. See, for a helpful summary distinction, from para. 15, Lord Neuberger’s lecture, Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights?1 Faculty of Law, National University of Singapore, 18 August 2016

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A stitch in time?

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The Lord Advocate of Scotland, James Woolffe QC, draws his submissions in the ‘Brexit’ case[1] towards a close looking at Section 28 of the Scotland Act 1998 (the 1998 Act).

The Lord Advocate encapsulated his overall position; within which S.28 would be raised: “Fundamentally I say this case is about who has the power to change the law of the land”.

Subsection 8 of Section 28 is a fresh ‘stitch’ - added with distinctive new thread - to the existing tapestry of the 1998 Act.  

S.28 of the 1998 Act provides:

“Acts of the Scottish Parliament.

(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament…

 (7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Subsection 8 was added (23.5.2016) by the Scotland Act 2016 (c. 11), ss. 2, 72(7).

Lady Hale noted that the interpretation of the words, “with regard to”, would require to be differentiated from the words, “relate to”. Lady Hale may have had in mind a point she made in a recent public lecture[2] where she said:

“…[I]t is not possible to divide ‘devolved’ and ‘reserved’ matters into precisely defined watertight compartments: some degree of overlap is inevitable. So, when deciding whether an Act of a devolved Parliament ‘relates to’ a particular subject, whether reserved or devolved, the court has to divine what it is really about. “

The Lord Advocate’s argument likely depends upon the UK Supreme Court taking the view that the ‘different conceptual language’ used in subsection 8 of the 1998 Act means that the Court should construe the impact of the triggering of Article 50 as falling within the same category as those instances where a legislative consent motion has previously been used.[3]

Lord Sumption, similarly to Lady Hale, noted that new subsection 8 was distinctive from some other provisions in the Scotland Act 1998 as it was declaratory of a political position. Its juridical effect might depend upon the political position adopted.

Therefore, whether or not this fresh stitch will offer any significant strength to the argument that the Brexit process requires a legislative consent motion may depend upon the UK Supreme Court’s view as to whether or not it is justiciable in the context of the current debate.

As the Court might well take the view that the triggering of Article 50 TEU is, essentially, a political question, it may not consider the matter legal and justiciable.

It is likely that a legislative consent motion will not be considered appropriate in that light.

[1] R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references. (Considered 5th to 8th December 2016, judgment anticipated January 2017).

[2] The UK Supreme Court in the United Kingdom Constitution, Inaugural lecture at the Institute for Legal and Constitutional Research, University of St Andrews , Lady Hale, Deputy President of the Supreme Court, 8 October 2015.

[3]  Written Case of Lord Advocate at para. 80.

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The Lord Advocate's Brexit Submissions

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Edited by John Gynn, Wednesday, 7 Dec 2016, 16:16

Lord Reed and Lord Hodge, as the judges most acquainted with Scots law, have taken the lead in seeking to probe Lord Advocate James Woolfe’s submissions.

The Lord Advocate’s submissions include the argument that a legislative consent motion on the part of Holyrood is appropriate in the current instance partly because it was used in the recent amendment of the competence of the Scottish Parliament in, for example, the Scotland Act 2012 (which primarily addressed Holyrood’s powers regarding taxation) and the Scotland Act 2016 which implemented further powers as a result of considerations arising ahead of the Scottish Independence Referendum. Consequently, the Lord Advocate is arguing that the current Article 50 situation, being analogous in impact to those legislative changes, also requires a legislative consent motion. By drawing on judicial contemplation of a similar scenario in Canada his argument certainly gains strength.

It may be, however, that the UK Supreme Court will view the matter of requiring a legislative consent motion in the context of the current Article 50 trigger as different.

The justices could consider that the foreign affairs context makes it a matter distinctive to the previous legislative amendments noted by the Lord Advocate because the previous uses of the legislative consent motion arose in the context of internal, legislative, change. By contrast, the Article 50 context is ‘external’ – it links to principles of constitutional law beyond internal legislative change.

Though Brexit will impact significantly on Holyrood’s legislative competence (actually disburdening the legislative constraints upon the Scottish Parliament by removing for instance s.29(2)(d) requiring Holyrood legislation to be compatible with EU law) it is of an order distinguishable from the internal legislative changes that have involved use of a legislative consent motion. That would mean that the justices could hold that there is no requirement for a legislative consent motion in this instance.

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Leave no irritant crumbs?

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Lord Panick’s point, aired before the UK Supreme Court this afternoon, that the EU Referendum was merely advisory (the advisory-only nature of the EU Referendum, though not found on the face of the EU Referendum Act 2015, was, in fact, explicit in Ministerial response to a Commons amendment put by Mr. Salmond) seems to be an insurmountable constitutional obstacle for the Government’s argument that the Prerogative Powers can be imposed on the justification that the EU Referendum result accords the Government popular authority to trigger Article 50 TEU without Parliamentary debate on the matter.

The Court has made it abundantly clear that, whilst conscious of the intensity of political debate (amongst the Public and what may occur in Westminster), the justices will determine the issues on the basis of legal argument alone. The Government’s argument seems set to fail but the justices will be at pains to provide a judgment that leaves no left-overs so as to liberate from any legal ambiguity the inevitably tense political debate that will occur regardless of the decision. This determination to ensure no loose threads are left dangling seems to be reflected in the probing questions coming from the bench of eleven looking to snip away any discernible frayed edges.

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An early bath for the devolved governments?

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Lord Reed has indicated that the UKSC will contemplate a distinction in the mind of the Court as between a narrower scenario, involving a relatively straight-forward case of interpretation as between what are reserved and what are devolved matters on the one hand[1] and, on the other hand, a more ‘generous’ or at least ‘different’ approach for a scenario (such as the current ‘Brexit’ appeal).[2]

The latter generous/different approach is in the same field as the HS2 case where certain fundamental aspects of the constitution are accorded something of a special status.

If the UKSC adopts the narrower Robinson approach, the intervention on the basis of a viable interest amongst the devolved powers within the UK may amount to little - with the matter of Brexit and the triggering of Article 50 TEU simply being considered a reserved matter. End of that argument.

However if the more generous/different AXA approach is used there may well be some scope for the devolved governments to be more directly involved in the process.

In Imperial Tobacco v Lord Advocate [2012] CSIH 9 Lord Reed said that the Scotland Act 1998 was, “not a constitution” but an ordinary statute.

That might suggest that Scotland could have left this particular competition at an early stage.

[1] Robinson v Secretary of State for Northern Ireland [2002] UKHL 32

[2] AXA General Insurance v Lord Advocate [2011] UKSC 46

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None to dispute sovereignty with me

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UK Sovereignty and the EU illuminated by watery analogy.

“…none to dispute sovereignty with me lord of the manor”

Sovereignty is a concept that is context-sensitive. This characteristic of sovereignty makes it a fluid notion that can fill both the champagne flutes and the beer glasses of debate.[1] It is a liquid concept capable of floating on diverse intellectual streams of thought.[2]

With interpretations of sovereignty that are antithetical, an apparently logical conclusion would be that such opposing accounts must be irreconcilable. However even conflicting interpretations of sovereignty can have validity. That is so because of the fluid nature of the concept.

In the fifth century BC, the Greek philosopher Heraclitus said that you could never step into the same river twice. Because fresh and different waters flow, even in the same river, the impression of each particular instant is unique. Each individual can give an accurate description of that particular moment. So where a reasoned interpretation of sovereignty is provided, based on a rational assessment of the concept at any particular time, it may therefore conflict with other interpretations - yet still remain valid.[3]

What river could be more fitting to use in analogy of sovereignty, for a discussion of a concept that will eventually[4] wash heavily against the walls of the Westminster parliament, than the Thames? Indeed there seems to be a number of coincidental affinities between the River Thames and the concept of parliamentary sovereignty.

One such is that in the very same year that the naval vessel The Thames was launched, A.V. Dicey’s seminal work on parliamentary sovereignty was published. Dicey’s notion of the sovereignty of Parliament ‘from a legal point of view’ is  that ‘Parliament could make or unmake any law whatever’ and that ‘no person or body could override or set aside the legislation of parliament’ this being  [in 1885] ‘the dominant characteristic of our political institutions’.[5] The vessel The Thames was scuttled by its subsequent South African purchasers just as Sir Ivor Jennings view on sovereignty partly scuppered Dicey’s traditional theory of sovereignty some decades after Dicey’s death. Yet Dicey, himself, had reviewed his concept of sovereignty well before Jennings.

Dicey’s Introduction to the 8th edition of the Law of the Constitution, written in 1914, states: “The present edition, therefore, of the Law of the Constitution, is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914”. Dicey concluded, of course, that law and opinion in the early 20th century had seen wholesale change requiring that he significantly revise his original conception of sovereignty in that Introduction.

Though its 1885 form is scuppered, Dicey’s concept of parliamentary sovereignty persists as a sound theory in UK constitutional law just like the hull of a scuppered vessel like The Thames no doubt remains displaying its essential form (Jennings did, after all, confirm Dicey’s essential notion).

Equally it should be borne in mind that ideological perspective impacts upon conceptions such as sovereignty. In his Preface to the 9th edition of A.V. Dicey’s Introduction to the Study of the Law of the Constitution, constitutional expert Professor E.C.S. Wade says, “It is questionable whether any writer upon the subject of the constitution can entirely eliminate his own political predilections.” Dicey’s main critic, Sir Ivor Jennings, identifies Dicey’s politics as those of a Palmerstonian Whig.[6]  Ideological predilections, therefore, can impact on politically-charged conceptions such as sovereignty and free movement of workers. A strictly legal focus can assist in understanding the proper position of such notions in law.

So, bearing in mind that sovereignty is a concept that can be understood as a fluid concept, subject to change and ideological perspective like Heraclitus’ river, the accession of the UK to the EEC on 1st January 1973 under the European Community Act of 1972, represents a significant moment in the changing nature of UK sovereignty. Indeed something of a tidal surge.  Prior to the formal accession of the UK to the EEC on the 1st January 1973, the EEC had built up a significant body of law. This is known as the acquis communitaire.

At the moment of UK accession the acquis communitaire was imbibed into the mainstream of UK law. Landmark CJEU case law such as Van Gen den Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, which created the principle of direct effect in EEC/EU law, and Costa v ENEL [1964] ECR 585, unequivocally declaring the supremacy of EEC/EU law, drifted into UK law on the 1st January 1973 on a current that carried the acquis communitaire with it.

In HP Bulmer ltd. & another v. J Bollinger SA & others [1974] 2 All ER 1226, Lord Denning said: “[W]hen we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. ” Lord Neuberger recently  noted[7] that Lord Denning subsequently, ‘warmed to warmed to his theme, observing that:

“[T]he flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”[8]

Thus Dicey’s notion of sovereignty was significantly dissolved within the context of these fresh EEC/EU waters.

What Lord Denning described as an ‘incoming tide’ of EEC/EU law reached a high tide mark in R v. Secretary of State for Transport, ex parte Factortame ltd (No2) [1991] 1 AC 603 (HL) when a case concerning domestic maritime legislation saw a Spanish fishing vessel cast a shadow down the Thames that reached Westminster.[9]  In Factortame , UK legislation, the Merchant Shipping Act 1988, was successfully challenged on the ground that its provisions violated aspects of the EEC Treaty (now found in TFEU Arts. 26 and 46). This conflicted with Dicey’s legal view of sovereignty that, ‘no person or body could override or set aside the legislation of parliament’.

However in the HS2 case in January 2014,[10] the UK Supreme Court began to erect something like the Thames Barrier to moderate the ‘tide of EU law’ by providing a judicial bulwark (albeit largely obiter) around fundamental constitutional principles.[11] Lord Reed says of HS2: “This seems to me to be the court’s most significant decision on EU law, and arguably on constitutional law”.[12]

It is a paradox that the quiet authority of the UK Supreme Court in HS2 was addressing the concerns relating to sovereignty that, in no small measure, contributed to a referendum result that moves the UK towards ending its EU membership. (That is compounded by the fact that the rights of free movement under the European Economic Area (EEA), that essentially mirror EU free movement rights for persons,  are something a post-EU UK has aspired to).

Yet the notion of EU law dissolving sovereignty can be considered from a different, more constructive, perspective which views the impact of EU law as akin to the fertility brought to alluvial land as a result of flooding. Lord Neuberger thinks so noting:

‘Despite the fact that Lord Denning was one of the three or four most influential common law judges of the 20th century, it seems to me that that notion, like his memorable image of the common law being submerged by an inexorable tide of European law, rests, I suggest, on a misunderstanding… the common law is the product of many different sources, and all the better for that. It has always developed as a synthesis, or, if you prefer, as a discriminating magpie, picking up and often improving the best from other legal systems. The development of the common law, in the light of its recent reception of EU and European Convention law is therefore entirely in keeping with its historical traditions.”

Moreover any conception of sovereignty as a notion importing ideas of traditional autonomy is questionable in a modern context. David Cameron made this point from the Despatch Box during the EU Referendum debates. For who can really say, “none to dispute sovereignty with me lord of the manor”?[13]

[1] This phrase is borrowed from Lord Denning in HP Bulmer ltd. & another v. J Bollinger SA & others [1974] 2 All ER 1226.

[2] See, for example, the debate on the EU Council meeting in the House of Commons on February 2016: (Accessed, Sunday, 19th June 2016).

[3]  Heraclitus’ aphorism is considered in BBC Radio 4’s In Our Time broadcast Thursday, 8th December, 2011 and is read in the original Greek at 7.45 mins in to the discussion:

[4] F.A. Hayek pinpoints the moment as occurring in 1766 discussing, with concern, his view that democracy inevitably progresses to a point where, “sooner or later it [i.e. democracy] comes to claim the right to settle any particular question in whatever manner a majority agrees upon. This is what happened to the Athenian democracy at the end of the fifth century… In modern times, a similar development started when the British Parliament claimed sovereign, that is unlimited powers, and in 1766 explicitly rejected the idea that in its particular decisions it was bound to observe any general rules not of its own making”.

[5] A.V. Dicy (1885) Introduction to the Study of the Law of the Constitution, Chapter 1.

[6] Sir Ivor Jennings (1959) The Law and the Constitution, p.56 f.1.

[7] Has the identity of the English Common Law been eroded by EU Laws and the European Convention On Human Rights?1 Faculty of Law, National University of Singapore, Lord Neuberger, 18 August 2016.

[8] Shields v E Coomes (Holdings) Ltd [1978] 1 WLR 1408 at p 1416.

[9] The extent to which Dicey’s concept of parliamentary sovereignty is negated by Factortame is, however, open to debate (Goldsworthy, Parliamentary Sovereignty, 2010, pp.287-8).

[10] R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport [2014] UKSC 3. See also HMRC v Aimia Coalition Loyalty UK Limited (No.2) [2013] UKSC 42 where a CJEU preliminary ruling was, for the first time, challenged by the UKSC.

[11] There is a curious reverberation in that the HS2 project is in jeopardy as a result of the EU referendum result.

[12] The Sir Thomas More lecture for 2014, EU law and the Supreme Court, 12 November 2014.

[13] Daniel Defoe, Robinson Crusoe, Ch.9.

Permalink 2 comments (latest comment by John Gynn, Wednesday, 7 Dec 2016, 16:57)
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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Parliamentary Intent & the ECHR

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In debating prisoners’ voting in the House of Commons (10 Feb 2011 : Column 493) Liz Truss, newly appointed as Justice Secretary, also voted in favour of the Motion on prisoner voting[1]. This, admittedly rudimentary research, might support the view that the new Prime Minister has incorporated new office holders of a like-mind on the question of the ECHR and ECtHR into her Cabinet.

Whatever the merits of trying to ascertain the predisposition of our law-makers towards particular aspects of law reform, parliamentary debates on such matters, are always well-worth reading. The debate on prisoner voting includes, for example, relevant insight into the position of the current Leader of the Opposition and provides a good idea as to the Government’s likely standpoint today:

The motion on prisoner voting is provided here:

“Mr David Davis (Haltemprice and Howden) (Con): I beg to move,

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

The motion stands in the names of the right hon. Member for Blackburn (Mr Straw), my hon. Friend the Member for Esher and Walton (Mr Raab), my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friends the Members for Kettering (Mr Hollobone) and for Basildon and Billericay (Mr Baron) and, of course, myself”.

The debate included some useful discussion, for instance between Bernard Jenkin, Ian Paisley and Dominic Grieve (then Attorney General) regarding the constitutional relationship between the Strasbourg court and the UK:

“Mr Jenkin: I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?

The Attorney-General: First, I would say this to my hon. Friend. I am very respectful of the powers of this House and, having been a Member of it for 13 years, consider it to be very important. As he will also be aware, it is Parliament that is sovereign. I hope that he will excuse my making that delicate point. The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right, that does not remove the necessity for the Government to be bound by their treaties and international obligations. [10 Feb 2011 : Column 511]

Mr Jenkin: I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?

The Attorney-General: It is certainly true that our international legal obligations may alter by virtue of what Parliament has enacted, but the current position is that we have an international obligation that, if I understood correctly from what they said, is not one from which, in its principles, my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn would wish to resile. We are bound by it as Ministers of the Crown. However, if my hon. Friend will bear with me, I will come to that in a moment.

I repeat the point that the Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate-indeed, we may have to have more than one substantive debate on this issue-will be helpful to the process of finding a way through the problem that is exercising many Members of this House. However, although Members are fully entitled to express their disagreement with the judgment of the European Court-indeed, I have done so myself: I said that I consider the judgment in the Hirst case to be an unsatisfactory one, for precisely the reasons, which I will not repeat, that the right hon. Gentleman and my right hon. Friend articulated-the fact that we may be in disagreement does not in itself solve the problem.

In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations-although I have to say that on occasion I have felt very frustrated on this issue in the last few years, and actually rather angry. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court. That will give us the best possible chance of winning the challenges that may arise thereafter. As we know, given the litigiousness of those who think that there is a gravy train on which they might be able to climb, we can guarantee that, whatever we do, there will be legal challenge to it that will go back to the European Court of Human Rights for determination.

Ian Paisley: I appreciate the Minister's helpful guidance. Will he address the point made by the right hon. Member for Blackburn (Mr Straw) when he quoted Lord Hoffmann, the former Law Lord, saying in a lecture that it cannot be right for a European supranational court

"to intervene in matters on which Member States of the Council of Europe have not surrendered their sovereign powers"?

Will the right hon. and learned Gentleman give us some guidance on that point?

The Attorney-General: The hon. Gentleman is right that there has been a great deal of commentary, including in some learned lectures by judges, such as Lady Justice Arden, Lord Hoffmann and others, who have expressed growing concern about the way in which the jurisprudence of the European Court of Human Rights is being  [10 Feb 2011 : Column 512] developed and about the Court's tendency towards micro-management. That is the nature of the challenge. That said, for the reasons I gave a moment ago, the judgments of the Court constitute an international obligation, so far as we subscribe to the convention and to membership of the Council of Europe. That is the dilemma the Government face, as did the previous Government: how can we find a way to persuade the Court to respect the views that the legislature may express without having to withdraw from the convention or the Council of Europe entirely, which, I have to say, would not come without cost or consequence for this country?"

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Did somebody mention the ECHR?

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Edited by John Gynn, Thursday, 14 Jul 2016, 11:55

In the campaigning ahead of the 2005 UK General Election, discussion of the European Union was notable by its almost complete absence. The EU seemed to be perceived as a topic that could seriously damage any of the party campaign bandwagons in 2005.

Sometimes what is not said can provide scope for analysis as much as what is actually said.

It is not quite so surprising that the issue of the European Convention on Human Rights (ECHR) has been blown into the long grass as the 2016 EU referendum debate progressed. A referendum, unlike a General Election, is, after all, largely a single-issue debate (albeit there were many associated issues affected by the dominant question of EU membership).

But, given that the EU and the ECHR have, so often in popular debate, been intermingled, the silence on the topic of the ECHR during the EU referendum debate has been deafening.

It is almost certain that Prime Minister Theresa May will follow the stance she has clearly adverted to in the recent past and look to ‘rebalance’ the relationship between the European Court of Human Rights (ECtHR) and the UK Supreme Court.[1] In April 2012 the new Prime Minister Mrs May indicated her position concerning the Strasbourg Court, a move, “to ensure that the European Court operates appropriately and in a way that reflects its original intentions.”[2]

As at 11.30am on Thursday 14th July, Chris Grayling has yet to have any future role in Mrs May’s Cabinet announced. Given the proximity of his position to that of the Prime Minister as regards the ECHR and the ECtHR (see earlier post ‘But will Hrunting Bite?) Mr Grayling might well be a good fit as a new Secretary of State for Justice. However Mr Grayling was closely associated with the most recent incumbent Mr Gove, who, seeming to have stepped into the ultimately ill-fated shoes of Sir William Stanley[3] in place of Boris Johnson, has just been sacked. [Indeed at 11.51 Liz Truss, previously Secretary of State for Environment, Food & Rural Affairs, is appointed as Secretary of State for Justice].

It is often helpful to consider the backgrounds of the various political architects who will shape the law ahead.

Mr Grayling’s position is relatively clear. What of  Amber Rudd who will replace Theresa May at the Home Office? Secretary of State for Energy and Climate Change for the last few years; there appears to be little evidence of the new Home Secretary’s stance on the ECHR.

However, in February 2011 Amber Rudd supported a motion tabled by Conservative MP David Davis (now appointed Minister for ‘Brexit negotiations’) and Jack Straw (previously Labour Justice Secretary). Her support for this Motion hints at her likely stance regarding the European Convention on Human Rights (ECHR) – or at least the European Court of Human Rights (ECtHR) interpretation of the signatory states’ obligations under the Strasbourg Convention relating to the rights of prisoners. That Motion defied the European Court of Human Rights’ ruling that held the UK’s blanket prohibition on prisoner voting to be a breach of the ECHR.[4]

That means that the new Home Secretary’s stance on the ECHR and the ECtHR accords with that of the new Prime Minister.

The likelihood is that the new Prime Minister will, in the near future, look to address her concerns about the ECtHR’s widening interpretation of the scope of the ECHR through a shift in constitutional law. Chris Grayling (if appointed as Justice Secretary in place of Michael Gove) and Amber Rudd will reflect the Prime Minster's own stance.

However whether the government would be inclined to rebalance the UK’s obligations under the ECHR at the same time as it negotiates Brexit with the EU will be a question of political timing. The Government may opt to deal with Brexit first as ECHR rebalancing may affect wider negotiations.

[1] Mrs May appears, previously, to have been amenable to the UK leaving the Strasbourg Convention: CNN Wire, July 7, 2016, comments:  “May had also wanted the UK to leave the European Convention on Human Rights, but has now dropped the idea with Parliament unlikely to support it”. That stance is also noted by The Guardian  on June 28, 2016.

[2] HC Deb. 17 Apr 2012 : Column 179

[3] See previous post; ‘What says Lord Stanley?’ Richard III, Act V, Scene 3.

[4] In that prisoner voting debate, Lib Dem MP Tom Brake made an interesting point: “What is the logic behind this ban? We do not remove prisoners' access to healthcare or we don't stop them practising their religion, so why should we impose a blanket ban on a prisoner's right to vote?''

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