Overseas Chambers of Peter Harris

Maison de la Boucterie
Rue de la Boucterie
Saint Saviour
Jersey, JE2 7ZW

Article 50 and Brexit: The United Kingdom perspective alongside that of the Crown Dependencies

October 10th 2016

Well, it is sometimes the role of a lawyer to venture into the unknown and attempt to define the unknowable.

That admission of humility aside, the Brexit notification process is throwing up all sorts of constitutional challenges in the United Kingdom, and the prospect of Brexit negotiations are generating in turn scepticism in Europe, particularly Germany as to the United Kingdom's capacity to achieve its stated objectives.

My tentative view is that the capacity to exercise the powers inherent in article 50 have to lie somewhere within the United Kingdom constitution as those power have been granted and accepted. They include firstly the capacity to take a decision and secondly to notify it to the EU. It is becoming clear that the power to enter into Tretaies an dto widthdraw fomem lies in he Cron Preorgative exercised by Her Majesty's Government, not by Parliament, whose role is to supervise elected Government, not to forestall it. Whilst that was slightly amended bythe Constitutional Reform Act of 1925 in relation to the renegotiation of Treaties, which have to be laid before Parliament, it seems not to apply to simple withdrawals. Perhaps there lies the difference between continued multiple coïtus and coïtus interruptus?

The question is where lies that capacity and which organ or organs hold the powers that go with it? Here may lie a distinction in approach between the older notion of constitutional law and the now triter notion of public law.

The main issue is that our concept of law, admittedly an insular one, is based both upon substance, which is overrated in this area, but also on the form or procedures shaping the right or obligation and its exercise within its legal context. It is the latter issue which is subjacent here. In layman's terms, to extend and circumscribe Anthony Wedgewood-Benn's political insight: who has the power to do what, and then who can regulate its exercise?

There is no one to remove that power, so here allocation and regulation will have to do. Here in the last resort that allocation may still remain with the Privy Council as the final arbiter of the extent of Crown rights, duties and prerogatives within the collectivities of Crowns as a whole. That even after the Constitutional Reform Act 2005, whose economy of words is directed only to certain items, as is customary, due in part to the Law Draftsman's care so as not to inadvertently repeal by generality. .

It is clear that the Crown as a whole has the power, as article 50 gives the Crown the power to operate article 50, but only as the United Kingdom Crown. Is that power and / or its unilateral exercise not limited to the United Kingdom? By constitutional definition, it has to be. Let us not forget that the United Kingdom had to compromise with the Crown Dependencies on the manner and style of their future relationship with the European Communities prior to 1972, There is no argument as to whether the United Kingdom - i.e. its Crown inclusive of Government and Parliament- will be required to compromise with the Crown Dependencies on the extent and effect of the United Kingdom's Decision, and how and to what extent it is implemented.

Referring to Professor Elliott and Alison Young's running commentary on the issue, there is no clear evidence that the Decision, the article 50 Decision, has even been taken yet. The House of Commons Library published a briefing paper for MPs on 3 June 2015 explaining that, what was then the European Union Referendum Bill

 

"does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced."

 

Given the Crown Dependencies' respective legal independence from the United Kingdom Crown, it is not within the United Kingdom's prerogative, whether as Government or Parliament to "Brexit" the Crown Dependencies without prior consultation and agreement. That is clear irrespective of the power to decide or give notice under article 50 be exercised by the Prime Minister, any part of Whitehall or for that matte even by the United Kingdom Parliament. Professor Mark Elliott has attempted to analyse what informal procedure is emerging from HMG's Skeleton Argument in the Brexit Litigation.

The questions then have to be asked as a matter of urgency as to how any power is exercised, who exercises it and on behalf of which Crown of the generic whole which comprise this international concept of the expression of this not so insular sovereignty.

Thérésa May's comments, as Her Majesty's Prime Minister of the United Kingdom, and First Minister of the Exchequer, hover above that issue, and do not condescend to detail. She proceeds at an elegant incremental basis, One is tempted to cite Spenser's "Epithalamion" - Loe she comes with portly pace - but this is rather more of a divorce than a pre-nuptial negotiation of Hymen!

Certain German Lawyers have started the process of Schadenfreude, or distanced piteous humour, on the subject and are now saying that the United Kingdom is not actually administratively capable of negotiating an adequate trade agreement or worse agreements with the EU itself. That is a standard German negotiating tactic which reveals that they also are unsure of their ground. A recent exchange on Linked In has shown that a German Lawyer, a reasonable one, is already rattling that shield.

Theresa May has timed the timetable for Brexit in as much of a political manner as a legal one. The French and Germans were very concerned that their presidential candidates would be faced with Brexit in the middle of their campaigns, and the date has in effect put the ball of political instability firmly within the European side of the net.

Article 50 is an unknown area. There is only limited precedent in that area, to the extent that that concept has any relevance to either the EU's or the British legal position or notion.

I therefore propose to comment upon certain issues as they arise, and would like to start off with three posts by Professor Mark Elliott, a Professor of Public Law at the University of Cambridge, who also advises the House of Lords: in order of time:

https://publiclawforeveryone.com/2016/09/30/the-governments-case-in-the-article-50-litigation-a-critique/

https://publiclawforeveryone.com/2016/10/02/theresa-mays-great-repeal-bill-some-preliminary-thoughts/

and then:

https://publiclawforeveryone.com/2016/10/09/on-whether-the-article-50-decision-has-already-been-taken/

In either case, it is clear that the current United Kingdom position is very introverted, and does not take into consideration the State's obligations and duties on a wider international scale. the institutionalised approach appears to be treating this as purely a domestic issue, without actually analysing the real issue in its fullness:

The issue is not only whether the Decision has been taken or not, or at what point in any unwritten procedure the United Kingdom's executive might find itself a point which the Government's Skeleton Argument sidesteps with typical Whitehall agility, but no party has yet actually queried which organ or organs have the power to take that Decision, not only for the United Kingdom, but also for the Dependencies.

So to put it otherwise, which organ or combination of organs has the power:

  1. firstly to take the decision to remove the United Kingdom, arguably already taken by those voting; note that the CD's were invited to but were not included in the vote out of respect for their independence;
  2. secondly to actually notify it to the European Union, and on what constitutional basis, insofar as the either or both of the United Kingdom and the Crown Dependencies are concerned?

It is at that point that the CD's could interject their position as to whether they wish to retain the arrangements which they currently enjoy with the EU. That would be a interesting development, as in fact it could open a back door into the Single Market for goods, but not services, for the United Kingdom through an independent Dependency, remaining within the Single Market for Goods. Whilst interesting, I fear that the EU counter to that would be very stringent restrictions on the Crown Dependencies, who for the moment function mostly outside the Two more recent Pillars of the EU, and only to a limited extent within the First Pillar. On the other hand if correctly timed and articulated in relation to the Treaties, that may pass by non-amendment,

That will doubtless be addressed as usual without public debate, between the Crown Dependencies and the usual British channels; but is unlikely to be raised publicly as the Crown Dependencies position in the Financial Markets is a strategic one for the City and for the United Kingdom. For these purposes, as with most, the United Kingdom does not include the Crown Dependencies. The de Carterets, who late were granted New Jersey were one on the Norman Families which invaded in 1066, and havr retained their privileges not to be subjected to the then embryonic English common law and its subsequent Parliament ever since.

Is the only way in which this fundamental issue of sovereignty can be addressed is by it providing a strategic advantage for HMG, representing Her Majesty, or, otherwise by a Privy Council intervention to advise both Her Majesty and her Government?

It is not likely that the unseasoned lawyers in the Brexit litigation can rise to this Peculiar occasion in using this argument which is in fact very relevant as to the leapfrog procedure of appeal which they are considering on the basis of the "Rule of Law". In that respect, s.1 of the Constitutional Reform Act, 2005 which does not apply to the CDs is a welcome statutory restriction upon the law's procedural application, as it now stands resulting from its unrepealed pre-2005 condition:

s. 1 The rule of law

This Act does not adversely affect-

(a)the existing constitutional principle of the rule of law, or

(b)the Lord Chancellor's existing constitutional role in relation to that principle.

The actual mechanics of substitution of the Supreme Court for the Judicial Committee of the House of Lords, and only in relation to Scotland and Northern Ireland, the Privy Council are but mechanical and do not in any way modify the Privy Council's fundamental jurisdiction to arbitrate in constitutional matters not addressed by the Constitutional Reform Act 2005.

More anon ....? The usefulness of this analysis, for the United Kingdom Crown, can only be proved in the furnace of the current case. Perhaps going back to the assizes of King John sansterre, in Europe, and the fact that the CD's were enabled to retain their Norman customs might place this in its true perspective?

The issue is now to what extent the American and British method of creating and using money will maintain its vitality as a provider of capital in Europe. The Continentals consider it alien, as opposed to merely insular or international. However neither Frankfurt nor Paris can be relied upon to do otherwise than their training tells them. Most foreign financiers are very aware that the language of finance spoken in Germany and in France is very different, if not antiquated in comparison.

That does not alter the worry that the increased attempts to "moralise" international financial markets is no little more than an attempt to manage them according to continental methods, which still simply lead to a different and possibly less efficient economy. In other terms, the Crown Dependencies' importance as financial platforms globally might increase. Whatever is done the effects of the USA running a budget deficit and being unable to return the capital invested in its economy from abroad will remain a defined risk which can be managed from both the City of London and also from the Crown Dependencies The Deutsche Bank was manifestly unable to assess its risks from Germany in a foreign jurisdiction whose concept of money and the monetisation of investment risk was at odds with its own.

For the French "moralisation des marchés" read monetisation of markets?

Our partially unwritten constitution remains vigourous under the condition that its unwritten concepts and assumptions are firstly understood and then remain accepted both as to their foundations and the direction of any evolution.