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:
- 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;
- 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.