Brexit and Legal Challenges: An Escape Route Opens Up.
A speech given to ERIS on 8th December 2018 by Rob Martin.
As trade unionists we have long been wary of using the law to resolve our problems. Traditionally we have preferred collective strength and, when necessary, industrial action, to achieve our goals, especially in the last century when court judgements against us from Lord Denning were regular and anti-union case law bolstered Tory employment legislation to our constant detriment. Yet, often the law has provided a safety net that has given protection to our organisations and to our members, none more so than the extensive laws that have originated from our membership of the EU. These would never have gone on the statute book in the UK during the last three decades had we not been in the EU. Indeed, ERIS has long argued we would not have the degree of worker protection, health and safety measures and the universal conditions of service that we enjoy, such as rest periods and paid holidays, were it not for the EU. But in relation to Brexit too the law can help us sometimes in challenging it – in fact, maybe eventually – I will help us greatly in avoiding it completely. Today I am going to look briefly at the legal challenges made against Brexit or this Government’s Brexit strategy and will finish by looking at the problems the Government has had in the last week with the vote holding them in contempt of Parliament and the furore over their refusal to publish the Attorney General’s advice to the Cabinet on May’s Brexit deal. You will see from this how it all fits together and the total contempt this Government has for Parliament and democracy. There has been a whole array of legal cases against Brexit or the Government’s handling of it, some more successful than others. The most significant – until this week – was Gina Miller’s successful action via the High Court, then through the Supreme Court, which forced the Government to trigger Article 50 only after the matter had been debated and approved by Parliament. That Theresa May had to be forced by the courts to allow MPs to discuss Article 50 was a major indication of her unwillingness to be open and inclusive, a sign of her determination to act only in her own interests and that of the Conservative Party, not in that of the nation, as she constantly alleges. It showed Brexit is not about regaining control or restoring Parliamentary sovereignty, it is about the ruling party bypassing Parliament and seeking to rule unchallenged. Most of the cases that have been taken have been seen by the courts, (and have been argued by the Government), as either hypothetical or political, often leading to their failure. However, even when this has happened the pressure put on the Government by the process has sometimes forced the Government to alter its strategy. The Good Law Project is an organisation that has backed a number of cases and its attempt to force the Government earlier this year to disclose Treasury papers on the economic impact of Brexit did just that – it pressurised the Government to eventually publish the papers. MPs had argued to see them too but the Government refused and only realised finally that if they didn’t disclose them they would lose in the courts, so they reluctantly gave them to the House of Commons Brexit Select Committee as a last resort. Legal action funded by the Good Law Project has also resulted in the Electoral Commission investigating Vote Leave, its spending during the referendum campaign and whether it acted unlawfully during that campaign. As you know, this has led to Vote Leave being fined heavily and to a police investigation taking place, possibly with prosecutions and criminal convictions to follow. Yesterday a case was to be heard in the High Court whereby a group of British ex-pats living in Spain, known as the UK in EU Challenge Group, were to argue because of irregularities committed by the Leave campaign in the referendum the result should be overturned, as would happen in a Parliamentary or council election. Thus, Brexit should be halted. (I’m afraid I haven’t heard the outcome of this hearing yet). In another crowd funded case, taken to Judicial Review in June this year, Elizabeth Webster argued Brexit was unconstitutional because the Government had not followed correct procedures in triggering Article 50. This case was quashed by Lord Justice Gross in the High Court for being political, not legal. In November 2018 the EU’s General Court dismissed a case brought by World War Two veteran, ninety seven year old Harry Shindler, together with twelve other ex-pats, who complained Brexit would deprive them of EU citizenship and that the decision last year by the EU Council of Member States to accept notification of UK withdrawal in March 2019 breached their rights because they had been denied a vote in the 2016 referendum as they had lived outside the UK for over fifteen years. The Court dismissed the application as inadmissible because the EU Council’s move to start Brexit negotiations with the UK did not, in itself, carry any definite consequences for their rights. The case is being appealed to the European Court of Justice. Another crowd funded case, again being supported by the Good Law Project, concerns a group of British nationals living in the Netherlands who are seeking to establish European citizenship under Article 20. They claim that because the Article states that European citizenship is different to Member State citizenship it follows that a Member State leaving the EU would not automatically result in the loss of EU citizenship. The District Court in Amsterdam ruled that the interpretation of Article 20 was unclear and referred the case to the European Court of Justice for an opinion. This was obviously a victory for the claimants. However, in June this year the Dutch Court of Appeal overturned the decision, stating that although it agreed with the lower court’s interpretation of Article 20 as being unclear and there should be a referral to the European Court of Justice, it was necessary to wait until Brexit negotiations were concluded before referral. So the case is on hold. The UK’s Supreme Court heard in July 2018 a claim by the UK Government challenging the Scottish Parliament’s Continuity Bill, which had been passed by that Parliament with support from all parties except the Tories. It was establishing which areas of EU legislation were being delegated to Scotland’s Government after Brexit and the UK Government declared it was inconsistent with the UK’s own EU Withdrawal Bill wherein the UK Government was taking over responsibility for laws the Scots felt were their jurisdiction under devolution. (This case has not been decided yet, even though it was heard five months ago). Plymouth City Council has become the first local authority to threaten the Government with legal action over Brexit as it is seeking to force the Government to “reveal the truth” (as it calls it) about the impact leaving the EU will have on Plymouth. The Council is invoking the Sustainable Communities Act to make sure the Government share what it knows about what Brexit means for the city, even if it is considered confidential. The Council has written to James Brokenshire, the Secretary of State for Housing, Communities and Local Government, invoking the Act and demanding “immediate receipt by Plymouth City Council of all Government Departmental information and analysis pertaining to the impacts upon Plymouth’s communities and businesses of the UK’s withdrawal from the EU, including any information deemed by the Government to be confidential.” Given the Government’s fixation with secrecy surrounding the outcome of any form of Brexit I wish them luck!! Now this week has been momentous in political terms for the Government, with three defeats suffered by May in the House of Commons, the row over the Attorney General’s legal advice and the contempt motion. What has not been widely reported in the press and media is the equally momentous proposal of the Advocate General to the European Court of Justice that the UK can rescind Article 50 unilaterally and remain part of the EU. It is only his recommendation to the full court at this stage and it can be ignored, but 80% of Advocate General’s proposals are normally accepted by the European Court of Justice, so it looks positive. An article in yesterday’s Guardian newspaper by John Kerr, who when he was a UK diplomat to the EU some years ago actually drafted Article 50, agrees strongly with the Advocate General’s opinion. This case, again supported by the Good Law Project, was taken to the Court of Session in Edinburgh in September this year by a cross party group of politicians, led by the Scottish National Party and included Labour, Liberal Democrats and Greens from the Scottish and European Parliaments. It was subsequently supported by a number of Opposition MPs from Westminster. It was referred to the European Court of Justice last month by Lord Carloway, Scotland’s top judge, after the UK Government attempted to get the Supreme Court in London to hear an appeal. This was an attempt to delay the decision on the issue until after next week’s vote on May’s Brexit agreement with the EU. The Government argued at the European Court of Justice that the case is inadmissible, given it is hypothetical and merely theoretical, as the Government does not intend to revoke Article 50. (This is clearly a disingenuous and pathetic response, ignoring the details of the case). The EU itself, significantly using an argument being repeated time and again by the UK Government, has maintained that all other 27 EU Member States had to agree with revocation if the UK requested it. Basing his opinion on the Vienna Convention on the Law of Treaties the Advocate General has decided as long as it follows its own constitutional procedures, (for example, via an Act of Parliament, or whichever other process is admissible in UK law), the UK can indeed rescind Article 50 unilaterally, as long as it does so by the date of leaving the EU. He argues that the withdrawal from an international treaty is, by definition, a unilateral act of a State party and a manifestation of its sovereignty. Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision. He also argues that concluding an agreement is not a prerequisite for the withdrawal to be completed. Ironically then, the Advocate General says it would be against the UK’s sovereignty if it could not revoke Article 50 unilaterally, when Brexiteers here argue it is the European Court of Justice itself which undermines our very sovereignty!! This is a momentous judgement and will have enormous implications for the Brexit debate in the UK in the immediate future, especially as the full decision of the European Court of Justice is to be announced on Monday next week, the day before the House of Commons is due to vote on May’s hotly disputed Brexit agreement. All of these latest legal developments in Europe are connected with the recent political dramas in the UK. Indeed, they help explain much of it. The UK Government was obviously aware of the Advocate General’s announcement on Wednesday before it was made public and it completely undermines May’s argument that there is only one choice next week – her withdrawal agreement or a damaging No Deal Brexit. So we have seen the Attorney General offering the Cabinet advice on May’s deal, the Government refusing to publish it in response to all Party requests, then not opposing Labour’s Humble Address so as to avoid defeat, finally ignoring the decision of the Commons that the advice should be published. It all ended with the Government being found to be in contempt of the House of Commons and we all witnessed the wholly theatrical act of the Attorney General Geoffrey Cox, playing as if he were Rumpole of the Bailey, filling the House with his booming baritone voice, thumping the despatch box and playing to the jury, maybe forgetting he wasn’t actually in his other job as a barrister but was trying to convince fellow MPs of the case for not disclosing to them the advice he had already given to the Cabinet. His ruse did not work at all in diverting attention away from what he actually said and once the vote was taken and the Government was forced to disclose his advice it was clear why they had tried so hard to keep it secret. You have probably not seen either the actual advice Cox gave to the Cabinet or the summary he presented to MPs in its place. Quite remarkably the original advice was six pages long and the summary was fifty two pages! The first time in history a summary has been almost nine times the length of the document it was supposedly meant to precis!!! The advice was concerned mainly with the backstop in the agreement, triggered if the UK and the EU fail to reach a free trade agreement delivering a soft border between Northern Ireland and the Republic by the end of the transition period. Cox was emphatic in his original letter to Cabinet that this would mean Great Britain would effectively become a third country in respect of not just the EU but Northern Ireland as well and that such arrangements “shall apply unless and until they are superseded”; then only with the agreement of the EU. He made clear that rather than being a temporary arrangement Northern Ireland would remain in the customs union with the EU permanently if no free trade agreement was reached, the exact opposite of what May had promised the Democratic Unionist Party and Parliament. So his act on Monday was a smokescreen by the Attorney General to divert attention from the language he used in the original six page advice. It was much blunter than in the fifty two page summary given to MPs, with many of the original words in the first document missing in the second that Parliament was shown. Arguments about the disgrace of Labour using the arcane procedure of the Humble Address to force the Government to disclose the Attorney General’s private advice – breaching client/lawyer confidentiality and also threatening national security – were shown to be completely bogus. This was because the Government feared, quite correctly as it turned out, that as soon as the DUP became aware of what the agreement really meant they would desert the Government, maybe for good. Also, Tory Brexiteers would be furious and the deal would have no chance of getting through the Commons. This explains why with the passing of Dominic Grieve’s amendment on Monday evening ensuring if May’s deal is defeated next week then Parliament must consider other options rather than a no deal, the Article 50 decision of the European Court of Justice is clear and so very crucial. All options, including a second referendum or even cancelling Brexit if Parliament decides to do so, are now available. No longer can anyone believe it is just May’s deal or a no deal; everything is on the table. So challenging Brexit in the courts has so far been as effective, maybe more so, than challenging it in Parliament and, not for the first time, the European Court of Justice has come to our rescue!! Postcript – December 17th 2018. In the week since I spoke to ERIS about the legal challenges surrounding Brexit events moved so fast it was difficult to keep up with them. The good news for the Government was that on 10th December the High Court denied permission for a substantive hearing in the case brought by the UK in EU Challenge Group that the result of the 2016 referendum should be overturned due to irregularities and law breaking by the Leave campaign. The UK in EU Challenge legal team are reviewing the judgement and considering an appeal. More good news for the Government came in the ruling of the Supreme Court that the Scottish Continuity Bill is inconsistent with the UK’s EU Withdrawal Act in a number of its clauses. As a result of this decision parties in the Scottish Parliament are holding urgent discussions on whether to amend the offending clauses so that the Continuity Bill can become law and there can be agreement between the two Governments over how devolved matters are divided up after Brexit. These two decisions were totally overshadowed by Theresa May’s action on 10th December in postponing the House of Commons vote on her Brexit agreement scheduled for the very next day. The subsequent major row in Parliament, her facing and winning a vote of confidence in her leadership of the Conservative Party, (with her standing damaged in the process), and then hastening off to Europe on a futile and unsuccessful attempt to get the backstop renegotiated, all added to the feeling that the Prime Minister and her Government had lost control of Brexit. It became crystal clear that her deal is doomed and awaits an overwhelming defeat in the House of Commons whenever the vote on it takes place. During all of this the European Court of Justice announced it agreed with the opinion of the Advocate General that the UK could indeed unilaterally withdraw the Article 50 notice and remain in the EU if it so wished. So there was emphatic confirmation that regardless of what May has been stating ad nauseum for weeks on end that there is only one choice facing Parliament – her deal or a no deal Brexit – everyone can now see that for the lie it is. Unsurprisingly, as the week progressed calls for a rethink, for Parliament to consider all the possible options, even for another referendum or for the Government itself to revoke or delay Article 50, have gathered support across the House and the country. Clearly, though some have been successful and others have failed, legal challenges have helped the Remain cause and it is now for politicians, especially in the Labour Party, to take the initiative before time runs out. They can prevent the UK from leaving the EU. If they do not accept this challenge now and the UK leaves the EU they will pay a high price when voters finally experience the catastrophic results of Brexit. Rob Martin. 17th December 2018