A couple of interesting developments - one on the other side of the world and one here at home. Turns out that the UK's Parliament is still sovereign (who knew?). And I think Gareth Morgan should be given more praise than scorn for wanting to inject some thinking into New Zealand's political scene.

The decision by a British High Court bench of three judges that the UK's Conservative Government cannot unilaterally "Brexit" from the European Union, but instead must obtain Parliament's assent to doing so, has thrown a lot of cats amongst the pigeons. I rather suspect, however, that it will simply change the way in which what would have happened anyway happens. Theresa May has pinned her colours to the mast, and the Tories are stuck with her. And let's not forget that the heartland support for Brexit are the people that Labour needs to win back if it is ever to govern again. 

Reading through the actual decision, however, it comes across as a bit of no-brainer. The UK Executive (Government) took the UK into Europe using its "prerogative power" to make treaties with other countries. Parliament then passed legislation that incorporates a whole bunch of european law into UK domestic law - which would cease to have effect if and when the UK were to Brexit its way out of Europe. And because only the UK Parliament can change the UK's domestic law (as is set out in parliamentary enactments), this means that the UK Government cannot rely on its prerogative powers to "trigger Article 50" (i.e. Brexit the UK out of Europe). Parliament, as I occasionally have cause to remark, is sovereign and its laws (including a law deeming european law to have effect within the UK) cannot be displaced by anyone or anything but Parliament itself - so the decision to Brexit must come from it.

Of course, a lot of this hangs on the Court correctly finding that leaving Europe would automatically bring about a change to the UK's domestic law - a conclusion that involves some messy interpretation of the relationship between UK law and european law, which I don't really understand. But from a basic first principles basis, the outcome seems pretty unimpeachable. Indeed, parts of the judgment read like a primer for Laws 204: Public Law here at Otago - and I rather suspect those parts will figure heavily in next year's course materials.

What is more, little old New Zealand features in the Court's reasons:

First, the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers is the product of an especially strong constitutional tradition in the United Kingdom (and the democracies which follow that tradition - see for example the New Zealand decision in Fitzgerald v Muldoon [1976] 2 NZLR 615 at 622).

So go Chief Justice Wild! Respect paid from the other side of the globe!! And if anyone has a lazy afternoon or evening to spare and wants to read an incredibly well written and interesting account of that seminal case in NZ public law, may I fully recommend Justice Stephen Kos' Otago Law Review piece from 2014. It's a cracking good read.

Turning to matters closer to home (albeit not in Dunedin, so still relatively foreign), can I just stick up here for the concept of Gareth Morgan's just announced "The Opportunities Party"? I have no idea how successful this will be - I'll simply note that aside from Bob Jones' "New Zealand Party" (which was formed and operated in a very different political climate) such outsider parties do not have a strong track record in New Zealand. And I also have no idea whether Gareth Morgan as an individual will be any good at the practice of politics, or will instead turn out to be a less creepy version of Colin Craig. 

However, what I do know is that Morgan has spent a lot of his money in recent years producing research and seeking to spark public debate on everything from the environment to the Treaty of Waitangi to rethinking tax and welfare policies. People may disagree with the conclusions reached, or have criticisms of the methodologies used, but the underlying motivation seems extremely laudable to me ... to move past gut-level ideological reflexes and status quo biases and instead look at what evidence tells us about alternatives. 

So given that there's been a fair bit of angsting of late about the emergence of "post truth politics" and the "death of expertise", anyone who is standing up and asserting that there is a place in our political discourse for informed policy and fact-based alternatives - especially someone who has put a lot of skin into that game before throwing his hat in the ring - ought to be applauded rather than ridiculed for his efforts. Whether that then means he deserves our votes remains, of course, to be determined.

Comments (28)

by Nick R on November 04, 2016
Nick R

The irony of Brexiteers howling in protest about the decision of a British court upholding British parliamentary sovereignty is perfect.  David Davis - the Minister for Brexit - said something about how it undermined the sovereignty of the voters.  I think that nice little old lady at Windsor who gave him his warrant might have something to say about that. In private, of course.

by Andrew Geddis on November 04, 2016
Andrew Geddis

Yep - the pro-Brexit press is quite something to behold. "Enemies of the People", indeed!

by Charlie on November 06, 2016
Charlie

The one and only time I voted in the UK was in the referendum to join the EEC as it was then called - just a trading bloc.

Who knew it would slowly morph into a bureaucratic dictatorship run from Brussels?

It seemed fitting that the British should also use a referendum to get out of the EU - but the result wasn't to the liking of the apparatchiks so they get another go. 

by Andrew Geddis on November 06, 2016
Andrew Geddis

It seemed fitting that the British should also use a referendum to get out of the EU - but the result wasn't to the liking of the apparatchiks so they get another go. 

That's simply not what happened here. 

Back in 1973, the UK Government joined the (as it was then) EEC. But it only did so after the UK Parliament had agreed to legislation that allowing european law to have effect in the UK. So while the Government signed the treaty to join, it was Parliament that agreed to give legal effect to the treaty (and subsequent european legal developments) at a domestic level.

In 1975, a new Labour Govt asked the UK people whether they wanted to stay in the EEC. A majority agreed they did want to stay, so no problem arose. 

Then in 2016 the UK people were again asked if they wanted to stay in the (now) EU. A majority said "no". But, two things about this result:

(1) That referendum was indicative only - just like the referenda we have in NZ under our Citizens Initiated Referendum Act 1993. If the result was meant to take the UK straight out of the EU, then it needed to be like our 1993 referendum on which electoral system to use ... there needed to be a "European Communities Act Repeal Bill" passed through the Parliament with a commencement provision reading "this legislation shall have effect upon a majority vote in favour of leaving the EU".  

(2) That's because the UK's place in Europe is underpinned by parliamentary legislation that gives domestic effect to european law. And Parliament decides what the laws of the UK will be, not the UK executive branch or the UK people directly. That's how the UK has been run since 1688 ... it's not a novel claim or a plot by "the apparatchiks" to undo a referendum vote that they don't like. 

So anyone who is saying "the referendum alone ought to empower the UK Government to take the UK out of Europe without anything more happening" is arguing for a constitutional revolution - they are saying that a referendum result that was not intended to be, and specifically was said at the time not to be legally binding ought to supplant some 328 years of fundamental constitutional principle (that the UK Parliament is sovereign and that only it may amend or invalidate its own statutes). To claim that the court was somehow to blame for refusing to take that revolutionary line strikes me as ... odd.

And for anyone who thinks that I'm just another "apparatchik" happy that "the people" have been stymied, read this defence of the court's ruling by a pro-Brexiter 

by Alan Johnstone on November 06, 2016
Alan Johnstone

Not a lawyer, but doesn't a simple repeal of the 1972 european communities act remove the legal authority for european law whilst the actual withdrawal from the EU being done using delegated royal prerogative?

Isn't this a simple reversal of the steps carried out when joining ? I'm unclear what else parliament needs to do?

by Andrew Geddis on November 07, 2016
Andrew Geddis

@Alan,

Yes - that would work. However, if you repeal the European Communities Act 1972, then you take away the basis for some 44 years of subsequent legal developments that have widely infiltrated the UK's domestic law. In some areas, UK law is european law. So take that away and you leave the UK with big gaps in its law on things from agriculture to the environment to external trade.

By contrast, triggering Article 50 gave the Government up to 2 years to sort out those matters before the UK actually left the EU (but, by the same token, it would have to leave the EU once that trigger is pulled, thereby effecting an (eventual) change in the UK's laws without Parliament's authorisation). 

So what Parliament would really have to do is replace the European Communities Act with legislation that says "the old European Communities Act is repealed (so the Government now can trigger Article 50), but these various bits of european law remain the law of the UK because we now deem them to be our law". At least, I think that's what would need to happen - I note my qualification in my original post about the "relationship between UK law and european law, which I don't really understand."

Of course, there is a simpler response, which is for Parliament to pass legislation that authorises the Government to trigger Article 50. It could then do so as any changes this makes to the UK's domestic law has now been authorised by Parliament.

by Murray Grimwood on November 07, 2016
Murray Grimwood

I don't always warm to Morgan, but he initiates more dispassionate research in this country than anyone. I include academia in 'anyone' because specialisation is capable of leading us over a cliff, societally. If academia doesn't include a weighted melding - the best seems to be 'systems analysis' - then you end up with nothing more than a collection of touts trying to put bums on short-term seats. Challenge them - and I have challenged two such, here - and they apparently shut you down (then avoid the topic) or just ignore.

Same goes for existing political Parties - they see themselves as 'winners' in the existing system and are therefore loathe to examine the fact that the system is simply unsustainable.

The media are also choosing not to 'go there' - for the same reason as academia probably, indeed for the same reason as business and for all who are not on the very bottom rung - their income and/or status are tied to the existing system. Advertising is a necessity in a system needing to grow the (unsustainable) consumption of planetary pieces, and without advertising the current media model is dead.

Morgan would more likely commission someone to research the problem, tie Climate Change in with exponential growth, resource draw-down, degradation, population - and publish the resultant conclusion.Even if it was not to his liking. We need such an attitude - note, I didn't say 'such a person', this is an endemic problem - and we need it yesterday.

If he displaces Labour, well, Labour has become irrelevant through chosen inertia and deserves the treatment. National represents the unsustainable, the Greens have faltered and time is running out.

Go Gareth. We've nothing to lose.

by mikesh on November 07, 2016
mikesh

I'm no a lawyer but, as I understand matters, a court, in interpreting a statute, looks at  a parliament's intention(s) in enacting that statute. I would think therefore that a court, once Britain has exited the EU, would be reluctant to enforce a statutory provision enacted on the assumption that Britain would become part of the EEC.

by Rich on November 07, 2016
Rich

there is a simpler response, which is for Parliament to pass legislation that authorises the Government to trigger Article 50

The (political, not legal) issue there is that doing that would be giving May a blank cheque to agree any kind of deal with the EU.

The default provision of the EU is that they want an irrevocable notice of withdrawal, followed by a negotiation that will be effectively guillotined when the two years expire.
If no deal is concluded, the UK will be in a uniquely bad position among developed economies in having no framework to trade in goods and services, and an economy based on being an entrepot to the EU.

The British were sold on a bogus position that the EU would agree to free market access with no free movement of labour or common regulatory standards - this has been granted to no other country.

MPs are not ciphers or delegates - they are entitled to decide their vote based on the national interest. On this basis, it is reasonable for them to refuse consent to enabling legislation until the government has negotiated, at least on an indicative basis, market access to the EU.


by Andrew Geddis on November 07, 2016
Andrew Geddis

@mikesh,

I would think therefore that a court, once Britain has exited the EU, would be reluctant to enforce a statutory provision enacted on the assumption that Britain would become part of the EEC.

But the point in question is, given that this statute exists and Parliament's attendant intent that european law ought to apply in the UK, who can decide that the UK won't be a part of the EU (meaning that EU law will no longer apply in the UK)? 

@Rich,

The (political, not legal) issue there is that doing that would be giving May a blank cheque to agree any kind of deal with the EU.

Agreed! The problem for May and her Government is entirely political, not legal. She has to let MPs potentially fetter her ability to deal with the EU, which she doesn't want to do. 

by Alan Johnstone on November 07, 2016
Alan Johnstone

But given there can be no negotiation prior to article 50 notification being submitted, surely it's impossible for May to take any position or deal to parliament beforehand.

She can say what she wants, but there is no certainty she'll get it once talks start.  

Politically she needs to go forward soon, the 52% of voters will not wait much longer

by Rich on November 07, 2016
Rich

What will they do? Riot? Strike? Write strident letters in purple ink to the Queen?
We're talking the British middle classes here - the last case is most likely, and I think the government might weather that.

by mikesh on November 07, 2016
mikesh

"who can decide that the UK won't be part of the EU"

The government presumably (or the crown), supported by the referendum result, would do so by making a declaration to that effect. Perhaps we are so bogged down in  "the letter of the law" that we can' t see the wood for the tree

 The courts would interpret the law on the basis that the application of EU law would be inconsistent with Britain's non membership.

 

 

by Andrew Geddis on November 07, 2016
Andrew Geddis

@Alan,

The way it'll play out is this:

May (to Parliament): "Please authorise me to trigger Article 50."

Parliament (to May): "Why? What will happen if we do? What do you plan to negotiate with the EU once that trigger is pulled?"

May (to Parliament): "I'm not going to tell you - you'll only see what I am going to ask for (and what I can get) once those negotiations are over."

Parliament (to May): "...?"

And this is what we don't really know what will happen. Will they do as she asks, or will they say "no - unless you give us your Brexit blueprint for negotiation and so satisfy us that you've got at least a pathway to an acceptable outcome, you don't get to trigger article 50". This is a purely political question, and while I think the latter is more likely, I guess we just don't know!

@mikesh,

What you derisively call "the letter of the law" is the foundational constitutional principle that has governed the UK for over 380 years - well before the EU could even have been conceived of. Wishing that this were not so in order to get a particular outcome (the UK leaving the EU) does not make it not so.

by mikesh on November 07, 2016
mikesh

If circumstances change in some relevant way that makes observation of the letter of the law silly, then presumably it should not observed.

Incidently I was not using the term derisively. I was simply observing that the letter of law might in this case be a distraction.

by Andrew Geddis on November 07, 2016
Andrew Geddis

@mikesh,

If courts do not apply "the letter of the law", what exactly do they do? And anyway, what exactly is so "silly" about saying that the UK Parliament must authorise the UK Government to trigger article 50? 

by Alan Johnstone on November 07, 2016
Alan Johnstone

@ Andrew, I think option 1 is much more likely and she'll get her vote through purely on base political self interest. The alternative is an election that no one really wants.

Labour MPs 17% behind in the polls aren't going to reject her on what is a defacto confidence vote and go to the country under Corbyn.

Especially those representing areas in the north of england that voted leave by large margins.

by Rich on November 07, 2016
Rich

"defacto confidence vote"

No such thing any more. The Fixed Term Parliaments Act means that a confidence vote has to be explicit and separate from a vote on legislation. 

What May will do if she needs to hold an election will be interesting. She could force an election with a 2/3 majority (would require Labour votes), lose a motion of no-confidence (needs Labour votes or for her own MPs to espouse non-confidence in their own government) or repeal a measure introduced five years ago by her own party.


by mikesh on November 07, 2016
mikesh

@Andrew

 I have never heard of "article 50" so how  could I say that there is anything silly about Parliament activating it? What I said, and stand by this, is that what the government needs to do is to declare itself out of the EU, and put in place the necessary administrative changes. They could then, at their leisure, enact any legislative changes that may be necessary. The courts, in interpreting a statute, should consider it's appropriateness given any change in circumstances.

I suspect that, though I'm only guessing, that there are some who are using "legislative complications" as a means of avoiding giving effect to Brexit.

by Rich on November 07, 2016
Rich

@mikesh: maybe you should try and understand the judgement, the European Communities Act and the EU Treaty (in particular Article 50 of it) before commenting.

In fact, it would be a damn good thing if the UK electorate had to pass an essay and short answer paper on that before voting.

by mikesh on November 07, 2016
mikesh

@Rich

I haven't read the actual decision, just Andrew's précis above. There, Andrew points out that if Britain Brexits a whole bunch of EU law incorporated into UK law would cease to have effect. But if this EU law would have no effect why should it stop Britain exiting? Brexit is simply an administrative decision and they can tidy up the legislation independently of that decision. Later if they so choose.

 

by Andrew Geddis on November 07, 2016
Andrew Geddis

@mikesh,

Brexit is simply an administrative decision and they can tidy up the legislation independently of that decision. Later if they so choose.

You are fundamentally misunderstanding the Court's ruling. Triggering article 50 is not just "an administrative decision". It inevitably will cause european law to cease to have effect in the UK, which in turn will amend the UK's laws because Parliament has said that european law is to have domestic legal effect in the UK. And the executive cannot remove legal rights/change the laws that Parliament says are in force without Parliament's consent. That's because Parliament is the ultimate lawmaker, not the Government.

That's as much as I can say to you on this. If you are still confused, try reading this. Or this.

by Andrew Geddis on November 07, 2016
Andrew Geddis

@ Alan,

@ Andrew, I think option 1 is much more likely and she'll get her vote through purely on base political self interest.

I actually concur! I messed up my "latter" with my "former"!! 

Sorry.

by mikesh on November 07, 2016
mikesh

I am not confused.  I can certainly see what you are driving at; but unless there is a statute on the books which says "Thou shalt not leave the EU" then it appears to me that they can "brexit". It may create legal difficulties - it may even create a constitutional crisis -  But I'm pretty sure they could leave.

by mikesh on November 07, 2016
mikesh

"And the executive cannot remove legal rights/change the laws that Parliament says are in force without Parliament's consent"

The executive cannot change the laws, but the "rights" in question are not natural rights like the right to life, liberty, and the pursuit of happiness, which the American constitution says are "held to be self evident". These are rights which depend for their existence on Britain's membership of the EU; and once Britain leaves, and this is what the people voted for in the referendum, they will simply lapse.

by Murray Grimwood on November 08, 2016
Murray Grimwood

It appears from the above, that we are studiously going to avoid talking about why they voted Brexit, what that portends for the future globally, and why that makes Morgan a possibly important part of ours.

 

by mikesh on December 21, 2016
mikesh

Mrs May has said, in a recent speech to the EU, that she will activate article 50, despite the court's comments. Presumably, in that event, the House of Commons will have to repeal the the legislation in question, or face a constitutional crisis which would probably be resolved in favour of the Crown.

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