Asking the wrong question

The Divisional Court’s judgment against the Government in R (Miller) v Secretary of State for Leaving the European Union [2016] EWHC 2768 (Admin) is being pored over as I type, but it seems to me that the Government’s defeat came out of a failure to make correct submissions.

It was common ground between the Crown and the claimants that the Article 50 notification would inevitably result in alterations to rights and obligations in UK law (paragraphs 10 and 11). This leads inexorably and inescapably to the conclusion, founded on the Case of Proclamations (1610) Co. Rep. 74, that the Crown (i.e. the Government) cannot make the Article 50 notification without the consent of Parliament expressed through an Act of Parliament. The Crown’s submission that Parliament had intended that the Crown be able to make alter those rights and obligations was rejected, probably correctly:

para-94

But this outcome was only inevitable if the Crown conceded that the Article 50 notification does indeed alter rights and obligations in domestic law – which, although it appears to be the view of the court, is not really argued over at all. This is not necessarily the case.

On an orthodox reading of the relationship between the domestic legal jurisdiction and the international legal jurisdiction, the British courts deem themselves unable to address international legal questions. This is a simplification but it will serve for the time being.

The court in Miller took the EU rights in domestic law that British citizens enjoy to rest upon membership of the European Union. It seems to me that this is not quite correct. This is true of the rights in EU and foreign law that British citizens enjoy. In domestic law, however, those rights in the domestic sphere flow entirely from the European Communities Act 1972, which confirms the principle that EU legislation is directly effective in the UK – and which would not do so without the European Communities Act. This is admitted by the court at paragraph 41 and 42 as a direct consequence of the fact that the Crown could not alter domestic law on its own:

para 41-42.PNG

Accordingly it is possible to imagine the following legal situation. The Crown activates the Article 50 notification and Britain departs from the European Union two years later. However, Parliament refuses to repeal the European Communities Act 1972. This would mean that UK citizens are still subject to the rights and obligations incurred in domestic law as a matter of EU membership, but cannot enjoy the rights and obligations incurred abroad (such as freedom of movement) as those are a matter for foreign and European courts. The differences between these rights are discussed at paragraphs 57 to 61.

This seems to me to be the critical failure of the Government’s case. Instead of admitting the losing ground that the Article 50 notification would have domestic legal effects, it ought to have denied this and argued for a strict division of the domestic and international orders, asserting that Article 50 would have no domestic legal impact whatsoever. It then should have advanced the argument that Parliament intended the Crown to have the power to so alter domestic law as a second ground of argument, if the first was lost. As it was, they conceded the only ground they might conceivably have won on, and thus doomed the Crown’s case.

I am not sure why this has happened, as it seems fairly obvious. I suspect I have gotten something quite wrong – if anyone can help me out please inform me.

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Right of refusal: Ashers in the Court of Appeal

The Northern Ireland Court of Appeal judgment in the Lee v Ashers case is out today. It corrects some rather glaring errors in the initial County Court judgment and raises rather intriguing questions about how discrimination law is to develop in the future. At issue here, really, is not free speech but what is termed associative discrimination in the case law – in other words, were Ashers in effect discriminating against gay people by not baking a cake which would carry a slogan in support of same-sex marriage?

As the judges note at paragraph 55, the leading judgment here is Lady Hale’s in Bull v Hall [2013] UKSC 73, where she quotes Advocate General Sharpston in the EU case of Bressol [2010] 3 CMLR 559:

“I take there to be direct discrimination when the category of those receiving a certain advantage and the category of those suffering a correlative disadvantage coincide exactly with the respective categories of persons distinguished only by applying a prohibited classification.”

What this means is that, in law, even if one doesn’t discriminate against (for instance) gay people explicitly, if the action you take only impacts gay people then that is still direct discrimination and ipso facto unlawful. This is clearly right – for instance, if people who have purchased sanitary products for personal use are barred from doing something, that is directly discriminatory against women even if one doesn’t expressly refuse to serve women.

The judge at the County Court got rather muddled in her judgment. She held that refusing to print a cake saying “Support Gay Marriage” was a case of direct discrimination because support for same-sex marriage was “indissociable from sexual orientation” – in layman’s terms, she was arguing that only gays and lesbians support same-sex marriage. “That was clearly wrong,” said Morgan LCJ rather flatly in paragraph 24 of today’s appeal judgment.

But the Court of Appeal did something much more ingenious. It looked, not at the cake or even the slogan as the benefit denied to Gareth Lee, the claimant, but at the benefit that accrued from the slogan (i.e. “Support Gay Marriage”). The reasoning of the Court at paragraph 58 seems to be that since only LGB people would benefit from the potential introduction of same-sex marriage in Northern Ireland, then refusing to print a message in support of that counts as directly discriminating against a protected group (and nobody else).

Morgan LCJ doesn’t go into great detail about what constitutes a benefit for these purposes. Courts are unsentimental places; it makes some sense that the Court of Appeal would not consider whether the emotional benefits to heterosexual friends and family of LGB people who might be able to marry would count as a benefit to people other than a protected class. But it’s worth working out what this might mean.

For example, a cake which carried the message “Support Affirmative Action” would most likely be protected in the same way; after all, only BME people will benefit (at least legally and financially) from quotas or positive discrimination. Likewise, a cake exhorting the eater to “Stand Up For the Gender Recognition Act” can only provide a legal and financial benefit to trans people, another protected class under the Equality Act. However, a message such as “Abortion Rights Now” might not, because it is not just women who might benefit from women being able to control their number of offspring. The distinction is not an easy one to draw, but it does appear to be the only (rather vague) principle which comes out of the case.

Had I been the judge here, I suspect I would have ignored the sexual orientation discrimination point and constrained the operation of the case to the bar on political discrimination. It is worth noting that political discrimination is not illegal in England, Scotland or Wales – it is illegal in Northern Ireland to try to stamp out sectarianism (i.e. so that nationalists cannot deny services to unionists and vice versa). On these grounds, as District Judge Brownlie held at paragraph 66 of her judgment in the County Court, this would have been a straightforward case of political and religious discrimination. This angle was avoided by the Court of Appeal, as it isn’t necessary to reach a finding, but I think it makes more sense and requires fewer logical leaps than the above. It is worth noting that in Northern Ireland, at least, Ashers would probably have to bake the aforementioned “Abortion Rights Now” cake.

This points to an interesting conclusion to be drawn from this case. The Court dismissed the operation of various defences to discrimination proceedings, which will undoubtedly be picked over by those more expert than me in these matters. At one point, Morgan LCJ said (para. 67) rather memorably that “the fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.”

This seems a statement which will be hard to generalise past the instance of a bakery, but Morgan LCJ was making an important point. At para. 100 he noted that the “answer” to anti-discrimination legislation which hurts a business or offends certain beliefs is “for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service. … In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflect their own political or religious belief …”

If, as seems likely, the implication from Ashers is that certain political statements are protected under discrimination law since their benefits would only accrue to a protected class, it follows that political opponents of those statements will have to issue a general prohibition on political statements. Morgan LCJ drew the comparison, at para. 47, to a printers’ firm providing election posters. It seems likely that a printer could refuse to print all political statements, but would not be permitted to refuse to print only statements on behalf of a same-sex marriage advocacy group or (to take my example) a campaign against the so-called ‘spousal veto’ in the Gender Recognition Act. In effect, the essence of the judgment is to make the publishing of certain political opinions compulsory by everyone who wishes to publish any political opinions whatsoever. This seems a somewhat adventurous interpretation of equality law, but it makes more sense than the messy first instance judgment.

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Common sampling policy

I have the Wikipedia page which collates polling data on the EU referendum bookmarked, as all nerds do, and I was taking my daily cursory look at it this morning when something struck me about it. I fed the data into Excel to check I wasn’t overinterpreting, and there it was again.

The following graph shows sample size (on the X axis) plotted against Remain’s lead in the polls (on the Y axis).

graph 1

In general, the smaller the sample size, the larger the Remain lead is. This is largely because of the telephone polls: ORB’s phone polls always have a sample size of 800 exactly, and all the sub-1,000 sample polls are conducted by phone.

What to make of this? Here’s another chart: this time, assessing the the general election polls and the Conservative lead:

graph 2

It’s perhaps a little hard to make out, but if I’m not mistaken, the general election polls don’t show such a sharp disparity. Small sample sizes show exaggerated leads in one direction or another, but there’s almost as many figures below the X axis as above it. At the general election, the polls all clustered around a tie, which turned out to be very wrong indeed. Contrast that to the EU referendum polls, where there’s a much more marked profusion of big Remain leads in the little polls and a much more close picture in the big ones.

I’d hazard a guess that the bigger sample sizes are probably more accurate, but that depends on the polling companies having sorted out their methodologies. As it is, we’re flying blind.

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Some thoughts on status quo bias

Peter Kellner observed in the New Statesman yesterday that the last few referendums in the UK have all seen a late shift to the status quo, with the somewhat sui generis exception of the 1997 Scottish devolution referendum. He concludes from this assessment that history favours Remain this month, arguing that six of the seven referendums he discusses show support for the status quo.

Mr Kellner’s article has superficial appeal, but he’s guilty of leaving out almost half of the eleven referendums which have been held in the UK since 1975, which might undermine his thesis somewhat. In the below table I have listed all the referendums in the UK since 1975 (deliberately excluding the 1973 Northern Ireland border poll, which was boycotted by the nationalist community); the rows in red were excluded from Mr Kellner’s article.

table

*The 1979 Scottish devolution referendum resulted in a narrow (51.6-48.3) win for the pro-devolution side, but turnout failed to reach the 40% threshold imposed by Parliament in order for the referendum to have effect.
†The 1997 Scottish devolution referendum was made up of two questions, the first on the establishment of a Scottish Assembly and the second on whether it should have tax-varying powers. Both proposals passed.

By my reckoning, far from the status quo being the dominant response of the British electorates to a referendum question, it is actually slightly less likely than a vote for change – five questions asked were answered with the status quo response, while seven were endorsements of the proposed reform. Even excluding the 1979 Scottish referendum because of its turnout threshold and the 1998 referendum on the Good Friday Agreement because of its unique context brings us to an even total of five for five, with the status quo only taking a narrow lead if the 1997 Scotland referendum is collapsed into one. Mr Kellner has – perhaps deliberately – massaged his figures to portray votes in favour of change as significantly less common than they are.

Even his rather specious argument that the changes which succeed are those which endorse a ‘national consensus’  has virtually no value whatsoever. Perhaps the Scottish Assembly (as it then was) was indeed established as part of a national consensus. The same could not be said of the Welsh assembly powers referendum in 2011, nor even the 1979 referendum in Scotland which he explains away due to the insertion of a wrecking amendment by a Labour MP. It should be noted further that those two referendums exhibited the narrow margins which seem increasingly likely in the referendum this month, which should give both sides this time pause.

Ultimately, talk about bias towards the status quo misses something which may be quite important. In almost all previous referendums, the status quo is something which has existed for a very long time – since time immemorial, even. The Union between Scotland and England dates to 1707, and the Union of Crowns is a century older than that. Parliament has been sovereign in the North East, London, Northern Ireland, Wales and Scotland since the concept was first described. The first-past-the-post system has been the process for all British general elections since the expansion of the franchise, and predates even that for a much more limited electorate.

The exception, of course, is the 1975 European Communities referendum, where a relatively new ‘status quo’ – more or less a government policy – was endorsed merely two years after it was enacted. In 2016, the idea that the EU benefits from status quo bias and incumbency is dependent upon the idea that the EU has weaved into national consciousness as much as first-past-the-post, the sovereign Parliament or the very Unitedness of the Kingdom.

I’m not sure that’s so. Stronger In has been trying to run this sort of campaign, but it’s stuttering somewhat. My suspicion is that this is because the EU is almost a victim of its own success: so effective at inveigling itself into national economies that nobody even notices it’s there any more. Even whinging about Europe in tabloid newspapers has a detached quality, a sense of newness and alienness – consider the Metric Martyrs case for an example of this in action. It seems that the pro-EU side, which planned to run a simple defence of the status quo with the expected 2-1 walloping, is having to make the case for the EU afresh, as if we were being asked to join it rather than remain in it. Whether this affects the result remains to be seen, but it seems implausible to suggest the British electorate is on autopilot this time around.

‡Sort of. See MacCormick v Lord Advocate [1953] SC 396.

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On a train bound for nowhere

I don’t often think about primary school. Well, it would be more accurate to say I can’t. I have scattered memories of those years – a game of tig here, a pair of broken glasses there – but nothing to dwell upon. At that age, the memory is like the broad, clumsy brush-strokes on the Van Gogh pastiches we made when we were seven: bright colours, vague impressions, little coherence.

I do remember one moment quite well. I was perhaps nine, and the school had decided to teach us something practical: in this instance, we were called upon to put together little boats capable of traversing a trough of water, using only balsa wood and elastic bands. My teacher found my response to the creative writing task I’d been working on before that amusing and gave me some extra time to finish it (some arch comedy I had ripped off from a video game). By the time I got my hands on the balsa wood I was well behind everyone else and had to work alone.

I fiddled and worked at it for days, but try as I might, I couldn’t get the propeller working. The fat chunk of wood I had tried to use for the purpose splashed about hopelessly, spraying my little blue polo shirt with ice-cold water. On the upside, it cooled me down a little bit, after the quiet, burning, humiliated tears had receded. So I gave up. On reflection, the boat had been badly designed from the start – too heavy at the front, too prone to weakness at the back. It would never have got to the finish line anyway.

Then I got home and watched Pokémon, I imagine. That was pretty much all I watched at that age. As I recall, Ash usually won against all the odds. It’s funny that the odds were never, never in his favour. Yet he always won. Isn’t that interesting?

 


 

Tristram Hunt’s article in the New Statesman on the European referendum, deriding Brexit as a “self-defeating dereliction of duty and history”, is an impressive piece of work. Its rousing defence of the EU as a unifying force for liberal democracy dovetails with his cool dismissal of Michael Gove’s purportedly Whiggish view of British history and Daniel Hannan’s slurping plutophilia. It is almost convincing. Yet an impressive piece of work is still a piece of work, so to speak, and Mr Hunt replaces Rhodesian Anglocentrism with Whiggism of his own.

Mr Hunt’s thesis, in essence, is that the EU is an institution of reform, of blunting the sharp edges of capitalism. He sets out his stall thus:

As a progressive, I want to remain within a supranational institution that has the capacity to help reform capitalism for the digital age. On issues such as tax justice, workers’ rights, climate change, environmental protection, international trade and poverty alleviation the EU plays a positive role.

Anticipating the objections, however, this statement of the obvious is immediately qualified by the following:

Yes, it is difficult for us liberals to defend its recent treatment of Greece, its inertia on the refugee crisis, or its institutional lethargy towards proper democratic accountability. But social justice requires co-operation beyond our borders, and the fact remains that the only sustained period of peace in modern European history directly coincides with the EU’s creation.

This is the case in a nutshell, really. I have bolded the words ‘institutional lethargy’ above, because it is not that institutional lethargy is, as Mr Hunt implies, a bug in the EU’s system, a thorn in its side, a fly in its ointment. Far from being something that prevents the system from solving the refugee crisis or sorting out the vertiginous scale of European debt, institutional lethargy is the EU’s system.

Why? In 1945, Europe lay in ruins, utterly exhausted by the most savage conflict in human history. There was, however briefly, the opportunity for the occupying American forces west of Berlin to impose a new sovereign state on West Germany, France, Italy and the Benelux: the ‘United States of Europe’ coined by Churchill in his Zurich speech in 1946. This would be the state of the future, the one that through gradual, measured expansion could lead the world towards progress, sweeping away the nationalisms of the past as one more ideology that had been utterly defeated along with Nazism and fascism. It would manifest a destiny for humanity itself.

But this was bottled, of course, as these things usually are. Instead we got gradualism: first the Coal and Steel Community, with its noxious air of strapping, 1950s industrialism; second the Economic Community, a gentle, unassumingly technocratic creature in the background of the Cold War; lastly the Union, our Union, Maastricht and Lisbon duetting the harmony that serenaded the end of history and the nuclear peace. With gradualism came intergovernmentalism, and with intergovernmentalism came a big, dripping, juicy platter of pork, farmed through the Common Agricultural Policy. Worse still came a regulatory environment which punished experimentation and stifled the development of economic systems to rival the Union’s unambitious own. All roads led to Rome – and it was those roads or the high road, buster.

Instead of a system which serves the people of Europe, we have a system which serves its governments. Every item of European policy is created through horse-trading between governments, in arduous negotiations that eventually reach a limping settlement for ministers to sell to their parties and their people: look at David Cameron’s pathetic renegotiation for an example of this in progress. Yet if we needed an example, Greece has been the butt of the EU’s institutional incompetence for years – not just in the ongoing failure to resolve its debt crisis, but the abject chaos unfolding on its islands as Europe scrambles to make up for the consequences of Germany’s unilateral (and democratically-endorsed) embrace of open borders. The German drum is the loudest beat on the Continent, but there aren’t many states who can keep up any more.

In a functional system, countries would be able to be flexible, play to their strengths, and operate in an air of competition and open dealing. Instead, far from creating a shining beacon of free trade and democracy, we have generated a system so laden with rules, processes and legal challenges that it replicates the deadlock of another federal government a mere ocean away. And just like that mighty republic, we work with filthy criminals to mitigate the impact of our own overextension. Rather than being the great peacekeeper on the Continent, the last few years have proved how wholly reliant on a NATO-enforced peace the EU is. Take away its air of tranquility – threaten it from the east or the south – and it proves incapable of even adapting its own system, let alone contributing to international stability. There was, of course, a precedent for this, but faced with the havoc erupting in the Mediterranean we have even less excuse.

 


 

Mr Hunt continues:

When even the United Kingdom itself faces an uncertain future, I believe we need to stand up and renew the ties that bind. To walk away from Europe in its latest hour of need would be an entirely self-defeating dereliction of duty and history; a betrayal of our traditional role as a force for peace, security and the proper balance of powers. Brexit is the politics of defeat and the philosophy of decline. We must resist those siren voices and lead both ourselves and the Continent towards a more open, liberal, democratic, freer, fairer and stronger future.

It would be nice if the European Union could be led to a more open, liberal, democratic, freer, fairer and stronger future. But it cannot be led at all. It is set up precisely to frustrate being led by anyone, because every state obeys their rational individual incentives to change nothing at all and preserve their own privileges. Like my boat, it’s too big, too heavy, and its propeller judders limply as the vessel floats with all the others, becalmed, somewhere in the Mediterranean.

If Europe became a sovereign state of the core six, then perhaps – perhaps – it could be rejoined. But the EU as it stands is just not good enough, and calls for a stronger European Parliament just delay the issue – and run up against the fact that the Council and Commission have no reason to give up their power. The longer the EU exists, the weaker Europe becomes, more and more vulnerable to Erdoğan’s thumbscrews, the long, dark Russian winter and the sheer entropy of its own economic ennui.

The boats of Europe lie rather low in the water, and time is running out. When confronted with the proof that great projects like the Eurozone (a Franco-German confection) and eastern expansion (Britain’s fault, mostly) are not working, the EU has no way to give up on those projects and try different ones like a nation-state can. Instead, it has to bet all the harder on a change in its fortunes: the gambler who, sure his losing streak will run out soon, divests himself of his wallet, then his car, then his house.

The odds are no longer good enough. Every hand’s a loser. It’s time, after forty years of gambling, to leave the table.

 


 

What we call the beginning is often the end

And to make an end is to make a beginning.

The end is where we start from.

-TS Eliot, Little Gidding (from Four Quartets)

 

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On us, and our not taking it

Janan Ganesh, the FT’s political columnist, was born in 1982 (probably). At 33 or 34, that makes him just young enough to count as a Millennial, if Strauss and Howe’s grand theory of eternal return is taken as read, or at least pretended to have read. Perhaps this is, in part, why Ganesh’s column on why Millennials don’t know they’re born has produced such a stir: a convert is always more influential than a mere priest.

Ganesh’s piece is, as always, beautifully written. He understands the economy of words better than any prominent political writer in the UK. And to give him his due he is, of course, right when he seizes the pulpit to denounce the eschatological heresy of looming intergenerational Armageddon:

The fracturing of public life along generational lines has felt imminent for some time. And it will continue to feel imminent. Generational politics will never take off because no normal person identifies with a collective as large and internally diverse as their age cohort. It is too tenuous a bond to spur concerted civic action.

Yet despite this bracing good sense, his argument – that Millennials should be grateful for our luck of having been born in (for instance) 1990 as opposed to 1960 due to the “dazzling consumer gains that come with technology and competition multiplied by the passage of time” – fails to convince. Ganesh supposes that these consumer gains are in some way a cosmic compensation for the relative abject asset poverty into which my generation has been born, but to do so misunderstands the nature of the injustice which has been done to us.

Ganesh’s argument would hold if generational injustice was necessary to lower crime rates, reduce the cost of flights and accelerate the development of the smartphone, the iPad and Skype. This might excuse the imbalance as a payment we (unwillingly) made for our living standards – but Ganesh never proves this, or even adduces any evidence to that effect. It is no good saying to someone whose house has been burnt down by arsonists to cheer up because it’s a sunny day outside: it was always going to be a sunny day, thank you, and I’d rather have lemonade on the front porch than rubble and a suntan.

Of course I (on balance) would rather be born in 1990 than 1960. I’m less likely to get beaten up or robbed; I’m less likely to die abroad; I have access to the sum of all human knowledge at my fingertips. But unless stagnant wages and low house prices were necessary for me to have these things (not, in fact, a ridiculous supposition given how capitalism and competition operated in the West), I’m more than entitled to be angry with my lot. So is my cohort. Until research can confirm this hypothesis, the last word should be Ganesh’s:

Beneath the pose, there is nothing there.

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The nEUclear option

A comrade for Leave argues that repeal of the European Communities (EC) Act 1972 instead of activation of Article 50 of the Lisbon Treaty is “not an option“, calling it “irresponsible”, “unthinkable”, “thoroughly un-British” and “a political and economic disaster”.

This is strong talk, and accurate too as far as it goes. There’s no doubt that an act as extreme as unilateral withdrawal from the EU outwith the provisions of the Treaty would be an internationally wrongful act earning us severe opprobrium and probably massive economic reprisals around the world. This is why it is not generally mentioned as the first resort for British disentanglement from Brussels. But it remains possible for the one reason Ben neglects to mention in his post.

The European Union rests on its processes and institutions making ongoing membership more attractive and (crucially, for democracies) less politically painful than reaping the potential benefits of flexibility outside is structures. Accordingly this requires the Member States to pressure each other not to give up on the project. It is comparable to unionisation: the many can only retain the benefits so long as individuals don’t break off and bargain on their own to undercut the others.

A unilateral British withdrawal, though painful in the short run, would remind other Member States that they retain their sovereignty, and accordingly the right in domestic law to quit the EU whenever they want. It operates, not as a thoughtful tool of public policy, but as a weapon, an earthshaker to disrupt the very foundations of the European project. In the aftermath of a British withdrawal, it seems likely that other countries with strongly Eurosceptic tendencies like Denmark and the Netherlands would start sabre-rattling over their own place in the EU, with government ministers perhaps issuing menacing innuendoes about leaving by fiat unless the EU gives them what they want. Doubtless the British government, sensing an opportunity, would be wooing these nations with promises of trade deals and alliance to counterbalance the ailing Union to the south.

It isn’t accurate to say that withdrawing without recourse to Article 50 is “not an option”. It is not a pleasant option, and it’s one we ought not to use without regard for the consequences. But it’s there like a hand grenade at a Mexican stand-off, and should be treated in the same way. The SALT treaties were only negotiated by accepting that the use of nuclear weapons was not just not unthinkable, but eminently thinkable. Only by doing so can we hope to avoid catastrophe.

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