INTRODUCTION

Welcome to the Reach Cambridge Leader Program in Law. Below are some useful resources and an overview of material that will be relevant to the first three class on Tuesday 25 July to Thursday 27 July. You may wish to look at this material ahead of their class to familiarise yourself with the issues to be discussed in class. However, this is not required. We will be going through the material on the basis you haven’t read it, but if you wish to gain a deeper understanding of the contend do read ahead as it will allow you to have a deeper understanding and contribute in discussion.

DAY 1: INTRODUCTION ANDHOW LAWS ARE MADE (IN THE UK AND AROUDN THE WORLD): Tuesday 25 July 2017

Some Useful Resources on Government and lawmaking in the UK

  • Useful introductory information: UK Government website on how government works, and how Parliament works and Wikipedia article on separation of powers in the United Kingdom.
  • The (very short) Brexit Act itself - see what legislation actually looks like: European Union (Notification of Withdrawal) Act 2017
  • The Brexit Supreme Court - see what cases look like. It is not necessary to read the decision, we will be discussing the structure of nature of legal judgements(Miller).

Brexit Bill – A Case Study

The Brexit referendum, Supreme Court decision, passage of the Brexit Bill through Parliament and triggering of Article 50 of the Lisbon treaty by the UKdemonstrates the interaction between different actors in the political, Parliamentary and legal spheres on a matter of national and global significance. The role of the people, Parliament, executive and judiciary in making a law is shown at numerous points in the process. We can see the Parliamentary process in action, how the Supreme Court can become involved in assessing the legality of government legislation and how the roles of different parties (executive, legislature, judiciary) can be controversial in the media and in the court.

1. Background

The UK has always had a somewhat ambivalent relationship with the European Union. It initially turned down the opportunity to join the predecessors of the European Union, the European Coal and Steel Community (Treaty of Paris (1951)) and the European Economic Community (EEC) and the European Atomic Energy Community (Treaty of Rome 1957). Partly, this was due to a concern on the part of the UK that joining the EEC would damage the UK’s relationship with the Commonwealth. After Charles De Gaulle, the President of France had vetoed the UK’s applications to join the EEC twice, in 1963 and 1967, the UK Prime Minister Edward Heath finally signed the Treaty of Accession in January 1972.

2. Referendum – The involvement of the people

In 2015, David Cameron made an ‘in-out referendum’ a Conservative Party 2015 general election manifesto commitment, despite being in favour of the UK remaining in the EU.After winning the election, on 17th December 2015 the European Union Referendum Act 2015 was enacted, making legal provision for the holding of a non-binding referendum on the UK’s membership of the EU. The referendum was held on the question ‘should the UK remain a member of the EU or leave the EU?’ on June 23rd 2016. The result announced on June 24th 2016 was that a majority of voters had voted to leave the EU.

The most prominent narratives that dominated the referendum campaign, inevitably influenced the result, and which can be seen to influence Government policy since the referendum, are (non-exhaustively) as follows:

  1. ‘Taking back control’ from the EU and restoring sovereignty to the UK Parliament;
  2. Greater accountability and democratic involvement in institutions of government, something which could only be achieved by leaving the EU;
  3. Using monetary contributions that currently are paid to the EU for more worthwhile domestic projects (for example, the pledge by the Leave Campaign to spend £350million on the NHS); and
  4. Curbing immigration.

Should the UK remain a member of the EU or leave the EU? / No. of votes / % of votes
Leave / 17,410,742 votes / 51.9%
Remain / 16,141,241 votes / 48.1%

3. The Judiciary - A legal challenge to the process of leaving the EU

In June 2016, Gina Miller spearheaded a legal action to challenge the Government’s view that it had the authority to invoke Article 50 of the Lisbon Treaty. The Lisbon Treaty is an agreement entered into by EU countries including the UK.

The relevant text of the Article 50 treaty provides:

Article 50

1. Any Member State may decide to withdraw from the Unionin accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union…
…

The Government believed that it could ‘trigger’ article 50 by itself without Parliamentary approval. Ms Miller argued that only Parliament had the power to invoke Article 50.Hence the dispute was about each of the three arms of government, legislature, executive and judiciary.

The Daily Mail (see below) argued that it was undemocratic for unelected judges to be making such a decision which had the capacity as they saw it to thwart the ‘will of the people’. But is this just a misunderstanding of the constitutional system and the importance of an independent judiciary?

The issue for the Court to resolve was the clash of two constitutional principles. The first is that ministers generally enjoy a power freely to enter into and to terminate treaties without recourse to Parliament. The second feature is that ministers are not normally entitled to exercise any power they might otherwise have if it results in a change in UK domestic law, unless statute, ie an Act of Parliament, so provides.

The withdrawal from the EU would have the effect of changing the law in a number of ways. There was an apparent clash of principles that the Court had to resolve about whether the or not the Government could trigger Article 50 without Parliament passing a bill.

The Supreme Court ruled that Parliamentary approval was required.

Parliament

In accordance with the Supreme Court judgment, the Government introduced a Bill “to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU” to the House of Commons on 26th January 2017. For a useful summary of the Parliamentary procedure in this context see this short and informative Fullfact Article.

  • The Bill passed the House of Commons on 8 February 2017. It then went to the House of Lords.
  • On Tuesday 7 March the House of Lords proposed amendments to the Bill.
  • On Monday 13 March the House of Commons rejected the amendments put forward by the House of Lords.
  • The House of Lords removed its opposition to the Bill.
  • The Bill received Royal Assent on 16 March 2017 becoming an Act of Parliament (law). The government then had power to trigger Article 50.

Government

  • On 29 March 2017, Article 50 of the Lisbon treaty was triggered by the Government, by Britain’s ambassador to the EU handing a letter to the EU Council President.
  • There are now 2 years for the terms of the Brexit to be negotiated.

SOME QUESTIONS FOR DISCUSSION

  1. What are some unusual/odd/surprising features of the United Kingdom system of Government? What about the role of the House of Lords? The role of Ireland/Scotland?
  2. Why did David Cameron favour an in/out referendum on the EU despite being in favour of Britain remaining in the EU?
  3. How does the United Kingdom system of Government differ from other countries?
  4. How important is the role of Parliament as compared to the role of the Executive Government? Are Ministers really ‘responsible’ to Parliament?
  5. To what extent Parliament prevent the Government from passing a law?
  6. Are referendums a good way to make significant government decisions?
  7. Once a referendum has been held in favour of a policy (eg. Brexit) is it the duty of all Members of Parliament to support that policy? Does it matter that the referendum is not legally binding? Does it depend on how voters in that Member of Parliament’s electorate voted? Does it depend on their political party? Or should the MP follow their own view?
  8. Is it problematic for ‘unelected judges’ to be making decisions about the legality of government action?

DAY 2. DIFFERENT AREAS OF LAW AND THEIR ROLE IN OUR LIVES – 26 July 2017

Brainstorming: what are the functions of the law?

  • Contract, tort, property. [criminal law] [equity: wills, trusts]
  • (competition law, corporate law, consumer law
  • Contract: consent. (offer, acceptance, int to create legal relations, consideration)
  • Tort/criminal law: how different?
  • Public law v private law. What is the difference?

Negotiation Exercise – Prisoner’s Dilemma Red & Blue Game.

We will conduct a negotiation exercise that will demonstrate how the law can help to resolve issues in our society relating to choice, trust and competition between individuals and companies. We will consider the difference between having to operate in a lawless society and a society with laws. We will consider some of the types of laws that are necessary in our modern society.