EU withdrawal – children’s rights to ‘express their views’

Children and EU Charter of Fundamental Rights: rights to be lost?

 

This article looks at children’s rights in legal proceedings which will go with EU withdrawal; and which can only be replaced if MPs specifically take steps to create new law. If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than is promised by English law as it now stands.

 

It is not always well-known that EU has its own human rights charter: Charter of Fundamental Rights of the European Union (2000/C 364/01) , much of which is modelled on the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In certain important respects it develops the European Convention 1950, especially in the field of children’s rights (which have no direct mention in the 1950 Convention).

 

The Charter will go with EU withdrawal; so will the children’s rights which it protects be replicated in English law – so far as English law is now different? In certain crucial respects it is fundamentally different as will be explained.

 

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

 

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

 

Children’s views, according to age and maturity

 

This article looks at the meaning and effect of Art 24.1: ‘They may express their views freely. Such views shall be taken into consideration… in accordance with their age and maturity.’

 

United Nations Convention on the Rights of the Child 1989 Art 12  – by which UK will still be bound, so far its provisions are enforceable – is in similar terms to Art 24 of the Charter as to a child’s right to be heard in ‘judicial proceedings’: that is ‘to express… views freely’; and for them to be ‘given due weight [according to the child’s] age and maturity’ (Art 12.1).

 

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was taken into consideration by the Court of Appeal. The question of a child being heard was raised to a ‘fundamental principle’ of English child law. In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

 

‘Right to participate’ in proceedings about the child

 

In Re D Ryder LJ in the Court of Appeal treated the child as having ‘the right … to participate in the process that is about him or her’ (§44); but only because of EU legislation. He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case.

 

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). This provision – which is central to English law on this subject and to this article – seemed radical when made law in 1989. Looked at in the light of EU legislation it has a somewhat shop-worn and conservative air. Section 1(3)(a) says:

 

(3) [When the court is considering making an order about a child it] shall have regard in particular to –

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

 

 

This, said the judge in Re D [2016], was a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded (emphasis added):

 

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

 

In practice the questions of whether a child should meet a judge state a view to him or her is left to non-statutory GuidelinesGuidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 – issued by an unofficial non-statutory body (albeit approved in case-law). It is now seven years old and states its purpose as being ‘to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings’. There is no reference to any rights for children; still less to either Art 24 (or to the UN Charter).

 

Child’s right to be heard: nothing to be ‘given’

 

If I were an English child I would want more protection for my rights from the EU withdrawal repeal bill than this. This is because of:

 

  • Children Act 1989 s 1(3) gives the court only an option to consider my views;
  • The Guidelines give me no reassurance that English judges realise that I have rights (if I want to express my views); not that they have the option whether or not to receive my views; and I would prefer that those rights, in statute, be referred to in statutory guidelines, not the informal 2010 Guidelines.
  • I am afraid my worries would not be made less by a speech of a leading family judge King LJ ‘Giving children a voice in litigation: are we there yet’ , a speech given in November 2016. If a child has rights, there is nothing for judges to ‘give’. Theya re entitled to have their voice heard say Art 24 and Art 12; but this is not what English law on its own says.

 

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2007] 1 FLR 961 the House of Lords was dealing with an 8 year old. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

 

[57]… Until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

 

All of this – from Art 24 to Lady Hale’s views in Re D [2007] speak for a child’s right – emphasis on ‘right’ – to be heard. Just as the English judiciary have done so far, the wording of Children Act 1989 s 1(3)(a), as I read it, comes well short of a right. As the ‘guidelines’ say, it is up to the judge to decide: no question of a child’s ‘right’. By contrast the Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24 and Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) eg Art 23 each guarantee rights and participation. That will go with EU withdrawal unless it is reproduced in UK legislation. (And this is before we look at what will be lost to children and others involved with EU withdrawal with the loss of the reciprocal arrangements in Brussels IIA.)

Child’s evidence – Part 1: before and after EU withdrawal

Court of Appeal and hearing the child – or not…

In Re S (a Child) [2017] EWCA Civ 44, through a fog of imprecise chronology and unavailable evidence (or was it uncalled, in the case of the child?), the Court of Appeal were able to allow one ground only of a mother’s (M) appeal. That ground related to whether or not her eight year-old son, A, may have been physically abused by his father (F). She did not oppose contact in principle but wanted it to be safe for the child. (Though represented below, the child seems not to have appealled, nor to have made representations in the Court of Appeal.) By the time of the hearing before the judge M had left United Kingdom to live with her husband in Ireland; but, after A was made a ward, she returned to UK to apply to the UK court to relocate.

The parents had a short relationship which had ended in August 2010. The appeal related to findings made by the judge before whom a series of contact applications (starting in the family proceedings court) had finally arrived. He had a schedule of 14 allegations made by the mother. He found three proved, the remainder he rejected. The first two were general, namely that F had behaved in a controlling way towards M throughout their relationship and that he was violent towards her, this being exacerbated by drink. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

Evidence from the child: mother’s case rejected by the judge

Of the remaining ten sets of allegations made by M, all but one were rejected by the by the Court of Appeal. The judge had not accepted the ground which arose partly from what A had said. (The judge did not hear what the child had to say about it: this article returns later to the absolute right of the child to be heard.) On this ground the Court of Appeal allowed M’s appeal. It arose from what A had said to a family support worker (S), combined with the fact of a ‘conditional caution’ – for which there must be an admission by a suspect – that F had injured the children a later girlfriend.

Black LJ (who gave the main judgment) explained the factual back-ground when S had seen A, as follows. :

[27] … The judge had available to him [S’s] written report of what A said to her. In it, S explained that she had been working with the family since February 2013, helping to “manage their high levels of anxieties”. It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A’s account of his father’s actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked “unexpectedly” whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father’s.

The judge had said that ‘the allegation was a serious one’; but then had rejected the allegation and not given it full consideration said the appeal court. Black LJ explained this:

[30] … It seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A’s apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he “took no account of [the father’s] previous physical chastisement of children” (my emphasis). He might ultimately have concluded that the father’s actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father’s violence towards the mother contributed anything to the issue in relation to A.

Black LJ therefore set aside the finding that the assault on A did not take place. She remitted the allegation for hearing by another circuit judge (though no reference was made by her to Art 24 (below) or as to whether A will speak to the judge).

Modern questions of legal principle

These facts in relation to this particular case raise a number of live questions of law, both in relation to EU law and family proceedings; and as to other areas of changing family law. In summary these are as follows:

  • Child’s rights and Art 24 – This article looks at the appeal and asks how might the same case have been dealt with if Charter of Fundamental Rights of the European Union (2000/C 364/01) (‘the Charter’) Art 24 (and its expression of the rights of the child) been taken fully into account.
  • Cross-examination of M had F been unrepresented – How might the cross-examination of M been dealt with had F been unrepresented before the judge? This subject is now proposed by the Secretary of State for Justice (Ms Truss) to be reformed.
  • Domestic violence and contact with A – How should the present and proposed PD12J, Child Arrangements & Contact Order: Domestic Violence and Harm effect this case (again this practice direction was not mentioned specifically in Court of Appeal).
  • Relocation to Ireland and further hearings about A – And speculation for the future: how might contact be dealt with after EU withdrawal if A goes to Ireland (which will remain in EU) where the mother wants to live.

Rights of the child under EU Charter of Fundamental Rights

The Charter defines rights, some of which are replicated in European Convention 1950, for all EU member states. It is part of EU and UK law since the Lisbon Treaty of 2009. It is enforceable in the European Court of Justice. Presumably it will go with EU withdrawal.

Under the heading ‘The rights of the child’ Art 24 of the Charter provides:

1 Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3 Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

So what were A’s rights in these proceedings; what light could he have shed on what happened; and what (if anything) will happen to those rights with EU withdrawal? The first thing to say is on children’s views and their evidence (dealt with more fully in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 19). A child’s evidence may be as to relevant facts, or as to expression of a view on outcome. Had A been permitted to ‘express a view’ in these proceedings (as Art 24(2) guarantees: it is not clear from the report whether the judge offered this) he could have spoken to the judge about both: what had happened during when he was ‘hurt’ by F and as to whether he had a view on the future of contact. He is competent to give evidence; but as to how would be for the judge.

These two aspects of hearing a child have been considered by Lady Hale. She explained giving of evidence by a child in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 (evidence from a 12 year old as to sexual abuse by her father) and the means by which this could be done (it seems the hearsay evidence of S was not accepted by the judge):

[28]   The family court will have to be realistic in evaluating how effective it can be in maximising the advantage [of the child giving evidence] while minimising the harm [to the individual child]. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy. The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly. One possibility is an early videoed cross-examination as proposed by Pigot. Another is cross-examination via video-link. But another is putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

From a reading only of the law report, it is difficult to see how harm to A would outweigh the longer-term advantage to his welfare of his giving live evidence, if he is indeed at risk from further ham from his father. And this is a question which a court must surely answer under Children Act 1989 s 1(6) (contact between child and parent, unless risk of harm: to be considered later in this series)?

As to a child’s views and their weight in children proceedings, in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 FLR 961 the House of Lords was dealing with a child of the same age as A. Of that child’s views and his entitlement to have his point of view heard (which may be quite distinct from that of the person looking him) Lady Hale said:

[57]   There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child’s objections was raised…. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

In neither instance is need the child be subjected to intense cross-examination as might be an adult; but it is the child’s right to be heard in way which was not obviously the case – certainly the child was given no role by Black LJ in the appeal – in this case.

Child having an ‘opportunity to be heard’

In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 Art 24 was expressly taken into consideration and the question of a child being heard was raised to a ‘fundamental principle’ of English child law (and see Evidence in family proceedings (above) at Ch 19 Pt 6). In that case the Court of Appeal considered whether a Romanian court order should be enforced in UK where a child was not given ‘an opportunity to be heard’ on parental responsibility (ie in where he was to live). The child (aged 7 – slightly younger than A – when the decision appealled against was made) had not been given this opportunity in Romania, as required by Brussels IIA Art 23(b), so his father could not enforce the order in this country. (Incidentally, the decision depended on reciprocal arrangements between the English and Romanian courts. This cannot be expected to survive Brexit. If families break up and go to different EU countries, with one of them being in the UK, family litigation will increase.)

In Re D Ryder LJ treated the child as having ‘the right … to participate in the process that is about him or her’ (§44). He started his review of the applicable law from Brussels IIA and its recitals, and set out Art 24 in full (§[15]) which is incorporated into Brussels IIA. Every court must consider a child’s involvement in proceedings according to the context of the case. This is supported also by United Nations Convention on the Rights of the Child 1989 Art 12:

(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In the search for ‘fundamental principles’ Ryder LJ started with Children Act 1989 especially the check-list of factors for considering court-ordered arrangements for children in s 1(3). Of the list in s 1(3) he held s 1(3)(a) – that the court shall consider the ascertainable wishes and feelings of a child – to be a ‘fundamental principle’ which no ‘parent can seek to avoid’ (§38). He concluded:

[44]   That is rightly an acceptance that the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in s 1(3)(a) of the CA 1989 like that in Art 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.

Children and EU law

And what of the child’s right to be heard in Europe? United Nations Convention on the Rights of the Child 1989 Art 12 (by which UK will still be bound, so far its provisions are enforceable) is in similar terms to Art 23 of the Charter as to a child’s right to be heard in ‘judicial proceedings’, and where that child is capable of forming his or her own views (and see Ryder LJ in Re D [2016] (above)).

In UK law, the child’s wishes and feelings are considered by the court in the light of the child’ ‘age and understanding’ (a factor to be considered in Part 3). It may be a distinction without any real difference; but the Charter and UN Convention express these principles as a right. In UK it is permissive. The present Guidelines on Judges Meeting Children who are subject to Family Proceedings April 2010 [2010] 2 FLR 1872 set out their purpose as being to encourage judges to enable children to feel more involved in proceedings which affect them and to ensure judges have understood their wishes and feelings.

The Charter will go with EU withdrawal. It remains to be seen whether UK judges develop its concept of child’s rights (as distinct from their views being taken into account); or whether they will take the more passive approach implied by the UK sources referred to above. And then, as will be considered later in this series, it remains to be seen whether any of the rights now attaching in English proceedings, will be salvaged from the EU withdrawal wreckage; or will English and European courts brandish differing rights of issue and enforcement of proceedings?

Is it rational to trigger Article 50?

EU WITHDRAWAL AND PRIME MINISTER’S REASONS

 

The present Government proposes that the United Kingdom withdraw from the European Union following a referendum on the issue in June 2016. A Bill giving the decision on triggering the process to withdraw to the Prime Minister is going swiftly through Parliament. This article considers how a Prime Minister must exercise her judgment in taking that decision, by considering the following questions:

 

  • Discretion and reason – What is discretion and exercise of judgement; and how is it affected by operation of the rationality of the decision-maker (ie the Prime Minister in this case)?
  • Referendum result – How does reason apply to the referendum result; and how far was the result ‘advisory’?
  • Rights and EU withdrawal – How does the treatment of rights in EU withdrawal apply to an exercise of reason?

 

The EU withdrawal issue has been twice before the courts in recent months: before the Divisional Court in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) and the Supreme Court as R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 (http://www.bailii.org/uk/cases/UKSC/2017/5.html). They will be referred to as Miller 1 and Miller 2 respectively.

 

These cases resolved only whether the Government must have Parliament’s permission – that is, an Act of Parliament – for the Prime Minister to trigger the process for UK’s coming out of the EU and by activating Treaty of European Union 1992 Article 50. At the time of writing there is a Bill before Parliament (set out below) which will do what the two courts said the Government must do.

 

This article concerns only the narrow point of what should operate on the mind of the Prime Minister when she considers the rationality of whether or not to trigger Art 50. In particular it will look at this in the light of two points: (1) the advisory nature of the referendum and (2) the rights of UK nationals and EU members engaged.

 

 

DISCRETION, JUDGEMENT AND REASON

 

Exercise of discretion

 

Any Minister to whose job is to exercise a discretion, or judgment in the making of a decision, must exercise it rationally. If judgment is exercised by a Government minister it must be exercised wisely and according to the law. It must be exercised according to reason, and not in an arbitrary way. Administrative Law (2014) Wade & Forsyth (11th Ed), often quoted by

 

A minister’s reasoning depends on appropriate information being provided to him/her. If appropriate information is provided and understood the minister has a firm foundation for making a decision. If there is a choice of courses, the minister decides by exercise of discretion. That exercise of discretion is governed by the same legal principles in 2017 as over 400 years ago in Rookes Case. In that case in 1598 the report, by Edward Coke, later Sir Edward Coke, said of the exercise of discretion of commissioners of sewers:

 

That they should do according to their discretions, yet their proceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Commissioners ought not to follow their wills and private affections;

 

The rationality of any exercise of discretion can always be brought into question. Statutory power is, in a sense, vested in a minister on trust for the governed as a whole. Therefore ‘unfettered governmental discretion is a contradiction in terms’ (Administrative Law (above) at p 295). The modern statement of the law on this is Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924 where a majority (four to one) in the House of Lords refused to permit a government minister to act in a way which, they said, was no in accordance with the Act of Parliament under which he proceeded (in that case with complaints from farmers about a Milk Marketing Board pricing scheme).

 

Lord Reid explained his view of the law after first saying that, it seemed to him, that the minister was trying to argue that there could only be ‘two possible interpretations of this provision either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.’ Lord Reid refused to accept this argument by the Minister:

 

I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

 

Prime Minister’s discretion

 

That is, according to Padfield, it is necessary to find out first what a relevant Act intends. The problem with the European Union (Notification of Withdrawal) Bill – and it is still a Bill – is that it does not say what it intends beyond giving authority ‘to notify’ the UK’s intention to leave the EU. Clause 1(1) says, under the heading ‘1 Power to notify withdrawal from the EU’:

 

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

And therein lies the discretion: the Prime Minister ‘may notify’. She has to decide. In so doing she must act rationally. Underlying that rationality question it is critical for her to be clear – and preferably to say that she is clear – what is meant by the 2016 referendum. Secondly, she needs to understand as fully as possible what will be changed adversely to those she represents – the UK nationals affected in the variety of ways involved – as a result of triggering Article.

 

The first of these points – the advisory nature of the referendum – has been explained to her, or for her, by the High Court and Supreme Court. The second could not have informed the electorate’s mind when they voted in the referendum – as she well knows. She knows this because neither she nor the army of civil servants working on the question have begun to give her an informed view of it all – eg by presenting or publishing a draft ‘Great Reform Bill’.

 

So that takes us back to Coke and what is meant by the discretion she has been given by s 1(1) and how she exercises it.

 

 

THE REFERENDUM

 

Meaning of the 2016 referendum

 

The referendum issue can be approached in this way. In December 2015, the UK Parliament passed the European Union Referendum Act 2015. The ensuing referendum on 23 June 2016 produced a majority of those who voted, favour of leaving the European Union. UK government ministers then announced that they would bring UK membership of the European Union to an end.

 

The effect of any referendum said the Supreme Court in Miller 2 depends on the following:

 

[118] … the terms of the statute which authorises it. Further, legislation authorising a referendum more often than not has provided for the consequences on the result. Thus, the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum

 

The 2015 Act did not state what the outcome of the referendum was to mean. It left what was to happen next open. No provision was made in the Act for the consequences of the referendum. The earlier 1975 referendum was described by ministers as advisory, whereas the 2016 referendum was described as advisory by some ministers and as decisive by others. So how had ministers seen the question of outcome of the referendum, asked the Supreme Court:

 

[125] It is instructive to see how the issue was addressed in ministers’ response to the 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom). The Committee included the following recommendation in para 197:

“[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

The UK government’s response as recorded in the Committee’s Fourth Report of Session 2010-11 was

“The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

 

The courts and the referendum: ‘advisory’ said the High Court

 

So in 2010 ministers were told the referendum ‘cannot be legally binding’, and are therefore ‘advisory’; and in 2011 ‘Parliament must be responsible’ for any decision. In the Divisional Court in Miller 1 the judges drew attention to the parliamentary briefing paper No 7212 Pt 5.

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

 

The ‘briefing paper’ referred to in §107 is set out in Annex 1 to this article. The passage which is likely to have been in members’ minds when they voted for the 2015 Act, and should be in Mrs May’s mind now, is in Pt 5 as follows:

 

[The Referendum Bill (as it was then)] 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 Supreme Court decision in Miller 2 was, in the end, expressed by the majority as simply as:

 

[124] Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.

 

 

RIGHTS AND EU WITHDRAWAL

 

EU rights lost by withdrawal: the judge’s view

 

If new legislation is planned the Government department publishes a green paper for discussion of a subject and for it to receive views. A white paper can then follow to set out Government policy and is likely to be followed by a bill setting out proposed new law. Here there has been a four line bill (awaiting its third reading as I write). There has been no green paper; and a white paper emerged from the Government whilst the bill was going through Parliament.

 

So what is the Government’s understanding of rights which may be lost – to EU nationals in the UK, and to UK nationals in the EU – by EU withdrawal? This should perhaps be uppermost in a reasonable Prime Minister’s mind if she considers the triggering of Art 50?

 

In Miller 1 the Divisional Court explained that under European Communities Act 1972 s 2(1) rights had been incorporated into – ‘given legal effect’ under – UK law (§§[57]-[66]). The court identified three categories of rights under ECA 1972 and EU law (a categorisation accepted by the Supreme Court: see Miller 2 at §69) which would be affected or lost as a result of EU withdrawal:

 

  • Rights capable of being reproduced in UK law;
  • Rights derived by UK citizens from EU law in other member states;
  • Rights of participation in EU institutions that could not be replicated in UK law.

 

The Supreme Court explained that, in general terms (at §69) ‘our domestic law will change as a result of the United Kingdom ceasing to be party to [the EU treaties], and rights enjoyed by UK residents granted through EU law will be affected’. The Supreme Court went on, at §§70-72 to give examples of these rights. For example in category (1), a lengthy paragraph included:

 

[70] … They include, for instance, the rights of UK citizens to the benefit of employment protection such as the Working Time Directive, to equal treatment and to the protection of EU competition law, and the right of non-residents to the benefit of the “four freedoms” (free movement of people, goods and capital, and freedom to provide services)….

 

The Divisional Court explained the consequences for these rights as follows:

 

[64] As to category (1) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer [by the Government] to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect….

 

What the Divisional Court said of category (2) rights included the following (italics added):

 

[65] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (2) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.

 

The Prime Minister on rights

 

So what does the Prime Minister, who is to sign off Art 50(2), think of all this? We have her 17 January 2017 speech and the White Paper to test this. What do these say on the subjects? This and the white paper is the only real test, so far, of her reasoning on the subject. Her speech of 17 January said that

 

… we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

 

So what laws did she have in mind, bearing in mind what the judges had said on the subject:

 

We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.

 

Mrs May suggests surprise in her speech that not all EU members will agree; and if they will not where does that leave category (2) rights? Is that of concern to her? She does not say. It is a matter which, it could be argued, should act on her mind before she triggers Art 50.

 

She then dealt with protection of ‘workers’ rights’. ‘A fairer Britain’ is a country ‘that protects and enhances the rights people have at work…. we will ensure that workers’ rights are fully protected and maintained.’ She did not distinguish between rights of workers in the UK, and of UK nationals in EU countries.

 

EU withdrawal White Paper: treatment of rights

 

The Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, February 2017 (Cm 9417) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf) put a little flesh on the bones of Mrs May’s 17 January speech. (It is that White paper which included – with only one verb, ‘’s’, in the quoted paragraph (on page 3) – the remarkable: ‘And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen.)

 

The contents page of the White Paper is set out at the end of this article (Annex 2). It says the White paper deals with rights in two contexts only:

 

  • Securing rights for EU nationals in the UK, and UK nationals in the EU
  • Protecting workers’ rights

 

The White Paper does not attempt to list these rights nor to deal with them in the way that the two judgments do. Still less does the White Paper produce the Government’s promised – or is it? – Great Repeal Bill. Securing rights for EU nationals, and for UK nationals in the EU is dealt with in two page; and one of those pages is mostly graphs. The second page includes:

 

6.3 Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations…

6.4 The Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible. The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

 

These two paragraphs – on which the rights for the future a number of people depend – represents no substance: not what rights are engaged and how they will be dealt with, for example. As far as it goes – and that is not very far – it is little more than hope and a little recrimination. There is not reflection that if things like this had been considered with EU partners (as they still are) before a decision to leave, they might have been a little keener to help. Mrs May seems a remarkably naive negotiator, but perhaps that goes with bossiness.

 

‘Workers’ rights’ get even less: one page, two paragraphs and no graphs. And that is it on the rights sections. Compare the White Paper with the efforts to provide information in the two court judgements and that put into production of a White Paper which should have been in gestation since June last year, and you realise how this country is served by its judges as against by its government.

 

 

CONCLUSION: REASON IN EXERCISE OF DISCRETION

 

How to define the nut; defining the rights lost

 

In the case of R (Quila & anor) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, [2012] 1 FLR 788 (http://www.bailii.org/uk/cases/UKSC/2011/45.html) the Supreme Court were concerned with a Home Office regulation which – to help to combat forced marriages, it was said – raised the age for immigration to the UK for marriage to 21. Such evidence as there was suggested that many more unforced marriages would be impeded than forced marriages prevented. Had the Secretary of State (Mrs May, as it happens) acted rationally in deciding to agree to the regulation?

 

No said Lord Wilson (with whom three of the other four Supreme Court Justices agreed). She had identified a nut, but failed to identify the size of the nut to which she was taking a sledge-hammer:

 

[58] … The number of forced marriages which [the regulation] deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made…. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.

 

Leaving the EU is the sledge-hammer which the referendum has advised Mrs May – no more than advised – to wield. One aspect of the nut – the problems which, it is thought, EU withdrawal would solve and the advantages it create – can no doubt be guessed at by any number of Brexit enthusiasts. But – the other aspect of the nut – a reasonable person must weigh all matters in the balance.

 

Rights of UK nationals and EU members to be lost

 

The factors the Prime Minister must put in the balance – and which she might have to explain to a High Court judge (the equivalent of the number of unforced marriages in the Quila case) – have not been explained by her to us. The White Paper does not do it. Amongst these factors, it might be thought by her, are the loss or disruption of many rights which go for EU members in the UK and UK nationals in the EU; workers’ rights; rights on family breakdown and for children if parties live in UK and EU respectively. Many more such rights have yet to be clarified and their future enacted into draft legislation. (Had they been defined by a Government department it is most likely we would have a draft ‘Great Reform Bill’ by now.)

 

It is the Prime Minister’s decision if the Bill is passed. She does not have to say how she reaches her decision, but the less she says the more she may have to explain later. Within the range of the two areas covered in this article – the size of the rights ‘nut’ and an understanding that the referendum was ‘advisory’ of MPs only – it can be said of the Prime Minister’s decision that two conclusions follow.

 

First, for the Prime Minister to proceed on the basis that she must withdraw UK from the EU because it is the ‘will of the people’ is wrong. Constitutional principle (supported by the 7212 briefing paper (Annex 1 below) and the Divisional Court and Supreme Court) is that it is a decision for her and MPs. This decision of MPs takes into account, only, the referendum outcome. Secondly, without setting out fully and clearly what rights will be lost and with what consequences she expects for those affected the Prime Minister cannot rationally exercise her discretion to trigger Art 50.

 

The combination of both grounds makes any decision at this stage open to a challenge that it has been arrived at irrationally; and if challenged successfully, that it could be declared void by the High Court.

 

David Burrows

8 February 2017

© David Burrows, Paris 2017

 

 

ANNEX 1

 

Extract from Briefing Paper

 

  1. Types of referendum This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It 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. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper and agreed by both Houses.64

 

 

ANNEX 2

 

Contents page of White Paper

 

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  8. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world. 10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  9. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  10. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

 

If Article 50, then only with reason…

Mrs May and ‘the rule of reason’: some notes

[This is a holding note: further sections need to be added on ‘rule of reason’ and the consequences if Mrs May’s reason is not exercised, or is exercised unreasonably.]

It is too late to do much about MPs and what seems to be their minimal understanding of the meaning and consequences of a referendum; and thus to stop the passage of the Article 50 bill. This is the European Union (Notification of Withdrawal) Bill 2017 (the 2017 Bill) whose short title is: 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.

 

Once the bill is law – has been given Royal Assent – then the landscape changes for political to administrative. We are back to executive or government powers; and then anyone planning to trigger Art 50 (ie the Prime Minister, Mrs May), according to the United Kingdom ‘constitutional arrangements’, is an administrator. (In what follows ‘government’ and ‘executive’ will be used more or less interchangeably; and administrative law will be taken to apply to each.)

 

It is one of the cardinal rules of administrative law that anyone responsible for exercising a power must do so with reason. Parliament is sovereign; but the government – including Mrs May – is subject to the law (and as she has found already). Triggering Art 50 is one of the more significant exercises of any executive powers since the Second World War (going into Europe was sanctioned by Parliament). She has a decision to make. It is her decision, albeit with advice from a proportion of the June 2016 electorate in a referendum. She must make that decision within the terms of the ‘rule of reason’ (see Administrative Law (2014) Wade & Forsyth (11th Ed) at p 293: a leading text-book on this subject often quoted in the Supreme Court).

 

If Mrs May triggers Art 50, is she doing so with reason? If so what are her reasons? If she is not acting with reason, she can be stopped. If she triggers Art 50, but without express reason, can the clock be put back? Can her action be stopped, if taken without reason – and if this is acceptable to the wider EU community?

 

A meaning for the referendum

 

No-one in Parliament – including Mrs May – seems to know what the outcome of the referendum actually means. To act upon it, or – as she will do – to claim you are acting upon it, without knowing what it means, by definition is to act without reason. A doctor does not plunge a knife into a patient’s breast and think it will cure his or her heart: she needs extensive training to operate on a heart. So too with signing off Art 50. A high degree of understanding of the UK constitutional arrangements is needed; and this understanding is called for in an area – the consequences of referendums – which is, as yet, untrodden.

 

This note explains this proposition further, does so in the context of administrative law, and suggests what could be done about it.

 

European Union Referendum Act 2015 s 1 provided: ‘(1) A referendum is to be held on whether the United Kingdom should remain a member of the European Union.’ The section went on to deal with dates and to set out the questions to be asked in English and in Welsh. In English this was:

 

(4)The question that is to appear on the ballot papers is—

Should the United Kingdom remain a member of the European Union or leave the European Union?

 

And that was that: nothing was said about whether this was to bind the government; what was the meaning of a referendum in UK law; how long the effect of the answers was to last (eg as the members of the electorate on the roll changed); and so on.

 

Members of Parliament voted on the bill which lead to the 2015 Act, with the following House of Commons Briefing Paper Number 07212 of 3 June 2015 in mind. (If they did not read it does that make any difference to their approach now?) The briefing paper said of European Union Referendum Bill 2015-16:

 

This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It 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. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution.

 

That bill and the 2015 Act lead to the referendum on 23 June 2016. And in the light of this, and the 2017 Bill (if enacted) leads to the power in the Prime Minister to trigger Art 50.

 

Referendum and the courts

 

In R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (the first of the two EU withdrawal cases) the Divisional Court said this of the 2015 Act and the referendum:

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

[108] We emphasise that the Secretary’ of State’s position on this part of the argument and the observations in the preceding paragraphs relate to a pure legal point about the effect in law of the referendum. This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.

 

By ‘elsewhere’ it must be assumed they meant by Parliament or the Government (the executive). There is no evidence that the meaning of the referendum has been ‘taken into account’ in the 2016 bill. The Government have given us no indication as to what Mrs May thinks is its meaning. Plenty of MPs think they are bound in some way by the ‘will of the people’. If the people, like the briefing paper, thought they were tendering advice then this is developing well beyond a serious constitutional misunderstanding with substantial consequences.

 

Supreme Court and meaning of referendum:…

 

Administrative law and the rule of reason

 

Short essay on ‘rule of reason’:

  • Start from Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924
  • Unfettered discretion: contradiction in terms
  • Special care for ministerial decisions

 

Conclusion: reasonable to trigger Art 50?

 

‘Will of the people in referendum’

 

Burke’s theory: needs revisiting in 2017: mandate or representative

 

No white paper

 

No account taken of situation in 2017: May’s blinkered approach is the antithesis of reason

 

Is an electorate which votes in a simple binary elect capable of ‘reason’ in the administrative law sense of the term?

 

© David Burrows, Paris January 2017