WEBVTT - Peers on Comprehensive Law Needed For Brexit (Audio) 0:00:00.160 --> 0:00:04.600 Remember when UK Prime Minister Theresa May said this Brexit 0:00:04.880 --> 0:00:08.440 means brexit and we're going to make a success of it. 0:00:09.119 --> 0:00:12.760 But apparently there are more questions than answers about what 0:00:12.920 --> 0:00:16.880 Brexit actually means and how to trigger it. On December five, 0:00:16.960 --> 0:00:19.759 eleven judges will hear the case over whether May can 0:00:19.800 --> 0:00:22.840 trigger an exit from the EU without a vote of Parliament. 0:00:23.239 --> 0:00:25.759 One of those judges, Brenda Hale, gave a speech to 0:00:25.840 --> 0:00:28.479 law students in Malaysia last week and said the UK 0:00:28.640 --> 0:00:32.800 may need comprehensive legislation to start the process of leaving 0:00:32.800 --> 0:00:37.000 the EU, possibly delaying Brexit for years. She was immediately 0:00:37.040 --> 0:00:41.000 criticized by pro Brexit lawmaker Douglas Carswell for having made 0:00:41.120 --> 0:00:44.000 her mind before the trial, but the Supreme Court said 0:00:44.000 --> 0:00:47.040 Hale was simply presenting arguments on both sides of the 0:00:47.080 --> 0:00:49.600 appeal and didn't give any views on the outcome of 0:00:49.640 --> 0:00:53.040 the case. Our guest is Stephen Peers, a professor at 0:00:53.080 --> 0:00:56.600 the University of Essex School of Law. Stephen, I take 0:00:56.640 --> 0:00:59.000 it that Supreme Court justices in the UK are not 0:00:59.160 --> 0:01:02.200 used to their speech is being publicized as they are 0:01:02.360 --> 0:01:06.160 here in the US. But what do her comments reveal 0:01:06.319 --> 0:01:10.120 if anything. Well, I read the whole speech, and she 0:01:10.400 --> 0:01:13.920 was giving arguments of foreign against was trying to summarize 0:01:13.959 --> 0:01:16.920 everything that everyone was saying and weighs a lot of 0:01:16.959 --> 0:01:20.280 different possibilities. So I don't think she was saying for 0:01:20.319 --> 0:01:23.680 sure that had to be comprehensive legislation. But I think 0:01:23.720 --> 0:01:26.800 if the government tried to get away with anything short 0:01:26.880 --> 0:01:30.920 of legislation, then it's likely to go back to the courts. 0:01:31.040 --> 0:01:33.319 So I imagine now what they'll try and do is 0:01:33.400 --> 0:01:38.920 push through some very short legislation. Stephen, how long do 0:01:39.000 --> 0:01:42.200 you think the delay is likely to be if the 0:01:42.200 --> 0:01:46.880 court does say that Parliament has to act, Well, I 0:01:46.720 --> 0:01:51.200 imagine the government will propose legislation almost immediately and say 0:01:51.200 --> 0:01:53.760 that it has to be passed almost the same day 0:01:53.840 --> 0:01:55.880 or the next day of Parliament needs whenever, that is 0:01:55.880 --> 0:01:59.760 in December or January, and will see if they go 0:02:00.000 --> 0:02:02.320 on with that. And the main opposition party says it 0:02:02.360 --> 0:02:05.080 will push things through, but then it has to go 0:02:05.160 --> 0:02:08.000 to our House of Lords here, and there might be 0:02:08.200 --> 0:02:10.919 other members of Parliament who don't want to push things 0:02:10.960 --> 0:02:14.320 through and find procedual means to delay it, so it 0:02:14.480 --> 0:02:17.000 might take a few months. If people want to add 0:02:17.000 --> 0:02:20.079 things to and debated at length. I suspect they will. 0:02:20.560 --> 0:02:22.600 It will probably be a few days in the end. 0:02:25.639 --> 0:02:31.280 And Stephen, is there a sentiment that the people in 0:02:31.320 --> 0:02:35.000 the UK have changed their mind about Brexit? I mean, 0:02:35.000 --> 0:02:38.000 there was a lot of controversy the day after when 0:02:38.040 --> 0:02:41.600 people didn't seem to you know, we're googling what Brexit 0:02:41.720 --> 0:02:45.280 means and what the EU is. So is there a 0:02:45.320 --> 0:02:49.560 sentiment that it's it's not quite what the people want 0:02:49.680 --> 0:02:53.120 and that Parliament might vote against it. Well, when you 0:02:53.160 --> 0:02:55.480 see opinion polls, there seems to have been a slight 0:02:55.600 --> 0:02:58.280 shift back to the remain side, and that might be 0:02:58.720 --> 0:03:01.280 just enough if they were the afferendum that went a 0:03:01.280 --> 0:03:03.880 different way, the different way, But I don't think there 0:03:03.919 --> 0:03:07.000 are enough votes in Parliament to hold another reperendum again, 0:03:07.120 --> 0:03:09.840 which is obviously what you need, and that maybe a 0:03:09.919 --> 0:03:11.440 ye or two down the road they'd be more interest 0:03:11.480 --> 0:03:15.640 in that, but at the moment it doesn't seem very likely. Well, Stephen, 0:03:15.680 --> 0:03:18.680 are are there conditions that Parliament might try to put 0:03:18.720 --> 0:03:22.120 on the on the legislation that would be problematic for 0:03:22.160 --> 0:03:25.520 the government if a number of EMPs would like to 0:03:25.560 --> 0:03:28.400 do that. Although the main opposition party says it won't 0:03:29.160 --> 0:03:31.760 and try it, says a bell, try and influence things later. 0:03:31.880 --> 0:03:33.760 So there will be a battle I think among a 0:03:33.760 --> 0:03:35.640 few EMPs and maybe some members of the House of 0:03:35.680 --> 0:03:38.480 Lords to try and set conditions the government. I think 0:03:38.480 --> 0:03:41.200 it's going to try a procedural argument that no amendments 0:03:41.200 --> 0:03:46.320 are allowed to this very short bill. But we'll see 0:03:46.400 --> 0:03:48.960 if the Speaker of the House of Commons of the 0:03:48.960 --> 0:03:51.520 House of Lords allow the amendments to be debated, and 0:03:51.560 --> 0:03:53.320 how likely they are to go through. I think that 0:03:53.720 --> 0:03:55.480 the place to watch as the House of Lords, which 0:03:55.520 --> 0:03:58.200 is more independent and where I think there's a little 0:03:58.240 --> 0:04:00.480 there's a little bit of a chance of someone amendments 0:04:00.480 --> 0:04:05.040 being put through. The BBC is reporting that the government 0:04:05.240 --> 0:04:11.720 is preparing legislation so that if the government loses the 0:04:11.760 --> 0:04:14.400 Supreme Court appeal, this will be ready, and that the 0:04:14.440 --> 0:04:18.440 bill is just three lines long and tightly drawn, which 0:04:18.480 --> 0:04:24.360 would I suppose make it difficult for lawmakers to amend it. Yes, 0:04:24.440 --> 0:04:28.120 that's right. I mean my understanding is that the rules 0:04:28.320 --> 0:04:31.920 are that the screening first of all as to whether 0:04:31.920 --> 0:04:34.520 amendments are allowed, but then it goes to the floor 0:04:34.520 --> 0:04:36.680 of the House of Commons and they vote on whether 0:04:36.800 --> 0:04:38.360 or not to allow the amendments, and the Speaker has 0:04:38.360 --> 0:04:41.040 to say as well, So there will be that process 0:04:41.080 --> 0:04:43.159 of whether to consider the amendments in the first place. 0:04:43.160 --> 0:04:45.920 And I imagine the government would have enough votes in 0:04:45.960 --> 0:04:48.599 the House of Commons with the opposition support not to 0:04:48.680 --> 0:04:51.480 consider amendments. But in the House of Lords the government 0:04:51.480 --> 0:04:54.320 doesn't have a majority. There are lots of people who 0:04:54.360 --> 0:04:57.240 aren't affiliated to any party, or a lot of people 0:04:57.279 --> 0:05:00.240 who don't want Brexit there, so I think, as a said, 0:05:00.240 --> 0:05:03.120 there's a bit better chance of amendments being considered and 0:05:03.160 --> 0:05:07.440 it maybe even being supported in the House of Lords. Stephen, 0:05:07.440 --> 0:05:10.119 the government put out a statement on Friday of last 0:05:10.160 --> 0:05:14.479 week describing what its appeal is likely to look like. 0:05:14.640 --> 0:05:18.040 Did we learn anything from that and and regardless, give 0:05:18.080 --> 0:05:20.279 us a sense of what the basic argument the government 0:05:20.360 --> 0:05:23.880 is going to be making to the UK Supreme Court. Well, 0:05:24.400 --> 0:05:27.680 the government basically was one page summary and there wasn't 0:05:27.720 --> 0:05:31.640 much there. But basically, the argument that's gone to court 0:05:31.880 --> 0:05:36.400 is between two conflicting principles of our British constitutional law. 0:05:36.480 --> 0:05:38.320 So on the one hand, the government has power of 0:05:38.480 --> 0:05:42.279 foreign affairs and this is an act of announcing the treaty, 0:05:42.360 --> 0:05:44.520 so that's foreign affairs, so the executive ought to be 0:05:44.600 --> 0:05:47.159 able to do that. So that's one principle. The other 0:05:47.200 --> 0:05:51.360 principle is that the government's power over foreign affairs can't 0:05:51.400 --> 0:05:55.200 be used to remove rights which Parliament has granted. And 0:05:55.400 --> 0:05:59.000 in Britain real dualist maybe have international law separate from 0:05:59.080 --> 0:06:02.080 national law. So the rights that come from el are 0:06:02.120 --> 0:06:05.119 set out in an Act of Parliament. And so that's 0:06:05.160 --> 0:06:07.560 where the second argument comes in. It's that the government 0:06:07.600 --> 0:06:10.400 can't remove these rights in the Act of Parliament by 0:06:10.400 --> 0:06:12.279 denouncing the treaty which is linked to the Act of 0:06:12.279 --> 0:06:16.360 Parliament and liberate is exactly which of these two rules, 0:06:16.480 --> 0:06:20.640 which are conflicting, takes priority in this case, Stephen, who 0:06:20.720 --> 0:06:23.840 has the better side according to your view of the law? 0:06:25.320 --> 0:06:28.359 I think it's it's roughly fifty fifty to be a 0:06:28.400 --> 0:06:33.240 little bit evative. But on the if, I certainly the 0:06:33.680 --> 0:06:36.360 claimants that people criticize in the government, I think their 0:06:36.480 --> 0:06:39.600 argument is stronger from the point of view of the 0:06:39.680 --> 0:06:44.560 underlying logic of the British Constitution, which is parliamentary supremacy. 0:06:44.560 --> 0:06:47.480 Above all, we don't have a constitution that takes priority 0:06:47.560 --> 0:06:50.839 like America and many other countries. Instead, we have parliamentary 0:06:50.839 --> 0:06:53.320 sovereignty as the basic group. And if that's the basic group, 0:06:53.720 --> 0:06:56.520 then I think any if there's any doubt or any ambiguity, 0:06:56.560 --> 0:06:58.159 you should come down on the side of Parliament, not 0:06:58.200 --> 0:07:01.560 the executive. Well, Stephen, how long can we expect before 0:07:01.600 --> 0:07:06.440 the court decides how this should happen? Well, they're hearing 0:07:06.480 --> 0:07:11.080 it a which or so into December, and then some 0:07:11.200 --> 0:07:13.800 people assuming it might come out just before Christmas, something 0:07:13.880 --> 0:07:18.000 like Friday twenty even. You can imagine that right before Christmas, 0:07:18.080 --> 0:07:20.600 and I think it may be more likely to be 0:07:20.640 --> 0:07:24.480 a week or so into January. But really, if anyone's guests, 0:07:25.320 --> 0:07:29.080 and how long once this is done this stage, how 0:07:29.120 --> 0:07:32.400 long will the actual process take? I mean we're still 0:07:32.440 --> 0:07:37.080 looking at years. Well now, um, well, the problems to 0:07:37.120 --> 0:07:38.720 parts a bit. As I said, it might be very 0:07:38.800 --> 0:07:42.440 quick unless the House of Lords frustrates it. But then 0:07:42.440 --> 0:07:45.520 the process to leave the EU would be in principle 0:07:45.640 --> 0:07:48.960 two years from the date of giving notice, which might 0:07:49.040 --> 0:07:51.800 still be March if the government's plans stay on track, 0:07:52.880 --> 0:07:54.920 but that two years can be shortened or length and 0:07:54.960 --> 0:07:57.720 if this agreement so, it's hard to be sure in 0:07:57.760 --> 0:08:00.560 advantage there will be agreement, but I think the most 0:08:00.640 --> 0:08:02.440 likely scenario is that it will. It will be the 0:08:02.480 --> 0:08:05.240 two years, and so Britain would leave sometime in the 0:08:05.280 --> 0:08:06.880 spring of twenty nineteen.