sexta-feira, 4 de novembro de 2016

Só o Parlamento pode reverter uma lei que ele próprio aprovou / MPs will demand a heavy price for a clean Brexit / Brexit has caused havoc already. Now parliament must save us / Keir Starmer: Britain’s last Remaining hope

Só o Parlamento pode reverter uma lei que ele próprio aprovou

ANA FONSECA PEREIRA 04/11/2016 – 00:59

A decisão do tribunal confirma que só o Parlamento pode reverter o que o Parlamento aprovou, explica Fausto Quadros, especialista em Direito Europeu da Faculdade de Direito da Universidade de Lisboa.

Fausto Quadros, professor catedrático da Faculdade de Direito da Universidade de Lisboa e especialista de Direito da União Europeia, explica os fundamentos jurídicos da decisão e argumenta que esta serve os políticos.

Como vê esta decisão do Tribunal Superior?
O tribunal limitou-se a aplicar o Direito Constitucional britânico. O que introduziu o Reino Unido nas comunidades europeias foi uma lei, o European Communities Act de 1972. O referendo não é vinculativo, não obriga ninguém. Ora, como o referendo não vincula, não afecta, nem destrói o Act de 72. Este só pode ser revogado por nova lei do Parlamento. Isto sabe-se desde a noite do referendo, os juristas disseram isso logo a partir do dia seguinte. Até que um tribunal vem agora dizer aquilo que toda a gente já esperava: o referendo não obriga, o Parlamento tem de intervir, e o Reino Unido só pode sair através da [aprovação] de uma nova lei.

Não tem então dúvidas de que esta decisão será confirmada pelo Supremo?
Não tenho dúvidas nenhumas, é a única decisão possível. Tenho até dúvidas de que o Governo vá recorrer da decisão. A primeira-ministra Theresa May já deu a entender que, tendo feito campanha pelo "Brexit", não quer o "Brexit", porque já viu as consequências, percebeu que de facto os britânicos não querem sair, porque estão arrependidos do referendo, e das consequências do referendo – que é os britânicos que estão fora do Reino Unido terem de voltar todos para o Reino Unido porque passam a ser cidadãos terceiros e deixam de ser cidadãos europeus, de ter direito a residir, residirão se os outros estados deixarem.

Em todo o caso haverá uma votação no Parlamento…
…Que dificilmente não será contra o "Brexit". Com os votos do Partido Trabalhista que é quase unanimemente a favor da União Europeia, com os votos da ala, maior ou menor, do Partido Conservador que é contra o "Brexit", e com o Partido Liberal que é a favor manutenção na UE, deverá aprovar a manutenção. A não ser que haja um terramoto, não me custa a admitir que a maioria do Parlamento vá confirmar o Act de 72 e dizer que o referendo não obriga a revertê-lo.

E os deputados estarão prontos a pagar o preço político?
E qual é a alternativa? Vamos supor que passa o "Brexit". Há negociações para um novo acordo. Esse acordo que venha a ser celebrado entre o Reino Unido e os outros Estados tem de ser aprovado pelo Parlamento britânico e pelos parlamentos dos outros Estados-membros. Qual é a alternativa? É o "Brexit" triunfar agora e depois não haver nada. Porque o Parlamento britânico, ou um dos parlamentos nacionais recusa o acordo sobre o novo estatuto do Reino Unido na União Europeia. O Reino Unido fica na pior das posições: não estar na União Europeia e não ter nenhum estatuto a ligá-lo aos Estados da UE.

E votando pela manutenção resolve também o problema da Escócia, que não vai levantar o problema de querer sair e continua no Reino Unido.

MPs will demand a heavy price for a clean Brexit
Theresa May’s EU exit course was set. A High Court ruling has thrown it up in the air.

By TOM MCTAGUE, ALEX SPENCE AND CHARLIE COOPER 11/3/16, 8:12 PM CET Updated 11/3/16, 9:15 PM CET

LONDON — The murky politics of Brexit just got a lot murkier.

On Thursday three senior judges did what Theresa May’s political opponents have struggled to do: put the prime minister on the back foot on Brexit.

By ruling that she doesn’t have the legal power to begin the formal EU exit process without parliamentary approval, the judges dealt a major blow to May’s plans for a tightly-controlled, clean withdrawal.

Downing Street insists it is pushing ahead with plans to invoke Article 50 in March and the prime minister will inform European Commission President Jean-Claude Juncker on Friday that her strategy has not changed.

The reality is that her Brexit timetable has been thrown up in the air.

The ruling adds significantly to the complexity and uncertainty surrounding a process that was already unclear and opens the way for parliament to demand concessions that May was not planning to give.

Lawyers at Clifford Chance, one of Britain’s biggest law firms, said there were now at least five plausible routes to Brexit as a result of Thursday’s decision — all of them politically fraught.

Mark Carney, the Bank of England governor, warned the court’s decision will add to anxiety about the impact on Britain’s economy.

The decision even rekindled talk of an early election in 2017. The prime minister has ruled out going to the electorate before the end of the current parliament in 2020, despite having a huge lead in the polls over the opposition Labour party. But she could now change her mind and seek a clear mandate for Brexit on her terms — making it less likely that parliament will defy her.

A spokeswoman for Number 10 said: “There shouldn’t be an election before 2020. This remains the PM’s view.”

Nothing stays the same

Until Thursday, those lost in the fog of Brexit were at least able to cling to two certainties: when the U.K. will leave the European Union, and how.

May insisted that her government had the power to unilaterally trigger Article 50, and that she wouldn’t put it to a vote of the House of Commons. The prime minister said she would invoke the clause before April, setting in motion a two-year negotiation between the U.K. government and the EU on the terms of the divorce.

Now, thanks to the High Court, even that is unclear.

Rejecting the government’s contention that it was within its powers to invoke Article 50, the judges ruled that only parliament has the legal authority to take Britain out of the EU.

The government immediately said it will appeal — and the U.K.’s Supreme Court was already primed to hear the case in December — but its chances of overturning the decision appear slim.

The High Court’s judgment was unambiguous, giving the government’s legal arguments short shrift — at first reading, it seems appeal-proof.

Let the horse trading begin

It seems inevitable that May will have to ask MPs for authorization by putting a bill on Article 50 before parliament.

That leaves open the prospect of pro-European and opposition MPs and peers trying to frustrate, delay or even derail the Brexit process — or at least demanding concessions from May on the terms of Britain’s withdrawal in return for pulling the trigger

Ultimately, May still holds a great deal of power.
Brexiteers complained that unelected judges were trying to subvert the will of the people. UKIP leader Nigel Farage warned there would be an uprising if there was an attempt to stop Brexit.

In a significant admission Thursday afternoon, Brexit Secretary David Davis said unless the High Court’s decision was overturned, a full act of parliament was now required to trigger Article 50. In other words, a simple motion will not suffice — both houses of parliament need to agree to Britain’s withdrawal.

It sets the stage for the most important parliamentary battle since the 1972 act taking Britain into Europe — and a constitutional crisis if MPs or peers refuse to give their assent.

Ultimately, May still holds a great deal of power. If parliament refuses to let her enforce the will of the people, she can call an election and get a new parliament.

Because of that threat, it is extremely unlikely that the government will lose a vote authorizing Article 50.

Although most MPs backed Remain, British politics has shifted so far since June 23 that many would consider it electoral suicide to be seen blocking Brexit when 401 of the 632 constituencies outside Northern Ireland voted to Leave.

The question, then, is not whether MPs stand in the way of Article 50 being triggered, but how much they will demand in return.

Once the government introduces the bill — which will be as tightly-drafted as possible to avoid troublesome amendments — any member of parliament can propose changes.

It will be up to the Speaker of the House of Commons, John Bercow, whether to accept the amendments for debate.

The opposition, for instance, might try to amend the bill to make membership of the single market a condition of Brexit. Would they win a majority for that? It’s unlikely but this is the political calculation MPs must make.

May could easily use a single market amendment as a stick to beat Labour MPs in constituencies that voted heavily to leave because of concerns about immigration.

But MPs could also push for an amendment authorizing Article 50 on the condition that parliament gets to vote on the final terms of the divorce. That would empower parliament and the soft Brexiteers considerably during the negotiation process.

Senior Leave figures said the expectation in Number 10 is that MPs will demand far more scrutiny throughout the process, empowering the “soft” majority and exposing the government’s hand in negotiations with Brussels.

“We think they’ll go lower than single market,” one senior Leave figure said of the MPs’ likely demands. “They’ll extract a price though — something that gives them extra tools in the fight. Process, debates on the floor of the House, oversight, that kind of thing. It’s more noise than light. What we are going to see now is even more noise — and noise means pressure.”

Brexit on hold

At the very least, this could add considerable delays to the timetable for Brexit.

Dominic Cummings, who masterminded the Vote Leave campaign, urged Euroskeptics to take a “deep breath” and focus on winning the battle in parliament.
Assuming the Supreme Court upholds the decision in December, and May then has to introduce a bill to trigger Article 50, it could take months for the Commons to haggle over the legislation before voting on it. Members of the House of Lords — unelected, fiercely pro-Remain and unbiddable — will also get their say.

At its heart this was never a political question for the judges — it was purely constitutional.

They were at pains to say they weren’t making a political point. “Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union,” they said.

Dominic Cummings, who masterminded the Vote Leave campaign, urged Euroskeptics to take a “deep breath” and focus on winning the battle in parliament, rather than engaging in “confused whining” about the court decision.

The judges had upheld the important constitutional principle of parliamentary sovereignty, Cummings tweeted. The government should drop the doomed appeal and concentrate on trying to “smash” the Brexit critics in the Commons, he said.

Former Attorney General Dominic Grieve also defended the decision. “Laws and statutes conferring rights on people passed by parliament cannot be removed without parliament voting to do it.”

In other words, what parliament gives, only parliament can take away – and vice versa. “That is what this question is about,” Grieve said.

That is also what Brexit was supposed to be about. Britain has always enjoyed irony.

Brexit has caused havoc already. Now parliament must save us
Polly Toynbee

The ruling on article 50 is a huge opportunity. It would not be anti-democratic to try to stop what many other countries see as economic suicide

A momentous constitutional decision was taken by the high court of England and Wales this morning. A prime minister’s absolute power to do what they like, when they like, regardless of laws and treaties, was struck down. Theresa May cannot tear up our right to be EU citizens without the authority of parliament. Those rights were bestowed by parliamentary votes in a series of treaties. She can’t high-handedly abandon them and trigger our exit from the EU without parliament’s agreement.

Judges, wisely, do not generally want to usurp the power of elected governments to govern. Laws made by judges are a poor substitute for those made by elected MPs in parliament. But this is a matter of the profoundest constitutional importance, with deep implications, controversial whichever way they had decided. They rightly pronounced that parliament is sovereign – which is what the Brexiters claimed we were voting on, until it no longer suited them.
What now? The government will appeal to the supreme court in December, though some suggest May should dash to the Commons immediately for a quick vote, before an as-yet hazy coalition of cross-party remainers has time to organise and solidify. If the appeal fails, will MPs galvanise? Leaving it to the unelected Lords is no answer.

There are times when MPs need to rise above their party interests, their own interests and the views of their constituents. That may risk being voted out, but they may earn more respect by standing up for the national interest as best they can determine: that’s what representative democracy is for. In times of war or national crisis, defending the country from grave error, at whatever personal cost, is their duty. Brexit is the greatest threat to national wellbeing since the war, and this will test the mettle not just of individual MPs, but of the nature and purpose of a representative democratic system.

How difficult and brave that is: Labour MPs are painfully mindful that 70% of their seats returned majorities in favour of Brexit. Raucous anger against any parliamentary attempt to let the country pause for thought is bellowed out daily by the Tory press denouncing all 48% of remain voters as an anti-democratic remoaning metropolitan elite. Stifling all experts just for being experts, intimidating even the Bank of England governor, Mark Carney, is a bullying demagoguery that paralyses many who should speak out. A non-binding referendum, voted on amid a thicket of utterly cynical lies and promises, cannot be a tombstone block to the judgment of MPs on this vital matter of national interest. It’s not anti-democratic to try to stop what so many other countries see as an incomprehensible act of economic suicide.

Why does the government fight so hard against what would almost certainly be a parliament that folded instantly on an article 50 vote? Because during such a debate they would have to bring forward some kind of plan for how they will negotiate Brexit. No such plan exists, because the split cabinet could not possibly agree even a vague outline to satisfy both Liam Fox and Damian Green. Even a wishlist of impossibilities would be impossible, with the demented John Redwood/Daily Express faction calling daily for an immediate crashing out, with no deals and no treaties.

Best news of the day came from a BBC interview with Lord Kerr, former head of the foreign office and ambassador to the US and the EU. It was he who drafted Article 50 and he says: “It is not irrevocable. You can change your mind while the process is going on.”

The pound soared following today’s high court news because markets are idiotic, shaped by punters second-guessing one another’s idiocy. This doesn’t suggest, alas, that Brexit is much closer to being reconsidered. Reality will take the pound back down, predicted to sink further with each step towards to the exit gate. Next year’s prices will rise, NIESR reckons, by 4%, hitting those who are “just managing” even harder.

Every day another bad effect is revealed before anything has even happened. Today reveals an acute labour shortage in the food processing industries, as east Europeans are reluctant to come here. The shrinking pound decreases the value of their pay, and they hear awful stories of racist attacks and abuse. Without actually leaving, we are already keeping EU immigrants away. The damage is beginning already.

The latest regreters are the £4bn curry house operators, who voted out. They were lied to outright, as Priti Patel and others told them fewer EU migrants would open the door to the chefs they desperately need and promised a points-based system to let chefs in. This has now been reneged on. There will be massive closures, they say. How naive could they be? A public stirred by Mail and Sun anti-migrant horror stories were made even more fearful of Muslim refugees pouring than of Poles: of course the government now says the screw is tightening and there will be no more Asian visas. Others too will find how badly they were lied to.

There is time for people to change their mind, and polls suggest opinion is on the move. The vote was narrow. But MPs can’t wait for public opinion to shift by itself. They have a role to play - as leaders not as followers. Today’s judgment tells them exactly that.

Once in a while, by mistake, Boris Johnson tells a truth: “Brexit means Brexit and we are going to make a titanic success of it”, he said last night at the Spectator awards. Yes, we are on the Titanic and he’s the captain. God help us. Can parliament help save us from him and the damage he has done before we sink?

Keir Starmer: Britain’s last Remaining hope
With Labour’s leader sidelined, the party’s Brexit spokesman has stepped into the spotlight.

By TOM MCTAGUE AND CHARLIE COOPER 11/4/16, 5:30 AM CET Updated 11/4/16, 7:11 AM CET

LONDON – Meet the real leader of the opposition.

Following Thursday’s bombshell High Court decision that forces Theresa May to get parliamentary approval before taking Britain out of the EU, Labour’s Brexit spokesman Keir Starmer is suddenly one of the most important figures in British politics.

Labour Leader Jeremy Corbyn is increasingly absent or ignored. In his stead, MPs are turning to the U.K.’s forensic former chief prosecutor as their last hope of serious resistance to a hard Brexit. Despite only being elected in 2015, what Starmer thinks about Brexit now matters. His ability to build and cajole parliamentary opposition to the government will shape Britain’s relationship with Europe for decades to come.

In the most comprehensive explanation of his position on Brexit to date, Starmer told POLITICO that Britain’s membership of the single market will have to “lapse,” that Labour will push for “the fullest possible” tariff-free access to European markets, and that any new deal with Brussels will require Westminster to have some control over who comes to work in the U.K.

Setting a course at odds with his leader, Starmer argued that immigration has been too high and said Labour must support “some change to the way freedom of movement rules operate” as part of the Brexit negotiations.

Starmer is also open to the U.K. leaving the jurisdiction of the European Court of Justice — the prime minister’s core demand — as long as another body is established to settle disputes between Britain and the EU.

In all, it suggests Labour is flexible on the practicalities of Brexit, but only within certain red lines, beyond which the party is not prepared to cross. “If she’s out, out, out then there’s no compromise,” Starmer insisted. A total, clean break from the EU, its single market and customs union is not acceptable to him. If May does not compromise, Starmer said he sees no possibility of consensus.

Starmer sounded prepared to play hardball in the upcoming skirmish over Article 50 in the House of Commons sparked by Thursday’s court ruling. He is adamant Labour has no intention of blocking Brexit in any vote, but is determined to exact his pound of flesh. “We have been pressing the government to disclose its opening negotiating strategy and we will continue to press for that,” he said. “The broad objectives have to be disclosed.”

The Conservatives have a working majority of 15 in Parliament, and some of their own vocally supported Remain and prefer a softer form of Brexit. While most MPs regardless of party accept that Britain will leave the EU, May doesn’t have a clear mandate for what that means. That opens the way for someone like Starmer to influence the process in the months to come by building coalitions across the aisles.

Labour’s Brexit spokesman said the government cannot expect MPs to “debate Article 50 in a vacuum” and expects the prime minister to publish a document setting out Britain’s opening position by January.

Starmer’s intervention points to an emerging political consensus — although far from universally accepted — on the central questions of Britain’s exit from the European Union. The battle, as he sees it, is no longer to keep Britain in the single market, to preserve free movement of people or retain the authority of the European Court of Justice over British law.

But to hear him none of this grants May a mandate for a “hard” Brexit and, within the parameters of a British political landscape upended by June’s referendum, Starmer intends to make sure that the prime minister’s negotiating hand does not go unchecked.

Understanding Brussels

Starmer, the son of a working class, Labour-supporting family, came into politics late. The 54-year-old rose quickly after his election in May 2015 to become one of Corbyn’s junior shadow ministers. He resigned after the EU referendum, arguing that Labour needed a new leader to guide the party through the Brexit negotiations.

He insisted that the opposition must not set its sights on the next general election but must focus on influencing discussions with Brussels that will shape the country for “decades.”

“If you look at Brexit, the future of this country is going to be determined over the next few months and years and the Labour party has to put in very effective opposition and challenge, both for the Labour party and for the country,” he said in his Westminster office overlooking the River Thames. “Simply setting out what a Labour government might do in 2020 is not an option on Brexit. It’s what the Labour party does right now that really matters.”

Despite being dismissed by the Euroskeptic former cabinet minister Iain Duncan Smith as a “second-rate lawyer,” Starmer is highly rated at the top of government and commands respect from many former Remainers on the Conservative benches. He is viewed as a more formidable opponent for the prime minister than many of Corbyn’s crop of inexperienced frontbenchers.

During his time as the U.K.’s director of public prosecutions between 2008 and 2013 he worked closely with May, who was home secretary from 2010. Politics aside, Starmer is fan of the prime minister — professionally at least. “She is clever, she is cautious and she knows that the language matters,” he said.

“It’s what the Labour party does right now that really matters” — Keir Starmer, Labour’s Brexit spokesman
On some of the fundamental parameters of the Brexit debate, Starmer accepts that Britain’s political climate has moved since June.

“Negotiation should start on the basis that there be some change to the way freedom of movement rules operate,” he said. “That’s a big ask. But that ought to be the opening position.”

The idea that Britain could retain full membership of the single market, as demanded by the Open Britain campaign supported by Starmer’s Labour colleague Chuka Umunna and other leading Remain voices, is now a moot point, he said.

“There’s been a discussion about whether one should aim for membership or access. At the moment our membership is because we’re a member of the EU. That membership will have to lapse,” he said. “That’s why I have used the phrase fullest possible access to the single market.”

May’s mistake, he argued, is her reading of Brussels.

By setting the specifics of immigration controls up as a red line in her speech to the Conservative Party conference in October, the prime minister risked shutting down compromise before the talks even began, he said. “The mistake the government is making is, from the outset, saying it is not even worth us trying. It is not even worth us having a discussion about this,” he added.

May’s other red line in her October conference speech was taking Britain out of the jurisdiction of the ECJ. This, even more than her stance on immigration, poisoned the mood in Brussels, Starmer said.

“They interpreted that as you want out of the single market and out of the customs union. Their analysis is straightforward: It’s a rules-based system. The ECJ is the adjudicator in a rules-based system. If you don’t want the ECJ, you don’t want the rules.”

Despite his support for Remain during the referendum campaign and his conviction that May doesn’t have a mandate for a “hard” Brexit, Starmer is convinced Labour must change its “state of mind” on the negotiations.
However, he believes May’s position is “shifting.”

“Her position hasn’t been consistent. It’s moved from: ‘way outside any rules,’ to ‘not binary choices,’ so you might be in a bit for some sectors, out a bit for others,” Starmer said.

As to who polices any future relationship between Britain and the rest of the continent, Starmer believes there has to be some body enforcing the rules – but it doesn’t have to be the Luxembourg court.

He points to the EFTA court that arbitrates on trade between Norway, Iceland and Liechtenstein and the EU. “Whether it’s the ECJ or some other body, it’s hard to see how you can make any agreement of an international nature without a clause in the agreement about how you resolve disputes.”

Eyes on the prize

Despite his support for Remain during the referendum campaign and his conviction that May doesn’t have a mandate for a “hard” Brexit, Starmer is convinced Labour must change its “state of mind” on the negotiations.

“We have a duty to accept and respect the outcome of the referendum on the 23rd of June,” he said. “We have a duty to fight for the best possible deal or outcome for the country … The role should be to hold the government to account, to challenge what they’re doing and to challenge it robustly, but also to bear in mind that what we want to achieve for the sake of everybody is the best outcome.”

Brexit will likely dominate British politics for far longer than the two-year negotiating period allowed by Article 50. “The idea that some have advanced that this can all be sorted out within two years is pretty far-fetched,” he said.

As well as the core issues of immigration and trade, new settlements will be needed on agriculture, fisheries, security, counter-terrorism, data sharing, environmental issues and “a whole host of other issues,” he added. “There will almost certainly have to be some kind of transitional arrangements.”

With Labour looking increasingly unlikely to enter government any time soon, Starmer could be forgiven for ruing his decision to hang up his barrister’s wig for the hard slog of opposition.

He’s having none of it.

“I’m really glad to be in,” he insists. “To have the opportunity to hold the government to account on some of the biggest decisions for probably 50 years is an incredible privilege and I’m very glad to be in doing that.”

Speak to many Labour MPs, and so are they. No wonder they see him as a leader in waiting.

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