Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

___________________________________
*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

Mike Kopp is a perfect fit for Colorado

Mike Kopp, candidate for governor, has my endorsement. Here's why — Kopp specifically came to Delta County to announce his candidacy last October. He'll be back in Delta tomorrow hosting a meet and greet for all who'd like to visit with him. More than just caring about Delta County, Mike Kopp knows rural Colorado.

At a young age, Kopp was a championship bull rider. How many leaders have actually taken a "bull by the horns?" — Kopp has! He grew-up on his family's ranch in South Dakota before joining the U.S. Army. In the military, Kopp once again demonstrated his fearlessness and was selected to be an Army Ranger in the 82nd Airborne Division. Kopp served on the ground in Iraq during the Persian Gulf War and was highly decorated for his gallantry and acts of valor.

Kopp then worked as a "smoke jumper" throughout the American West, fighting a different enemy — wildfires. During the non-fire season, Kopp was a U.S. Border Patrol agent helping to keep illegals out of the U.S.

Colo GOP Governor Candidate Mike Kopp

Through all this "toughness" Mike Kopp has a heart of gold and became an ordained minister. He's worked as a chaplain helping those with mental health concerns and spiritual needs. Kopp ultimately needed his own help when his wife lost her battle with cancer in 2011. He had just been re-elected to the State Senate and named minority leader. Kopp opted to step down from public life to be with his three young children in their time of need.

Kopp is currently part of the management team for Intermountain Rural Electric Association, Colorado's national Republican committeeman and a loving father (who has recently remarried).

From a policy perspective, Kopp is very conservative, having been the original author of the state's opt-out plan regarding the Affordable Care Act ("Obamacare"). Kopp has been endorsed by the Rocky Mountain Gun Owner's Association, and from having been around him, I can tell you, he is the responsible type who takes firearm ownership seriously. Additionally, Kopp was the last legislator who proposed serious tax cuts and reductions in the size of government. Since Kopp left the legislature, spending has continually increased and the number of legislators with ranching, military, or business experience has shrunk to countable on one hand.

Mike Kopp is a perfect fit for Colorado and I am pleased to be supporting his candidacy for governor.

__________________________________
M. Soper, "Candidate Mike Kopp is a perfect fit for Colorado" 26 Feb 2014 Delta County Independent (Delta, Colo) p.2A  http://deltacountyindependent.com/index.php/opinion/soapbox/10352-candidate-mike-kopp-is-a-perfect-fit-for-colorado accessed 18 March 2014

New Colorado Trademark

Hickenlooper's new Colorado logo

The Hickenloop Administration’s effort to replace the Colorado State flag and seal with a trendier brand / trademark circumvents the reason for emblems of state. The current state trademarks – the flag and seal – identify and distinguish the source of state services / goods for the public.

Creating more official trademarks to represent the State of Colorado blurs the distinction of which logo /

mark represents which source. In other words, more marks confuse the public about which one actually represents the State of Colorado.

Yesterday I was at the US Open Tennis Championships in New York and saw a man with a ball cap and Colorado flag on it. I asked him if he was from Colorado, as it is always great to see fellow Coloradoans when outside the state. He told me he had just spent a week holidaying in Aspen and thought we had a really cool flag design.

Colorado state flag

When I saw the red “C” with yellow circle and two strips of blue on a field of white I knew that mark represented Colorado. I also knew it represented the State of Colorado and if I saw the flat on letter head, I’d pay close attention. Adding a new trianglized-licence plate looking trademark to the state’s intellectual property portfolio only serves to confuse the general public and fails the state’s real objective, which is to market the state to tourists, businesses, and investors. 

Funding the government: taxes

Federal Personal Income Tax

Tax Bracket	Married Filing Jointly	Single
10% Bracket	$0 – $17,400	$0 – $8,700
15% Bracket	$17,400 – $70,700	$8,700 – $35,350
25% Bracket	$70,700 – $142,700	$35,350 – $85,650
28% Bracket	$142,700 – $217,450	$85,650 – $178,650
33% Bracket	$217,450 – $388,350	$178,650 – $388,350
35% Bracket	Over $388,350	Over $388,350

*Standard deduction: $5,950

State of Colorado Personal Income Tax

4.63% of Federal taxable income

Medium household income (Delta County, Colorado)^[1]

$40,451

How much will you owe if you earn the average in Delta County?^[2]

	High school Graduate (35% of Delta County)	Bachelors Degree (11.71% of Delta County)	Masters Degree (3.6% of Delta County)	Doctoral or Professional Degree (1.8% of Delta County)[3]
Gross monthly income:	$2,402	$3,772	$4,806	$6,083
Gross yearly income:	$28,820	$45,260	$57,670	$73,000
Standard deduction:	($5,950)	($5,950)	($5,950)	($5,950)
Taxable income:	$22,870	$39,310	$51,720	$67,050
Colorado income tax liability (4.63%):	($1,059)	($1,820)	($2,395)	($3,104)
Federal income tax liability 10% bracket:	($870)	($870)	($870)	($870)
Federal income tax liability 15% bracket:	($2,126)	($3,998)	($3,998)	($3,998)
Federal income tax liability 25% bracket:	(-)	($990)	($4,093)	($7,925)
Net income (after taxes):	$18,815	$31,632	$40,364	$51,153
**After personal income taxes, money is spent on: food, mortgage/rent, utilities (ie water, sewer and electricity), insurance (ie health, automobile and home), gas, maintenance (ie car/truck, home), clothes, et cetera. In Delta, a sales tax of 7.9% is assessed on most purchases.

---

^[1] Combination of what everyone under one roof earned in Delta County during FY 2010. There are 30,900 people who live in Delta County. The current unemployment rate is 10.9% and 53% of Delta County is in the workforce.

^[2] Digest of Educational Statistics, September 2010, adjusted for 2010 US census findings in Delta County, State of Colorado, See: http://nces.ed.gov/programs/digest/d10/tables/dt10_391.asp for full table. Accessed 8 May 2012

^[3] Per cent of Delta County’s population, who has attained a certain educational level, see: http://www.citymelt.com/county/Colorado/Delta-County-CO/Education.html. Accessed 8 May 2012

Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

Good stewardship starts at home, not in Washington

Good stewardship starts at home, not in Washington. The citizens of Delta approved a bond ballot issue, in November 2009, to raise the city’s indebtedness ceiling to $30 million, with repayment of that debt maxing out at nearly $69 million. These new indebtednesses will be generated from “the issuance of revenue bonds from the city-wide capital improvement fund.” A bond is an indebtedness and an indebtedness has to be re-paid.

Proponents of Delta’s Main Street bypass suggest the constructing of a multi-million dollar, 1.6-mile long road and bridge, will provide an alternative route for semi-trucks, allow emergency and police an entrance to North Delta during times of train delay, and provide faster access for consumers wishing to take their dollars from Main Street to Montrose or Grand Junction. The drive for urgency from the bypass supporters is a November State-wide ballot initiative that if passed, would prohibit municipalities from bonding beyond a 10-year period. The revenue bonds carry a 20-year payback time.

The voice of good stewardship, fiscal responsibility, and respect for the economic times we live must be supported. Liberal spending and overzealous borrowing, coupled with a downturn in the economy is what has gotten this county in the mess it currently faces. For example, last week’s Delta County Independent reported, Delta’s unemployment is once again on the rise (now above 8%), foreclose rates continue to go up (1 every 2 days), and actual real estate values are going down (mean value down over $25,000 per home). The Delta School District has been very fiscally responsible approach by trimming their fat and eliminating 17 FTE teacher positions. The North Fork coal mines, have about a 20-year max load left, are struggling to survive governmental bureaucratic regulations.

The economic signs indicate Delta’s municipal sales tax revenue will go down significantly, thus rendering the debt servicing schedule dubious at best. One of the provisions included in the voter approved bond ballot issue was that, “no increase in city taxes to pay such debt.” As tax revenue deceases, Delta’s debt service remains a constant, thus requiring the city to decrease services, increase fees, or privatize such tax draining entities as the golf course. None of these alternatives appears to be a viable solution, thus a future ballot issue should be expected.

Realistically, Delta is looking at $27 million in capital construction costs and a debt service to tax payers of at least $30 million over a period of 20-years. Proponents say some of this cost can be alleviated through DOLA grants, city reserves, and cuts in government spending. This argument is defeated by the mere fact that State grand funding has been denied, city reserves are low due to “progressive” spending, and current council has shown little inclination to practice fiscal responsibility.

The bond ballot issue specifically states the new debt is “for the purpose of enhancing safety conditions for those persons parking and shopping downtown”. The proponents of the Main Street bypass fanatically use the analogy of a semi-truck carrying oil, wrecking in downtown Delta, while a train is crossing Main Street, and causing a catastrophic fire. The analogy is rooted in such scare tactics that those perpetrating it should be ashamed. The reality couldn’t be closer to the truth. Since Delta’s founding in 1882, there have been no major trucking accidents of the scope and calibre which proponent fear. Semi-truck drivers are some of the safest on the road, as high industrial safety require drivers to maintain a clean CDL. A simple solution to the problem surrounding semi-trucks and Main Street would be to pass an ordinance requiring all vehicles over a certain weight to remain in the left-hand land between a certain set of mile-markers. A few signs and the force of law would keep trucks away from store fronts and cars parked on Main Street; maintain a constant, safe and efficient flow of traffic, along with costing the tax payers a few thousand dollars, instead of several million dollars.

A few years back a home burned to the ground while a fire truck was caught waiting for a train. An event like this, while unfortunate, is a fact of life. Governments seek to eliminate all risks to create a perfectly safe world – the concept of “too big to fail” is a perfect example of a government program deemed to eliminate risk a horrific consequences. Bad things happen to good people and that is life, however mitigation of risk through safety measures should be within our public means. A less costly alternative to the ones the proponents advocate is a fire and ambulance sub-station in North Delta. Another idea advanced is to partner with the hospital to offer medic-vac services which would be able to responder faster than an ambulance, with an annual cost equivalent to the controlled maintenance of a bridge and debt service. Safety concerns are a very real issue and should not be ignored. Conversely, economic considerations of rising unemployment, lay-offs, and businesses hardly making a profit, along with predicted declines in tax base revenue should be acknowledged.

We cannot continue to spend more than we make (this is especially true for governments). The modified Main Street bypass plan includes 2-lanes, instead of 4-lanes; 4 stop lights, a bridge over the railroad tracks and is 1.6-miles in length. No data exists on how much “safer” Delta citizens will be with a multimillion dollar debt. Tough economic times call for out-of-the-box thinking to produce creative solutions. This letter has attempted to demonstrate how good stewardship can start right here in Delta and be as a beacon on a hill to show Denver and Washington how problems can be tackled and solved without placing future generations under the burden of an indebtedness which must be repaid.

See: Delta County Independent

A Conversation with five Republican Governors

Not many Americans are privy to a conversation among five governors from across the United States, however on Thursday, 16 July 2010, I was a listening member of a discussion which was completely non-politically-correct, policy based, and void of stump speech rhetoric. The event hosted by the Aspen Institute and the Republican Governors Association, featured Mississippi Gov. Haley Barbour, Hawaii Gov. Linda Lingle, Virginia Gov. Bob McDonnell, Minnesota Gov. Tim Pawlenty, and Texas Gov. Rick Perry.

The conversation came just hours after British Petroleum (BP) announced they had finally stopped the flow of oil into the Gulf of Mexico. Gov. Haley Barbour said the cap is only to be seen as a temporary fix and that a permanent solution is from the relief wells. All five governors agreed Pres. Obama’s ban on off-shore drilling was bad for the gulf state’s economies. Not only has the oil leak damaged the tourism, fishing, and related industries, but the ban on drilling has resulted in the laying off of thousands of workers employed by oil & gas companies. The analogy of ceasing all air travel following a major airplane crash was used to describe the logic behind the oil drilling ban.

Texas Gov. Rick Perry was dressed all in black with a t-shirt and a leather sports coat. The lettering on the t-shirt read, “Marshall Law”. Gov. Perry jokingly commented he didn’t think a shirt declaring succession would fly. Gov. Perry went on to say it was the name of a new band in Texas and that he was wanting to give them a little regional publicity as he is all about helping businesses succeed and become profitable. This allowed Gov. Perry to segue-way into talking about how competition and business are the driving forces of America.