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By the editor, May 9 2019 02:22PM

Should the result of the 2016 EU referendum be honoured, regardless of the consequences? If not, what consequences might allow the UK not to honour it? What does “honouring” the result actually mean?


The reason it’s worth asking these questions is that there’s an assumption – among Remainers as well as Leavers – that the result should be honoured. But it’s not obvious what this assumption is based on. Some of the possible reasons for it, and some of the objections to it, are set out below.


Parliament voted for it, the Government promised to implement it


Parliament voted overwhelmingly in favour of calling the referendum: by 544 to 53 in favour of the principle of a referendum, and by 316 to 53 in favour of the final version of the bill, which included the wording that appeared on the ballot paper. In case anyone has forgotten (and some people appear to have done), the question was:


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


Legally, of course, the referendum result was advisory not mandatory. But the combination of other circumstances led to a widespread assumption that the result was effectively mandatory. This included in particular a promise by David Cameron’s Government that the result would be implemented.


The result was fraudulent


Those Remainers who no longer honour the result often take this position on the basis that a) the Leave campaign peddled lies, and/or b) the Leave campaign broke the law, and so the result was invalid.


Legally, there’s nothing in these points. The first of these provides no legal basis for invalidating the result: electors are left to judge for themselves the accuracy of political campaigns. The second was considered in detail by the Court of Appeal, and rejected as having “no evidential basis” and being “clearly untenable” (The Queen on the Application of Susan Wilson and others v The Prime Minister [2019] EWCA Civ 304 paras 42 and 43).


It remains a point of view. I don’t agree with it myself. We all know that political campaigns are dishonest, and the dishonesty here was pointed out at the time. The Remain campaign was not itself beyond reproach, for example stating that an emergency budget would be needed immediately after the vote to prevent the economy from imploding. The Court of Appeal's reasons for rejecting the view that the breaches of the law by leave campaigners affected the result are compelling, whatever your view of the legal issues.


Clear but not overwhelming – the Soft Brexit compromise position


I was in this camp. It honours the result, but acknowledges the lack of clarity in the question that was answered. It considers that the closeness of the result, splitting the voting public 52:48, gives a clue as to how the question should be more precisely answered: implement a Brexit that would be most acceptable to Remainers. Something akin to a Norway model looked sensible.


A problem with this is that the Northern Ireland issue makes a straightforward Norway model unlikely if not impossible. Finding another Soft Brexit model that will work and could get through Parliament also looks unlikely. A further, perhaps more terminal, problem is many Leavers now regard any kind of Soft Brexit as no Brexit at all. It then becomes hard to persuade Remainers to support something that even Leavers don't want. There seems no realistic chance at the moment that a Soft Brexit would be democratically acceptable.


Another referendum


There’s the argument that we should respect the result in 2016, but acknowledge that it only provided part of the answer: we need a further vote now that the position is clearer on the options for leaving.


Proponents of another referendum are invariably Remainers, who expect one of the options on the ballot paper to be to remain. It seems to me a confused position. On the one hand it can be seen as dishonouring the result, given that only a short period of time has elapsed since the country voted to leave. Honouring the result may at least require the UK to leave before offering the electorate the chance the rejoin. On the other hand, it confers some democratic legitimacy on the 2016 referendum, by requiring another referendum to overturn it (and of course Leavers say, if there can be another referendum after Remain lost the first, why shouldn’t there be a “best of three” – it seems to me a fair argument). Furthermore, which Leave model or models should appear on the ballot paper? Excluding certain models (such as a no deal exit) may mean some Leave voters are effectively disenfranchised for the second vote, even though they won the first round.


Let Brexit wither and die


This looks the likeliest option at the moment, though few people openly advocate it. It may be that Parliament continues to disagree on any means of leaving, though it supports some form of leaving in theory, and the EU continues to agree to extensions to Article 50. It would mean dishonouring the referendum result but not doing so openly. The uncertainty would continue to damage the UK economy and its standing in the world otherwise. But after a few years, perhaps the issue becomes less potent, and it’s officially or unofficially dropped.


Political imperative, moral imperative?


I think it’s worth considering what “honouring” means. It suggests a moral imperative, rather than simply a political imperative. It’s undeniable that there is or has been a political imperative to press on with implementing some form of Brexit. As mentioned above, the advisory nature of the referendum is widely regarded as a legal technicality. People were promised that the result would be implemented. Brexit continues to dominate political discourse. Both main political parties claim to want to implement it. Many people would get very angry – even angrier – if Brexit was cancelled.


I don’t doubt any of this. But what of the moral dimension to this: is there a moral obligation on us as citizens, or MPs, to agree to Brexit being implemented?


I think I used to think this, though I’d not articulated it in such a way. This was partly guilt: having voted Remain, and lost, I felt a grudging sense of obligation to toe the line that Brexit should happen, even though privately, slightly shamefully, hoping that it wouldn’t.


But I can’t now see that there’s any reason for this. The referendum, based on the question posed on the ballot paper, should never have been held. That wasn’t so obvious at the time. It has become clear in retrospect. A referendum result can only provide a deliverable instruction to Parliament if the instruction is clear. We now know quite how unclear the instruction was. There are many varieties of leave, and none were specifically endorsed by the electorate. To take just one example, there was no promotion of a “no deal exit” by Leave campaigners, and no suggestion by any politician that such an exit was being considered. Yet now many Leavers claim that this is what a vote to leave actually meant.


The fact that the Government at the time promised that the result would be implemented may, again, have political force. But it has no legal force, and has no moral significance as far as citizens or MPs generally are concerned. In any event, that Government is no longer in power – we have since had a general election.


And it is worth once again considering the advisory nature of the referendum. The fact that politicians and others have distorted this so that it’s become generally accepted as being a technicality or forgotten doesn’t alter the legal fact. Parliament made legislation that resulted in a legally non-binding referendum.


Ah, but Parliament voted overwhelmingly to trigger Article 50, didn’t it? And didn’t most MPs stand on manifestos that supported Brexit?


Yes, but Parliament can change its mind. It can choose to revoke Article 50, or call another referendum. A Government may be under a political obligation to deliver its manifesto, but MPs aren’t under any duty to vote accordingly. MPs are also entitled to change their own minds, and indeed we ought to hope they will do so if they become aware of facts that undermine their original views. This is representative democracy.


The mess in summary


Unlike an election, the referendum didn’t give a victorious party a mandate to push through the result of the vote. Accordingly, no one has direct responsibility for it. Although the current Government has taken on that responsibility, it doesn’t “own” the vote. Accordingly, others have laid claim to representing the “will of the people”. Unlike a policy proposal in a manifesto, the referendum result won’t simply live or die with the Government. There is also no defined or agreed shelf life for it. It is partly this feature of referendums that makes them dangerous to democracy, and why they should be used sparingly, and carefully.


The vagueness of the referendum question was exploited in the referendum campaign. As the designated campaigner, with the largest resources, Vote Leave became the face of the Leave campaign. Its strategy was considered brilliant by many, partly because it managed to avoid pinning its colours to any particular leave option. It made the vague promise that the UK would “take back control” of its money, borders and laws, while also indicating that the UK would stay in some form of single market, and managed to keep socialists, nationalists and free marketeers inside the same broad tent. It might have been brilliant at winning the campaign (or maybe it was just being pragmatic), but the strategy has made implementing the result even more difficult.


The politics of Brexit is at an impasse because of the vagueness of the referendum question, and what resulted directly from it. Even if a form of Brexit was achieved, it would hardly satisfy anyone, and would infuriate many. The deal agreed by the UK Government was not only rejected repeatedly by Parliament, but is unpopular with many Leavers, many of whom consider it to be “Brexit In Name Only”, and worse than staying in the EU (30% of Leavers thought that MPs should have rejected the deal in March, while 49% thought they should vote for it, according to YouGov – and I expect the deal is becoming even more unpopular now). The EU aren’t going to offer any other deal that’s substantially different. The no deal exit favoured by many Brexiteer politicians involves negotiating a new deal, which simply takes us back to square one. A no deal exit that is based on no deal ever being struck, and relying on WTO rules only, is too extreme for mainstream politicians, and even for the Brexit Party. Among established parties, only UKIP supports this. But even if politicians were elected who pushed forward with this, it would require negotiations and compromises with various countries, not just the EU bloc, in order to keep the UK functioning, and that would lead to similar howls of betrayal from the hardcore Leavers, of accusations of selling our sovereignty, and the cycle would be repeated – or such politicians would be forced out, because everyone else would be appalled at the chaos this had unleashed.


So while it’s tempting to take the position that Brexit must happen for the sake of democracy, the political reality is that there is no form of Brexit that will satisfy a majority, or even a significant minority, of people. In which case, how would democracy be served by pushing on with some form of Brexit, if people don’t want it, and there’s no principled reason to do it either? Democracy was damaged by the referendum question, not by a failure to implement the result.


So what’s the solution?


As most people agree, there are no easy options now. The referendum has been extremely damaging, and recovering from it won’t be easy.


The political realities may require the UK to pursue Brexit somewhat longer. Provided the other EU countries agree, we could continue to extend Article 50 for some time yet. Parliament and the Government could continue to pretend to put some effort into finding a solution. In the meantime, it is possible Brexit could happen by accident (perhaps if France wants us out). Otherwise, we could stay in the Brexit antechamber until something forces the issue. That may be the least worst option in the short term.


But aside from the political realities, my conscience is clear: I think we should revoke Article 50 as soon as possible, and simply treat the referendum result as a constitutional aberration. Political parties would be free to campaign for Brexit in the future. There is bound to be a big shake-up of political parties over the next few years, and quite likely a new party or coalition will emerge with significant support that is overtly nationalist. At some point there could be a Government with a proper democratic mandate from a general election to implement Brexit – having decided on a particular form of it that could in fact be implemented, if that can ever be found.


I voted Remain – I wish I hadn’t now – I shouldn’t have voted at all. But however the country goes about trying to repair the damage being caused, I hope that one lesson learnt will be that we should never hold a referendum like that again.


By the editor, Apr 17 2019 10:59AM

Two key dates emerged in the Brexit saga: 29 March and 12 April 2019. Having passed both without leaving, the chances of any Brexit happening at all decreased significantly.


As those dates drew nearer, speculation grew about the possibility of revoking the UK’s notification that it was leaving the EU under Article 50.


In March and April, several distinguished twitter lawyers - @davidallengreen, @SpinningHugo, @ProfMarkElliott - stated that any legislation to revoke Art 50 must be passed quickly. There was a danger, they suggested, that any legislation introduced in Parliament to revoke couldn’t get passed in time before the Art 50 period expired (originally 29 March, then 12 April). But why was this?


The assumption was that no further extension to Art 50 could or would be made to allow for the passage of this legislation. But is there any legal basis for that assumption? If so, it would have been helpful if this had been spelled out.


Given that another “cliff edge” approaches at the new expiry date of 31 October, and there is the possibility (however remote it may seem at present) that the UK may wish to revoke at that point, would it be the case that the legislation would have to be rushed through then?


I can’t see what the legal basis for that view is. Article 50 doesn't state what extension is for. Under Art 50(3), the state concerned simply ceases to become a member after the 2 year period "unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." This wording doesn't exclude extending for revocation. So on a plain reading of this provision, there is no reason why there shouldn’t be an extension for the purposes of revocation.


Could it be argued that, nevertheless, the underlying purpose of extension is to secure a deal, thereby excluding extension for revocation?


That seems a weak argument, unless there was extraneous evidence to back it up. That is partly because revocation is accepted to be an option once the Art 50 notification has been made. The case of Wightman and Others v Secretary of State for Exiting the European Union demonstrates that. So why should Art 50 be read as preventing a member state from staying in the EU where the EU wanted an extension to achieve that? Any such extraneous evidence (for example, indications of what the intention of Art 50(3) was at the time it was drafted) would have to be clear and powerful to persuade a court that it would be unlawful for the EU to extend Art 50 in these circumstances. No such evidence has ever been produced as far as I am aware.


Of course, there may be political reasons why an extension wouldn't be granted. The two reasons that appear possible are: 1) the EU doesn't consider the UK is serious about revocation; or 2) one or more EU members would prefer the UK to leave.


Regarding 1), similar considerations apply to revocation as to any other statement of intent by the UK (such as passing a deal, or arranging a referendum). Why would revocation be any different? If a bill providing for revocation had, for example, passed the first stages of the legislative process in the Houses of Commons and Lords, why wouldn’t the EU grant an extension to allow Parliament to complete the process? Especially given that the alternative would be the disruption caused by a no deal exit, which none of the other EU states want.


Regarding 2), is there sufficient evidence of this? There are certainly reports of such sentiment, e.g. from the French. And it is true that extension requires unanimity, so one state could veto such an extension. However, collective pressure can be, and clearly already has been, exerted. In any event, the evidence that France or any other state would seek to prevent the UK the from staying (especially if the alternative was a no deal departure, with particularly damaging implications for Ireland) seems fairly scanty so far.


Finally, it's possible that Parliament could wish to revoke and the Government sought to prevent it, and attempted a no deal exit. But the current Prime Minister has said that she wouldn't override the will of Parliament regarding leaving without a deal, and appears to be acting accordingly. A future, more hardline Brexiteer PM, may well emerge of course, given the current state of the Conservative Party, and it is quite possible that such a PM may wish, or may feel pressured, to leave without a deal. But a Government that acted to prevent an extension in these circumstances would inevitably be challenged in court. It would also face, and almost certainly, lose a no confidence vote in the House of Commons. Under the Fixed-term Parliaments Act 2011, the Government wouldn’t necessarily fall immediately in these circumstances, but it would be on borrowed time. Would it make political sense for a PM to press on regardless in those circumstances, precipating a likely general election at a time of constitutional and economic crisis? Would the civil service support a Government that was acting in such a way? It may be also that the EU wouldn't accept that the "UK" (as represented by a PM acting contrary to the wishes of Parliament) had refused to agree an extension in these circumstances. The issue may end up being resolved in the courts.


But the latter issues are matters of speculation, as to whether an extension would be granted. Going back the first point, is the any basis for the assumption that an extension could not be granted, as a matter of law? No argument has been put forward to justify this.


If the argument is in fact a political one, it would be still be worth fleshing out the reasons for it, particularly if this concerns the possibility that the Government might wish to prevent revocation and extension that had the explicit support of Parliament. It would be interesting to hear the views of such commentators on whether there are circumstances in which the Government could achieve that.


By the editor, Nov 21 2018 04:34PM


At 585 pages, of what presumably must be dense legal text, I’m not convinced it’s worth the time of any non-expert actually to read the Withdrawal Agreement. I’ve certainly not convinced myself. I read dense legal texts for a living, and I like to do other things in my spare time. In order to make sense of something like this I’d probably have to devote a week’s leave to it – sacrifice a holiday, and arrange for someone else to look after my children. It’s not appealing. How many people have actually read it? Many politicians clearly didn’t consider it was worth reading before passing judgement. Already there are polls out on whether people back it or not. Most people of course aren’t interested in it at all, let alone have any interest in reading the thing. Not that they – or I – are likely to understand it properly even we did try to read it.


But it feels like the sort of thing one ought to take a view on. It could be momentous. Proceeding with the deal may set a course that will have huge implications for the country for decades to come. Rejection of the deal could lead to a second referendum or a no deal exit. What would I do if I was an MP?


Fortunately, there are plenty of people with the relevant expertise who have read and summarised the WA, and provide sufficient ammunition for amateur armchair pundits like me to give it their best shot. On that basis, what is the average Remainer to make of it? There seem to me two issues to face up to. Firstly, there are matters of principle. Secondly, there are the practical considerations. I think there's a tension between the two.


The principled response.


A simple Remainer response is, of course, to reject the WA because it takes us out of the EU. A more nuanced approach is to acknowledge that the result of the 2016 referendum and Parliament's subsequent decisions obliged the Government to seek some sort of deal to exit the EU, and consider whether the WA does this in a way that is, on balance, less damaging to the UK than other realistic options. For example, does the WA make a soft or hard Brexit more likely? Does the WA rule out either of these, or rule out rejoining at a later date?


The tenor of the agreement appears to indicate a direction of travel: towards something similar to the Customs Union, but outside the Single Market, albeit seeking to maintain close regulatory alignment in certain areas. So on the face of it, a hard-ish Brexit (though I say that as a Remainer – many Brexiteers think of it as soft). But what the WA purports to aspire to, and what actually results, are not necessarily the same. There is provision to extend the transition period, which surely would in fact happen. There seems no reason why further extensions wouldn’t happen, and the transition period may in fact turn out to be more or less permanent. If a trade deal is ever made, it could look very different than these current aspirations suggest - in the many years hence it will take to negotiate. There is a majority in Parliament now, and likely in the future, for a soft Brexit over a hard Brexit. Polling indicates a similar view among the electorate. Businesses and markets exert pressure in the same direction. Eventually there is a good chance that such forces, and the realities of actually having left the EU, would overcome the party political pressure within the Conservative Party to journey any further towards the mirage of Singapore-on-Thames.


So there are reasons of principle to support it. But there also appear to be difficulties. The main one being, as Roland Smith has pointed out, that the WA appears designed to end free movement. There seems to be broad political consensus on that (despite the preference for soft Brexit). So it’s quite feasible that such an aspiration becomes a genuine red line in any future relationship with the EU. That makes an EFTA-style soft Brexit difficult if not impossible. It also seems to me highly objectionable in itself, in economic terms, in human terms, and in wider political terms. I doubt in fact that the electorate are that bothered about free movement, even if they are bothered about immigration, and it doesn’t seem to me that there’s any democratic imperative that needs to be met.


So there could quite clearly have been a significantly better WA – one more open to a soft Brexit, which would have had the benefit of being more respectful of the narrow result of the 2016 referendum, and more likely to start healing the wounds it’s left behind. So as a matter of principle, I’d be inclined to reject the WA on offer.


The practical response.


The options appear to be: 1) agree the WA, 2) renegotiate the WA, 3) leave without a deal, 4) delay the Article 50 exit date and have a general election or second referendum to decide the matter afresh.


Option 2) isn’t really an option because there isn’t time.


Option 3) will happen by default if nothing else happens, and so stands quite a good chance of happening.


Option 4) depends on Parliament (and, probably, on the EU agreeing).


A general election looks unlikely because the Conservative Party and DUP are unlikely to vote in favour of allowing conditions in which Jeremy Corbyn could become Prime Minister. As matters stand, a new Government, led by either Jeremy Corbyn or a new Conservative leader, would still seek to push through Brexit, and it’s uncertain what type of Brexit that would be.


Neither the Conservative nor Labour front benches want a second referendum, but it’s possible there would be enough cross-party support for it in order to avoid a no deal exit. But even if there was a second referendum, it’s impossible to say at the moment whether Remain would even be likely to win (the polls may be tending slightly that way – but they did before of course, and don’t tell the whole story). Plus, I’m one of those Remainers who opposed a referendum on principle before. I’d find it difficult to support another one now, just because I don’t like the result of the first one.


In any event, the chances of option 4) resulting in remaining or a soft Brexit look difficult to call, but probably slim. The chances of option 4) resulting in some form of disorderly Brexit or another variation of chaos look fairly high.


Principle or pragmatism?


I don’t like the feeling of being bullied by the threat of chaos into backing an agreement that looks worse for the country than it could and should have been. I could be persuaded by those with more expertise than I have that it’s worth sticking up for that principle and seeking alternatives. But the prospect of a no deal exit is terrifying. It’s not just the 8% reduction in GDP that’s been predicted. It’s not even the delays at Dover and the shortages. The country would be on its knees in both senses, begging for favours from the EU to secure a sequence of emergency mini-deals, and desperate to seek trade deals on whatever unfavourable terms are offered by anyone else. I recall the fuel price protests in 2000, and the panic that resulted – and think of that multiplied many times over. It’s the real prospect of chaos, of the multiple unforeseen consequences of something the country is completely unprepared for, led by clueless politicians, possibly at some point including Jeremy Corbyn, with his dreams of Venezuela-on-Thames, while the far right gains traction on the streets.


If the choice really is this bad deal or a no deal, I’d take the deal.






















By the editor, Jun 7 2018 11:47AM

The Government is committed to securing the best possible Brexit for the UK.


But we realise this is a complex business, and not always easily understood. We have been contacted by a number of people who voted to leave the EU, expressing some concern that things weren’t necessarily panning out the way they expected, and asking for updates on progress. Some Frequently Asked Questions, and our answers, are set out below.


1. Why don’t we just bloody well get on with it and leave?


- Believe us, very sincerely on this point: we are doing this, in fact we’re doing very little else, and we will be doing very little else, for years and possibly decades to come.


2. We voted to get the same benefits from the EU, with fewer costs: is that still going to happen?


- Not exactly. You’ll get rather significantly fewer benefits, with slightly greater costs.


3. Will we get more control of our borders?


- To some extent. There will be a lot more customs officials than before.


4. But we will be able to reduce immigration?


- Yes. This is a big win. We won’t actually be implementing any new measures on this, but there will be no need: our slowing economy and the hostile environment we’ve created for foreigners has already ensured a reduction in those wishing to come here, and the good news is this will self-perpetuate: lower immigration will further worsen our economy, so even fewer people will want to come here.


5. Will we be stopping the European Court of Justice telling us what to do?


- Absolutely. It will be the UK courts who’ll now be telling us to obey the ECJ.


6. Will we be reducing all that red tape from Brussels?


- Yes, significantly. A lot of that red tape will be manufactured in the UK from now on. In fact, there will be a lot more of it, so that’ll be more British jobs for British workers, especially for those with law degrees.


7. But what about all the existing EU law – when do we get rid of that?


- No, we’re keeping that. It’s just that we’ll be writing the new laws ourselves. Well, copying the EU laws, but using our words. At least, that’s our ambition in the negotiations.


8. Can we still go on holiday to Europe just like before?


- Yes, more or less. But probably less. You may want to factor in longer journey times, given the delays at ports and airports. It’ll continue to be a lot more expensive, of course, because of sterling’s depreciation. And it’ll be sensible not to get ill, or get mugged, or get into trouble of any sort, since we may not have the same reciprocal agreements on things like that. And steer clear of holiday romances, since cross-breeding is obviously discouraged now. On the other hand, holidays in the UK are likely to be a lot cheaper.


9. We will be able to sign lots of new trade deals with countries from outside the EU?


- Yes. In theory. In practice, this won’t happen straightaway. In some cases, in fact probably most cases, if not all, it may not happen at all. A major reason other countries want to trade with us is because we’re a good means of entry into the EU, and of course we won’t be any more. Also for some reason a lot of countries have looked at the way we’ve negotiated with the EU and decided we aren’t very trustworthy. Or competent. And we don’t seem very welcoming to foreigners (see FAQ 4). On the plus side, we’ve got the royal family, who may be able to drum up support in some of the old colonies.


10. What about the £350 million a week extra for the NHS?


- There was a slight accounting error here. The actual figure was minus £350 million a week for the NHS, once the hit to our economy was taken into account. But on the bright side, there will be many fewer immigrants available to cope with staff shortages, so we may be paying less for the NHS anyway.


11. What sort of deal are we looking at?


- We’re going for something in the best traditions of British straight-talking, common sense, and premium quality bespoke tailoring. Think Geoffrey Boycott crossed with Roger Moore. Put simply: outside the CU but inside a CU, outside the EEA, but inside the SM for goods, although outside the SM for services, under the jurisdiction of the ECHR, outside the jurisdiction of the ECJ, inside Euratom, outside EFTA, inside OSCE, outside ESA, inside Interpol, outside Europol (not to be confused with EUPOL, which we’ll also be outside), and outside CFCA, CPVO, EU-OSHA, FRONTEX, EASA, ECDC, Cedefop, ECHA, EEA (not to be confused with the EEA), EFSA, EUROFOUND, GSA, EMSA, EMA (previously EMEA), EMCDDA, ENISA, ERA, ETF, FRA (previously EUMC), OHIM, and of course CdT, but nevertheless working with our wider international partners in UNECE, the ISO, CODEX, OECD and WCO in order to ensure a smooth accommodation of mutually beneficial regulatory standards. In summary, CETA+?+, with a splash of UK-specific FTA.


12. Couldn’t we get a better deal if we just threatened to leave without one?


- As a negotiating ploy, threatening to shoot yourself in the head does carry some risks. But in any event, now the EU have realised that we’ve made no contingency plans, this is rather like pointing a gun at yourself that has no bullets. Less risky, perhaps, but not particularly persuasive.


13. Will there be a “hard” or “frictionless” border in Northern Ireland?


- Whether we implement the MaxFac option, or the MinInfrastruc option, or more likely, whatever the EU tells us to implement, we are clear: whether hard, or soft, smooth or grating, this will be a red, white and blue border (on one side at least – green on the other); and borders mean borders, and we’re going to make a success of them.


14. Are we going to take back control of our fishing rights?


- What is it with Brexiteers and fish? Who gives a flying?


15. It’s not my fault though, is it? When I voted to leave I didn’t think you’d make such a complete fucking hash of it.


- That’ll be because of your trust in the administrative skill, strategic and tactical brilliance, imaginative flair, and honesty and decency of UK politicians, would it? I think we’ll just leave that one with you, if that’s okay.



By the editor, Jan 9 2018 09:35PM

Test Matches used to be run by two on-field umpires as a sort of benevolent diarchy, with absolute powers. Deference towards these despots was part of the treasured spirit of the game. But as television replays became more sophisticated, and other technology emerged, some umpiring decisions that might once have been questionable became indisputably wrong. The result has been the addition of the third umpire, sitting off-field, consulting approved technology, to assist decision-making under the Decision Review System (DRS).


Despite resistance from traditionalists, DRS is set to stay. But there remain misgivings. This blog is going to have a brief look at the relevant Laws to consider whether these misgivings might have anything to do with the way the Laws have been drafted, and how they are applied. (The current laws governing test match cricket around the world are here: https://pulse-static-files.s3.amazonaws.com/ICC/document/2017/10/05/226f919d-1bdd-4719-a32b-11b582a1c8a0/ICC-Men-s-Test-Match-Playing-Conditions-2017-Code-FINAL-051017.pdf.)


Consider for example the following scenario. A batsman given Out “Leg Before Wicket” (LBW) who reviews the decision stays Out when the ball-tracker technology (usually “HawkEye”) shows the trajectory of the ball to be just clipping the edge of the stumps; whereas if the batsman had been given Not Out to the same ball, and the bowler had reviewed, the batsman would have remained Not Out.


To some this seems perverse. Surely only one outcome should be allowed?


A CRIMINAL LAW PERSPECTIVE


The outcome of the scenario above can be justified. There is a corollary here with criminal law. There is something similar to a “burden of proof” on the prosecution – the bowler – before someone can be given Out: the bowler must usually ask the umpire for a decision. There is something similar to a “criminal standard of proof” before a defendant – the batsman – can be sent down to the pavilion. So for example Clause 31.6 of the Laws state that “If… there is still doubt remaining, the decision shall be Not out.” And although a decision by the on-field umpires is “final” (Clause 2.12), there is an appeal to a higher court in certain circumstances: to the third umpire, and his use of technology (Appendix D of the Laws).


Such a means of understanding the rules makes this scenario more understandable. There must be sufficient evidence to be sure that a batsman is Out. Neither the on-field umpire nor the technology can be relied on 100%. But if both umpire and technology conclude that a batsman is Out, then the evidence is sufficient, beyond a reasonable doubt. On the other hand, if either the umpire or the technology (or both) conclude that a batsman is Not Out, then there is a reasonable doubt, even if it may be more probable than not that he was, in fact, Out.


To adapt a maxim well-known in the criminal law: better that 10 guilty batsmen stay on the field, than that 1 not guilty batsman is sent back to the pavilion. (Though whether bowlers would agree with this is a different matter.)


Unfortunately, this neat comparison breaks down on a detailed consideration of the Laws. There is no authoritative statement regarding the standard of proof. Clause 31.6 referred to above only concerns decisions taken following consultation between the umpires. It would be odd if other decisions should be taken on a different basis, so it may be implied that the same standard applies to all decisions. Also there seems to be an understanding, or convention, that this standard applies. But that’s only an assumption. And given the wording of other Laws regarding decisions as to when Out and Not Out decisions should be made, there remains uncertainty as to whether the criminal standard applies consistently, or whether in certain cases the civil standard of proof (more probable than not) may apply.


The authority of the higher court – when the third umpire and technology are involved – is even more unclear.


There is nothing that sets out clearly which umpire or umpires make a final decision once DRS is used. It appears to depend on what type of review, and what means of dismissal, is involved.


There are 2 types of review: 1) an Umpire Review – where the on-field umpires decide to ask the third umpire for his input before making a decision; and 2) a Player Review – where one of the players asks for a review of a decision the on-field umpires have already made.


Umpire Reviews are available for most types of dismissal except LBW. Player Reviews are available for all types of dismissal except “Timed Out”. So both types of review are available for most types of dismissal, with the exception of LBW, which is only available via Player Review. (Quite why that is, when LBW is the most technically difficult issue to determine, is yet another mystery, which I won’t go into further here.)


UMPIRE REVIEWS


Regarding Umpire Reviews, the Laws state as follows (Appendix D, para 2):


In the circumstances detailed in paragraphs 2.1, 2.2, 2.3 and 2.4 below, the on-field umpire shall have the discretion to refer the decision to the third umpire or, in the case of paragraphs 2.2, and 2.4, to consult with the third umpire before making the decision.


This suggests two categories within the Umpire Review umbrella. Regarding the first category (applying to paragraphs 2.1 – 2.4), a decision is referred to the third umpire, i.e. it is the third umpire who makes that decision. Regarding the second category (applying only to paragraphs 2.2 and 2.4), the third umpire is only consulted before the on-field umpire makes the decision.


Having pored over paragraph 2.2 (“caught decisions, obstructing the field”), I’m at a loss to understand the circumstances in which second category decisions, as opposed to first category decisions, should be made. The processes seem to operate in one way only, and sub-paragraph 2.2.3 states: “the third umpire shall determine whether the batsman has been caught, whether the delivery was a Bump Ball, or if the batsman obstructed the field.” In other words, it seems that despite what is stated by para 2 above, in fact the final decision under para 2.2 is always that of the third umpire, not the on-field umpires. Paragraph 2.4 (“Batsmen Running to the Same End”) doesn’t concern a decision whether to dismiss, though it too suggests that the third umpire makes the final decision.


So on balance, it seems likely that, despite the wording of Appendix D paragraph 2, where there is an Umpire Review, it is always the third umpire who should make the final decision. But the lack of clarity could obviously give rise to uncertainty, so the position is far from satisfactory.


PLAYER REVIEWS


Regarding Player Reviews, the position appears to be different. Appendix D para 3.3 sets out the “Process of Consultation”, and paras 3.3.8 to 3.3.9 state that, following consultation:


3.3.8 The on-field umpire shall then make his/her decision based on the information provided by the third umpire, any other factual information offered by the third umpire and his/her recollection and opinion of the original incident.


3.3.9 The on-field umpire shall reverse his/her decision if the nature of the supplementary information received from the third umpire leads him/her to conclude that his/her original decision was incorrect.


These provisions appear – fairly clearly – to reserve the final decision to the on-field umpires. It would seem that the third umpire acts here in a consultative role, akin to an “expert witness” in a criminal trial. In theory, it would appear open to the on-field umpire to stick to his decision even following a clear conclusion from the third umpire, based on the technology, that the original decision was wrong.


But why should the third umpire make the final decision following an Umpire Review, and the on-field umpires make the final decision following a Player Review?


But before we can start speculating about that, unfortunately there are other features of the decision-making process under Player Reviews that suggest that the on-field umpires are not free to take the final decision in all circumstances.


REVIEWS OF LBW DECISIONS


There are numerous provisions of the “Review of LBW Decisions” at para 3.4 that, in effect, force the on-field umpire’s hand. For example, regarding the use of ball-tracking technology to determine where the ball pitched, para 3.4.4.4 states: “…the batsman shall be Not out if the ball pitched outside leg”. The point here is that the Laws make it clear, albeit by inference, that whether the ball actually did pitch “outside leg” is determined by the technology. In this case, the batsman “shall be” Not Out. The on-field umpire – and the third umpire for that matter – appears to have no discretion at all to overrule the verdict of the technology.


Regarding two other issues – where the ball impacted the batsman, and whether the ball went on to hit the stumps - the on-field umpire’s original decision is certainly given considerable weight, since the technology reports whether the ball was predicted to be only partly within the impact Zone and whether only a part of the ball was predicted to have hit the stumps. In both cases, these are “Umpire’s Calls”, and the on-field’s umpire’s decision would stand either way, provided other conditions are met.


It is unclear, though, in what way the on-field umpire has any deliberative role in the review process on any of these 3 factors. (The third umpire clearly has no such role: he is simply a messenger, relaying what the technology tells him.) With one possible exception, it appears that the review process regarding these 3 factors is simply a matter of the technology reviewing whether the original decision should stand, irrespective of any further determination by the umpires. The one possible exception is set out in para 3.4.9, which states that “the predicted height of the ball after pitching… shall remain a judgment of the bowler’s end umpire”. Does this give scope for the on-field umpire to decide whether the ball would have hit the stumps? It’s hard to see what this would be, given the provisions that treat the technology’s predictions as conclusive. And even if there is this power, why does it only apply regarding height, and not regarding any other matter?


There are other factors that may affect LBW decisions – for example, whether there was a No Ball, or whether the ball hit the bat before hitting the batsman. The third umpire shall “judge” those matters (para 3.4.1), though perhaps we should assume the principle in paras 3.3.8 – 3.3.9 still applies: the third umpire and technology are there to assist, but ultimately the decision is for the on-field umpire.


If so, it seems odd that the ball-tracking technology is to be treated as determinative, but the other technology as merely informative.


Besides, this distinction doesn’t seem to be followed in practice. Witnessing DRS in action, it seems that the same deference is shown to technology indicating whether there has been contact between bat and ball as there is to technology indicating whether the ball was likely to hit the stumps. The difference in practice is that the latter technology sometimes appears less than definitive, and so the third umpire’s own interpretation comes into play.


And note also that it does seem to be the third umpire, rather than the on-field umpire, who makes the final decision. This appears to contradict what is stated in the Laws.


And finally, the admission of at least some technological evidence as determinative is likely to contribute to confusion as to the correct standard of proof. Consider Pitching, for example. Here, the technology is treated as infallible. There is no “Umpire’s Call”. So if the original decision was Not Out, on the basis that the umpire thought the ball probably pitched in line, but wasn’t sure, and the technology indicates that the ball just pitched in line (and all other conditions for LBW are met), this in effect confirms the umpire’s view (ie the ball probably pitched in line, but it was too close to be sure), but appears to change the decision from Not Out to Out. The justification for this may be that the technology is more reliable than the umpire on this point. But if so, why is it less reliable on other points? This muddies the conceptual waters. If the on-field umpire still has doubts whether the ball pitched in line, and given that the technology can’t be trusted 100%, isn’t that sufficient to amount to reasonable doubt? It’s unclear if there’s any scope for the on-field umpire to overrule the technology on this basis.


WHAT DOES IN FACT HAPPEN IN THESE SCENARIOS?


What really happens under DRS appears much simpler than the convolutions described above, no doubt in part as a pragmatic response to the difficulties of interpreting the Laws. The third umpire consults the technology, and when it provides evidence that the batsman was probably out or not out, the original decision is confirmed or reversed accordingly (subject to the “Umpire’s Call” provisions on LBW decisions).


When the evidence is inconclusive, there is usually a significant delay while the third umpire makes up his mind, while several technological aids are played and replayed (it never appears to be the on-field umpires making up their minds). This is despite the rule in para 3.3.6 of Appendix D stating that, on Player Review at least, inconclusive evidence should mean “that the on-field decision should stand”.


WHERE DOES THAT LEAVE US?


Regarding the standard of proof, it seems that in theory there needs to be proof beyond a reasonable doubt before a batsman can be given Out. But that principle is not laid down with certainty in the Laws. And the provisions on DRS appear to dilute it. In practice it seems likely that review decisions are made on the balance of probabilities.


It is difficult to pin down who is responsible for DRS decisions. But it seems that in theory there are 3 different ways that such decisions should be made, depending on the type of review, type of dismissal, and element of dismissal to be determined: 1) the final decision is made by the on-field umpire, 2) the final decision is made by the third umpire, or 3) the final decision is made by the technology. In practice it seems likely that the decision is made by the technology whenever it comes to a clear conclusion, and by the third umpire whenever the conclusion is unclear.


So the umpires are now the servants of the technology, even if the reverse might have been intended. Marginal decisions are now agonised over off-field, rather than being decided on-field, in favour of the batsmen. So it’s the machines and the bowlers who’ve ended up in the ascendant. A system that was meant only to stop blunders has ended up fundamentally altering how decisions are made.



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