Reincarnation and Resurrection – the Afterlife of the European Communities Act 1972 in the Withdrawal Bill

The UK Government has published its long-awaited European Union (Withdrawal Agreement) Bill (the “WAB”) that – if enacted – will give legal effect to the revised Withdrawal Agreement negotiated between the EU and the UK. The revised Agreement settles the terms of the UK’s departure from the EU in respect of citizens’ rights, the financial settlement and the new arrangements to avoid customs and regulatory checks on the border between Ireland and Northern Ireland.

Domestic legislation is needed because the Withdrawal Agreement is in essence an international treaty between the EU and the UK and without an Act of Parliament it would not have direct domestic legal effect. Also the European Union (Withdrawal) Act 2018 expressly states that the UK cannot ratify the Withdrawal Agreement – and so cannot bind itself in international law to the Agreement – until the necessary implementing legislation is in place. In short, the Bill is the foundation of the legal framework by which the terms of the UK’s exit from the EU will be implemented domestically.

The WAB is a biggish bill containing forty clauses and six schedules. It is also complex because it amends the European Union (Withdrawal) Act 2018 meaning that the two pieces of legislation need to be read together. One reason for this is that it is the 2018 Act that repeals the European Communities Act 1972, the legislation which prior to exit gives effect to the UK’s membership of the EU. It is the 1972 Act which makes EU law a source of law and which ensures that UK law continues to comply with EU law as it changes over time.

For the purposes of this post, the issue is simply this: if the 1972 Act is repealed, how is the Withdrawal Agreement and the EU law it continues to apply during the transition period (and after) to be given legal effect in the UK and in a way that complies with specific obligations under the Withdrawal Agreement? It will become clear that notwithstanding the repeal of the 1972 Act it will enjoy a strange afterlife – reincarnated in certain respects to give effect to the Withdrawal Agreement and resurrected to give effect to the transition period created by the Agreement.

Implementing the Withdrawal Agreement – Meeting the Demands of the Withdrawal Agreement

In order for the provisions of the Withdrawal Agreement to have domestic legal effect, the WAB must be passed by Parliament. However, the WAB must be compatible with the Withdrawal Agreement. The Agreement identifies the type of legal effect that must be created in UK law by its implementing legislation.

Article 4(1) of the Agreement states that

… this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States

This rather elliptical provision identifies that the binding nature of EU law and its capacity for application and enforcement within the legal systems of the Member States has to be secured in the UK after membership. Article 4 goes on to clarify what this means in practice:

… legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

In other words, provided a provision of the Agreement or any other applicable provision of EU law is clear, sufficiently precise and unconditional and so is capable of being enforced – if needs be, before a UK court – the UK must ensure that this effect is facilitated and not prevented by UK legislation. Indeed Article 4(2) of the Agreement spells out further the consequences of the UK’s obligation. It encompasses:

… the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

This is clearly a very strong obligation that the WAB needs to create. Not only must individuals and companies be able to invoke provisions of the Agreement and applicable EU law in domestic proceedings, the WAB must ensure that UK authorities and courts have the power to disapply inconsistent and incompatible national provisions.

How then does the WAB approach this task?

It draws a distinction between implementation of the Withdrawal Agreement in general and the implementation of particular parts of the Agreement including the provisions relating to the transition period. Implementing the transition period will be discussed further below and what follows concerns how the implementation of the Withdrawal Agreement generally complies with Article 4 of the Agreement.

Reincarnating the European Communities Act – How Does the WAB Give Effect to the Withdrawal Agreement

How any Member State gives effect to EU law depends on its own constitutional and legal approach and so it might be difficult to determine whether the UK has complied with Article 4 by reference to how this is achieved in the other Member States. Instead what really matters is whether the WAB gives effect to EU law differently from how EU law was given legal effect under the European Communities Act 1972.

Section 2(1) of the 1972 Act provides:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression  “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

The European Union (Withdrawal) Act 2018 repeals the European Communities Act and so switches off this domestic legal mechanism for giving effect to rights and obligations derived from an EU legal source. The challenge for the WAB, therefore, is how to create something to replace Section 2(1) of the 1972 Act while also complying with Article 4 of the Withdrawal Agreement.

Clause 5 of the WAB inserts a new section 7A into the 2018 Act which states:

(a) … all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement,

as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

When we compare this with section 2(1) of the European Communities Act 1972 we see that the same terminology is deployed. The clear intention of the WAB is to replicate and reproduce in the 2018 Act the constitutional qualities of the 1972 Act. Accordingly, the WAB states that the Withdrawal Agreement is to be “recognised and available in domestic law” and “enforced, allowed and followed accordingly”. All of which is, no doubt, also to reassure the EU that the UK will – as it has done during memnbership – ensure that EU law is given its correct legal effect.

But the WAB does something that the 1972 Act does not, namely to assert the sovereignty of Parliament. It has always been a difficult constitutional question whether the 1972 Act limited parliamentary sovereignty and whether the effect that it gave to EU law could be limited by a future Act of Parliament. The principle of the primacy of EU law would suggest that Parliament does not have the sovereignty to enact rules inconsistent with EU law and indeed UK courts have disapplied Acts of Parliament that conflicted with EU obligations. Back in 2011, the European Union Act 2011 sought to clarify how the legal effects derived from EU law were recognised in UK law. Section 18 of the 2011 Act made clear that these effects were available solely by virtue of the 1972 Act and so sought to reconcile the primacy of EU law with the sovereignty of Parliament as expressed in the 1972 Act.

The 1972 is repealed by the 2018 Act and Clause 5 will vest in the 2018 Act the power to give effect to the Withdrawal Agreement. But this will now have to be read alongside Clause 36 of the Bill which Mike Gordon suggests is a development of the idea behind section 18 of the 2011 Act.

Clause 36 states:

(1) It is recognised that the Parliament of the United Kingdom is sovereign.

(2) In particular, its sovereignty subsists notwithstanding—

(a) directly applicable or directly effective EU law continuing to be recognised and available in domestic law by virtue of section 1A or 1B of the European Union (Withdrawal) Act 2018 (savings of existing law for the implementation period),

(b) section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement),

(3) Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

On the one hand, it might be said that this clause does nothing other than state a principle of the sovereignty of Parliament that endured through membership. On the other hand, and in the context of a new Act that makes provision for the UK’s exit from the EU, this is a strong assertion of the sovereign power of the UK Parliament including expressly in respect of the obligation laid down in Article 4 of the Withdrawal Agreement to secure its legal effects. It is an overtly political move and one that is unnecessarily antagonistic. After all, if the principle of the sovereignty of Parliament is the cornerstone of the constitution nothing in the WAB could change that. We don’t expect other Acts of Parliament to assert the continuing sovereignty of Parliament because it is a principle that is inherent in the constitutional architecture. Whatever its precise legal effects, this is an exercise in political messaging, underlining the “Take Back Control” refrain of the Leave campaign. The 1972 Act may have been reincarnated but it wears a bell round its neck tolling the bell of sovereignty.

Resurrecting the European Communities Act – Giving Effect to Transition

The most difficult part of the WAB lies in its treatment of the transition period created by Part 4 of the Withdrawal Agreement. During transition, the UK will remain bound by EU law as if it were still a Member State. The transition period lasts until 31 December 2020 unless a decision is made to extend transition for one or two years.

If the 2018 Act did not repeal the European Communities Act then the UK could have continued to give effect to EU law in the same way as it did during membership. But with the repeal of the 1972 Act, the WAB might have approached the transition period in the same way as it deals with the Withdrawal Agreement itself, namely to apply Clause 5 to Part 4 of the Agreement. Instead – and despite the repeal of the 1972 Act – Clause 1 of the WAB seeks to “save” the 1972 Act for the purposes of giving effect to Union law during the transition period.

Clause 1 of the WAB inserts a new section 1A into the 2018 Act. Instead of reproducing and replicating the technique deployed by the 1972 Act (or even not repealing or delaying the repeal of the relevant provisions of the 1972 Act) the Bill states that:

The European Communities Act 1972, as it has effect in domestic law or the law of a relevant territory immediately before exit day, continues to have effect in domestic law or the law of the relevant territory on and after exit day so far as provided by subsections (3) to (5).

It is as if the 1972 Act still operated, with the Withdrawal Agreement in respect of the transition period added to the list of treaties to which the effects created by the 1972 Act apply. It is an exercise in temporary resurrection, although rather euphemistically, the Explanatory Notes to the WAB describe its function as a “repurposing” of the 1972 Act.  At the end of the transition period – what the Bill describes as “IP Completion Day” – the means of giving effect to EU law during this transition period are finally turned off and the 1972 Act is finally laid to rest.

The WAB has a difficult balancing act to pull off that is underpinned by what is self-evidently a highly political decision namely the repeal of the European Communities Act. With that legal device switched off, the WAB has to find a means of switching it back on for the enduring purposes of giving effect to the Withdrawal Agreement, and more temporarily for the purposes of the transition period, all the while ensuring compliance with Article 4 of the Withdrawal Agreement. The picture is also complicated because the 2018 Act as enacted domesticated EU law as of “exit day”. This creates the obvious risk of EU law having effect both as domestic law under the 2018 Act as enacted and then via the WAB amending the 2018 Act applying the effects of the 1972 Act. Clause 25 of the WAB, therefore, delays the domestication of EU law until after the end of the transition period. So the WAB temporarily switches back on the effects of the 1972 Act until the end of the transition period whereupon EU law becomes domesticated and effective in terms of the 2018 Act.

Giving Effect to New EU Rules During The Transition Period

The transition period created by the Withdrawal Agreement and given effect by the WAB does not simply maintain the application of EU law as it stood at exit day to the UK as if it were a Member State. New EU rules adopted and coming into force during the transition period also form part of the body of law which must be given domestic legal effect. Saving the effects of the 1972 Act also saves its ambulatory capacity under section 2(1) of the 1972 Act to give effect to “directly applicable” EU law including any new or amended directly applicable provisions up until the end of the transition period (clause 25(3)). These directly applicable provisions are then domesticated as UK retained law at the end of the transition period.

The question is what to do about new EU directives coming into force during the transition period. How these are given effect depends upon how the 2018 Act deals with directives. The 2018 Act recognises that with the repeal of the 1972 Act, statutory instruments which gave domestic effect to directives would no longer have a valid legal basis and so existing instruments are “saved: via section 2 of the 2018 Act. That technique works inasmuch as the instruments did once have a valid legal basis when enacted and that legal effect is preserved by the 2018 Act.

More difficult, however, is the idea that notwithstanding its repeal, the effects of the 1972 Act – in particular the power to make statutory instruments under section 2(2) of the 1972 Act – can be saved and applied to new EU directives. Clause 1 inserts a new section 1A(3)(b) which amends section 2(2) of the 1972 Act and so assumes that the power contained in the 1972 Act still applies to allow Ministers to make regulations to implement new directives entering into force during the transition period. However, it is one thing to save or preserve a legal effect of an instrument that at the time of its adoption had a valid and in force statutory authority. It seems decidedly odd to seek to preserve a statutory rule-making procedure in respect of new EU acts when that underlying statute is explicitly repealed. Once again one cannot help but be drawn to the conclusion that it would have been better not to repeal the 1972 Act until after the transition period.

For new EU rules adopted during the transition period the WAB introduces an innovation in clause 29 which inserts a new section 13A into the 2018 Act. This gives the European Scrutiny Committee of the House of Commons a power beyond its current powers under Standing Orders (119 and 143) to highlight issues of political and legal significance arising from new EU rules. Rather if the Committee thinks that a new rule raises issues of “vital national interest” and publishes a report accordingly, a Minister must within 14 sitting days move a motion for a debate and a vote. However, this does not give either the Minister or the Commons a veto over new EU rules and the Withdrawal Agreement itself does not empower the Joint Committee to restrict the application to the UK of new rules adopted during the transition period if there is any domestic objection. There is provision for the Joint Committee to become engaged if new EU rules become applicable to the UK in respect of Northern Ireland  under Article 13(4) of the Protocol on Ireland/Northern Ireland but this applies only in respect of Northern Ireland and after the transition period has ended.

Post-Transition EU Rules – The Protocol on Ireland/Northern Ireland

After the transition period, the UK is not obliged to give continuing effect to EU rules except if it precommits to doing so. In respect of the revised Protocol on Ireland/Northern Ireland, the UK has committed to continue to apply certain EU rules including on manufactured goods, food and veterinary checks with a view to avoiding regulatory checks. These rules are often subject to amendments and replacements. Article 13 of the Protocol makes clear that the UK – in respect of Northern Ireland – will be bound to apply amendment and replacement rules. Where the EU adopts a wholly new provision that falls within the scope of the Protocol, there is a procedure involving the Joint Committee that can decide whether to add the new EU provision to the relevant annexes to the Protocol. This creates a shifting legal landscape for the WAB to seek to implement.

Unsurprisingly, the WAB deals with this changing legal background by empowering Ministers – and devolved institutions within their competences – to enact regulations both to give effect to the Protocol and to any provision of EU law made applicable by virtue of the Protocol. In this way, a new power to give effect to EU rules for part of the United Kingdom is created. The issue then is what legal effect to ascribe to these regulations. In other words is their status a wholly domestic one or does Article 4 of the Withdrawal Agreement continue to apply. The revised Protocol does not expressly identify what legal effect provisions of EU law made applicable to the UK in respect of Northern Ireland should have but the context of Article 13 of the revised Protocol suggest that Article 4 of the Withdrawal Agreement remains applicable. Indeed, Article 13(2) of the revised Protocol makes clear that the obligations contained in Article 4(4)-(5) of the Withdrawal Agreement – to interpret EU law in conformity with the case law of the Court of Justice – endure after the end of the transition period.


Piecing this together requires one to read across the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland to establish what legal obligations the WAB must seek to implement. The WAB itself has to be read in conjunction with the 2018 Act and the European Communities Act 1972. This is not an entirely easy task and the analysis here has focused on the broad structure of implementation rather than the finer detail where one finds real complexity in joining all the bits of the legal jigsaw together.

It is easy to complain and wring one’s hands about the difficulty of it all. That is not a reason in itself to be dismissive of the WAB and clearly a great deal of work has gone into making the legal framework operational. Yet one cannot ignore that much of this complexity is generated by political decisions, most notably that the European Communities Act 1972 had to be repealed. The very limited time that is available to parliamentarians to scrutinise this complex legal framework is also a political choice and one which the Prime Minister has sought to underscore by threatening to pull the Bill if the proposed timetable for scrutiny is not adhered to. It remains to be seen whether the Bill dies before it has a chance to reincarnate and resurrect aspects of the 1972 Act.


Getting a Hard Brexit Done -Towards a New Final Destination

With barely two weeks to go to a crunch European summit, the UK Prime Minister Boris Johnson has made his pitch for a revised Irish ‘backstop’ and a new Political Declaration on the future relationship between the EU and the UK. Not surprisingly given that what has been released deals solely with the backstop, the question that journalists have focused upon is whether the idea of an all-Ireland regulatory zone and customs controls away from the North-South border can get a green light from the EU and from the MPs who will need to back the deal.

Under the pressure of time, political and media attention cannot help but be consumed with the here and now. Yet what is fundamentally at stake in all of this is not just what it takes to “Get Brexit Done” but where the UK and the EU are heading in terms of their future relationship. As Jill Rutter has tweeted, what is really significant about Boris Johnson’s letter to departing European Commission President Jean-Claude Juncker is that the softer form of Brexit envisaged by Theresa May – and rejected not just by her own MPs but also Opposition parties – is not what the Johnson Government wants. The shape of Brexit has altered and altered radically from a year ago.

On this blog last year, I suggested that what might be important about the planned backstop was that it was less a safety net and more of a trampoline towards a particular kind of future EU-UK relationship. Indeed, the terms of the Political Declaration implied that a future relationship would build upon a backstop that would keep the whole of the UK and not just Northern Ireland subject to EU rules including “level playing field” regulatory compliance.  Had the Withdrawal Agreement and Political Declaration been approved, the shape of Brexit could have been relatively soft (although a change of government in the UK could, of course, have charted an alternative course). Albeit different from the approach of the European Economic Area Agreement – aka the “Norway model” – a novel and potentially far-reaching type of “association agreement” between the EU and the UK seemed to be on the cards.

The Prime Minister’s new proposal is not just for a revised backstop but for a very different type of future relationship. This had already become clear when the newly appointed Prime Minister Johnson wrote to the European Council President on 19 August. As well as making the now-familiar claim that the backstop was “undemocratic’, the Prime Minister went on that the backstop was “inconsistent with the UK’s desired final destination for a sustainable future relationship with the EU”. In express terms, the Prime Minister stated that UK regulations could in the future diverge from those of the EU; “[T]hat is the point of our exit and our ability to enable this is central to our future democracy”, he said.

In the more recent letter to Jean-Claude Juncker, the abandonment of any type of association agreement in favour of a free trade agreement is made clear and the reasoning that lies behind it is so “that the UK takes control of its own regulatory affairs and trade policy”.

What emerges is a rather interesting picture. The UK will leave the Customs Union and the Single Market and base its future relationship on a free trade agreement. This is a hard Brexit with no pre-commitment to EU regulatory standards underpinned by an agreement with the EU. Which is not to say that other forces will not push towards regulatory convergence: voluntary alignment or the pressure from market actors will have a role to play. But the free movement discipline of pre-committed regulatory alignment will be replaced by a looser free trade discipline that will open a space for regulatory divergence. The exception to this is Northern Ireland. Rather than the backstop acting as a trampoline or trap, it will be an anomaly. The Prime Minister intends that this anomaly – something which the Democratic Unionist Party had apparently sets its face against hence the May version of the backstop – will find its justification in the principle of consent and the willingness of the people of Northern Ireland to accept continuing regulatory alignment in trade in goods. Which begs the question of how consent in the rest of the UK is to be secured for potential regulatory divergence in the future.

It remains to be seen whether the Prime Minister can persuade the leaders of the EU27 to back his plan. But even if they do, can the same MPs who didn’t support Theresa May’s softer Brexit really get behind the harder Brexit that the Prime Minister is clearly pursuing?


The Supreme Court as a Constitutional Court: Reflections on Cherry/Miller

In a unanimous single judgment, the eleven justices of the UK Supreme Court have ruled that the purported prorogation of Parliament for five weeks from 9 September to 14 October was unlawful because the advice of the Prime Minister to Her Majesty the Queen was unlawful.

The Supreme Court has declared that Parliament does not stand prorogued but it is for the authorities of the Houses of Parliament and Government and Opposition to decide what Parliament will now do. This is entirely consistent with what happened after the ruling of the Supreme Court in the first Miller case in which the Supreme Court held that the Government needed the authority of an Act of Parliament to trigger the Article 50 process for withdrawal from the European Union. The Supreme Court did not, and would not, instruct Parliament to legislate and it has not now instructed Parliament as to what it should do following today’s declaration.

There is much that can be – and will be – written about the judgment. It arose from distinct legal proceedings in the Scottish courts – in a petition for judicial review brought by Joanna Cherry MP QC and more than seventy parliamentarians supported by Jolyon Maugham QC who crowd-funded the case – and in the English courts – in an application for judicial review brought by Gina Miller. Whereas Ms Miller lost before the English Divisional Court, Ms Cherry succeeded before the Inner House of the Scottish Court of Session which held that the Government had acted unlawfully in using prorogation to “stymie” Parliament in the period leading up to the UK’s withdrawal from the EU. Appeals in both cases came before the Supreme Court.

But today’s judgment is much more than an apex appeal in two separate but linked judicial review cases. It is also a constitutional ruling of a court that clearly sees itself not just as a “supreme court’ but as the constitutional court of the United Kingdom with the responsibility to uphold and apply the constitution of the United Kingdom. It noted that:

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. [para 39]

It continued:

… the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. [para 39]

There was always a risk in this case of a certain lack of fit between the constitutional nature of the underlying political struggle between the Executive and Parliament, and the legal tools available through which to frame the dispute in legal terms. The UK’s system of court-based public law has emerged through the rise of proceedings in judicial review which determines the limits of public power through the application of principles of administrative law. The tools and techniques of administrative law – and in particular the grounds of judicial review developed by the courts – are well-known to public lawyers. Decisions taken by public authorities must not entail procedural impropriety – failure to abide by mandated procedures; breaches of natural justice; bias – or illegality – acting ultra vires or for an improper purpose or by taking into account irrelevant considerations – or otherwise irrational or unreasonable. This is a flexible toolkit that can be applied to a wide range of decision-makers. The recognition of fundamental rights both at common law and more directly through the Human Rights Act has deepened the substantive review of the legality of decision-making and extended it beyond administrative action to the review of Acts of Parliament for their compatibility with fundamental rights.

In the proceedings before the Supreme Court, lawyers on all sides delved into this body of law to frame their claims about the lawfulness or otherwise of the actions of the Prime Minister. It seemed as if much might turn on whether the Prime Minister was seeking to use a recognised power to prorogue for an improper purpose or was otherwise motivated by improper concerns. Yet translating this from the administrative law realm – where a court might be asked to determine whether a statutory power was being used for a purpose other than that for which it was intended by Parliament – to the constitutional realm of the prerogative power to prorogue was not without its difficulties. Does prorogation have a proper purpose and what sort of evidential basis would be needed to determine if a use was improperly motivated? Would sworn affidavits from the Prime Minister and his officials be needed to work out what was in their minds when they sought a prorogation? The Supreme Court largely side-steps these problems by taking a more resolutely constitutional path.

At the heart of the judgment is the proposition that there are two key constitutional principles: the sovereignty of Parliament and parliamentary accountability of the Executive. Parliamentary sovereignty is typically reduced to the maxim that Parliament can make or unmake laws which it is the duty of the courts to interpret and apply. But as the Supreme Court also noted, the sovereignty of Parliament would be undermined ‘as the foundational principle of our constitution’ if a prerogative power to prorogue could be used to ‘prevent Parliament from exercising its legislative authority’; a point made forcibly by Professor Paul Craig in a highly influential blog on the eve of proceedings before the Supreme Court. As for parliamentary accountability, the Court equally viewed this as a cardinal constitutional principle that could be frustrated by an unduly long prorogation. All of which left the Court to ask:

So the same question arises as in relation to Parliamentary sovereignty: what is the legal limit upon the power to prorogue which makes it compatible with the ability of Parliament to carry out its constitutional functions? [para 48]

The Supreme Court formulated the relevant test to be applied in the following way:

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. [para 50]

By looking at the effects rather than the motive and by determining whether the effect is an interference with constitutional principles that lacks a reasonable justification, the Supreme Court deploys a test that is certainly analogous to situations where courts engage in interest-balancing. In other words, the Executive does have a legitimate interest in prorogation to start a new parliamentary session. Prorogation does have effects that include the cessation of normal parliamentary business and the loss of Bills in progress. The longer the prorogation the more serious the effect on Parliament’s interests in ensuring it can perform its constitutional functions. Accordingly, a longer prorogation than normal demands a higher level of justification and reason-giving. Therefore, without getting into any questions about motive or purpose the Supreme Court could state:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful. [para 61]

The Court did not venture further in explicitly proposing a proportionality-based balancing of interests but it is still clear from the judgment that the greater the interference with the protected constitutional principles – and so increasing the seriousness of the effects on the capacity of Parliament to exercise its functions – the greater the justificatory demands. That feels like a constitutional style of adjudication.

Nonetheless, the cautious approach of judicial review may temper any potential constitutional overreach. Early on in the judgment, the Court identifies that it is the Prime Minister who has the constitutional responsibility to have regard to all relevant interests ‘including the interests of Parliament’ and so interest-balancing is first of all a matter for politics. However, it is clear that how that is done, and the justification provided for the effects on the interests of Parliament, is open to judicial review and is justiciable.  In the extreme case, it will be found to be unlawful.

Brexit is putting UK politics and its constitution under considerable strain. However, today’s ruling is an important signal than in a constitutional monarchy, the constitution sill matters and the Supreme Court is willing and able to play its role as a constitutional court.

NB: The author was part of the legal team advising the petitioners in the judicial review sought by Joanna Cherry MP QC and other parliamentarians. This blog is written in a purely personal capacity and does not purport to represent the views of the petitioners or the legal team. It is a wholly personal academic reflection on the implications of the Supreme Court’s ruling.


Decision Time – Why Opposition Parties Need to Agree a ‘Brexit Manifesto’

In the Introduction to my book Brexit Time, I observed that Brexit was not the United Kingdom’s ‘manifest destiny’. Rather it was a choice. And it remains a choice.

We have now reached the point where decisive choices can and need to be made. The options are clear. Under the Johnson Government, the option of No Deal Brexit is actively being pursued. For the opposition parties the options are either for the UK to remain in the European Union or to exit on terms that will see the UK maintain a close alignment and cooperation with the EU.

These are not new options. What is new is that there is now a clear path towards finally making a decision.

The first step is to force the Conservative Government to seek a mandate for a No Deal Brexit through a General Election. That means preventing the Prime Minister from either proroguing Parliament or choosing the date of a General Election beyond the 31 October deadline after which the UK would automatically crash out of the EU.

Before a General Election can take place, MPs will have to pass a motion of no confidence in Boris Johnson’s Government AND form a unity government. Although there has been speculation and controversy over who might lead that unity government, what is more important is what steps it puts in place for a General Election that would allow the electorate to either back a Conservative No Deal Brexit, or pave the way for the other two options – Remain or a softer Brexit – to be tested.

In order for there to be General Election before the UK automatically leaves the EU on 31 October, a further extension to the Article 50 process might well be needed. Nonetheless, for yet another extension to be granted – the third such extension – the EU will want to know that a General Election is likely to produce more rather than less certainty. That means that opposition parties need to agree not just a unity government to take control over the process, but a unity position on the substantive alternatives to a No Deal Brexit.

This is why I think the opposition parties need to come up with a common ‘Brexit manifesto’ to contest a General Election. This would not, of course, replace the party manifestos; after all, a General Election would be about more than just Brexit. But when it comes to outlining the party positions on Brexit, the opposition parties need to agree a common platform.

The difficulty for the opposition parties is the split between those for whom the only viable option is for the UK to remain an EU Member State and those for whom a Brexit alternative based on a Withdrawal Agreement, transition and close future relationship with the EU is a credible option.

The Liberal Democrats might want to maintain the clarity of their current pro-Remain position which has seen them make advances in the polls. The problem with that is two fold. For the Lib Dems a simple Revoke-Remain strategy is not going to attract them the votes of Conservatives for whom Brexit is still their preference but not a No Deal Brexit. Unless they are prepared to accept a compromise position – and with it being highly unlikely that traditional Conservative voters would switch instead to a Corbyn-led Labour Party – those Conservative Leave voters may feel they have no alternative to backing a No Deal Conservative Party under Boris Johnson. For the Labour Party, MPs in Leave-voting constituencies are unlikely to get behind a Brexit manifesto that simply gives voters a choice between a No Deal Brexit or a Revoke-Remain alternative.

My proposal is that the opposition parties unite around offering voters a second step in the form of a referendum with a straight choice between Remain and a Brexit that would keep the UK in the Single Market and a partner with the EU on other forms of cooperation including security. The option of a No Deal Brexit would not need to be put in a referendum because the preceding General Election would either have seen that option accepted – with a Johnson government having a fresh mandate – or it would have been rejected.

This approach allows the key choices to be made. If Boris Johnson wins a General Election he will have a mandate to pursue his preferred form of Brexit. If he loses and either one of the opposition parties has a majority or some type of coalition is formed, the new government would be committed to giving voters a final choice between staying in the EU or leaving the EU but under different terms. Voters would know that this alternative to a No Deal would be on offer regardless of which opposition party they voted for.

It is clear that Labour is backing a strategy of a General Election followed by a referendum. It is imperative that this becomes a shared strategy of the opposition parties.

For this strategy to be viable there does need to be greater clarity and agreement about what a credible alternative Leave option might look like. My own view is that an EEA model is a credible alternative in securing continuing access to the Single Market. It would eliminate customs duties between the UK and the EU and maintain regulatory alignment not just at the point of departure but over time. There are understandable grounds for reticence about the EEA Agreement given that it is almost thirty years old. It would be helpful if the incoming European Commission could signal its willingness to review the operation of the EEA Agreement and how it might be adjusted in light of developments in the last three decades and as the EU reflects on its own future institutional architecture and relations with its near neighbours.

The challenge for the opposition parties would be to approve a Withdrawal Agreement that they have otherwise opposed. The basis for a change of position would be a very different vision of the future for the UK as a whole and a credible alternative to the backstop underpinned by the principle of consent.

Under the Withdrawal Agreement, the UK would enter into a transition period ending on 31 December 2020 or later if it is extended. It is conceivable that an EEA-type future relationship could be ready to commence on 1 January 2021 or a year or two later if a deeper review of the EEA approach was to be undertaken.

During the transition period, Northern Ireland would be in the same position as the rest of the UK with EU customs and Single Market rules applicable during the transition period. Thereafter, an EEA-style agreement would avoid the need for frontier regulatory controls on the island of Ireland but as the EEA Agreement does not create a Customs Union a different approach would need to be considered to secure the avoidance of a hard border. To that end, the UK and the EU should commit to negotiating an agreement to replace the ‘backstop’ under the Withdrawal Agreement to keep Northern Ireland within EU customs arrangements (in addition to its participation in the Single Market through an EEA-style agreement). This new agreement should be the subject of a referendum in Northern Ireland, thereby ensuring that the Good Friday Agreement principle of consent would apply to any difference in approach between Northern Ireland and the rest of the UK. To avoid the Withdrawal Agreement backstop provisions being triggered, this new agreement and a referendum to approve it would need to be in place during the transition period.

All of which will require strong signals from the EU as to its willingness not just to pursue this alternative Brexit but also to implement the steps necessary to ensure that a transition will be successful. This will entail revisiting and revising the text of the Political Declaration to reflect different Brexit priorities. My own view as expressed in an earlier outline proposal is that an ‘Implementation Protocol’ to be added to the Withdrawal Agreement would give confidence as to the commitment of the EU and the UK to move from the status quo to a new set of arrangements.

It is only by offering a credible alternative Brexit that a future referendum choice between Remain and Leave can legitimately respect the interests of voters. Leave voters will have the opportunity in a General Election to vote for No Deal if that’s what they want and again to vote for a different type of Brexit – or indeed to Remain – if Boris Johnson is unable to form a government after an election. Remain voters will know that whatever opposition parties they vote for, the option of remaining in the EU will be put to them in a future referendum alongside a compromise Brexit which they might not want but which would be preferable to a No Deal Brexit.

A General Election is the legitimate way to approve or reject a No Deal Brexit. And if it is rejected, it is only right that voters can choose between remaining in the EU or leaving with a credible alternative Brexit.

Finally, choices can be made that will be both decisive and legitimate.