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Extension Time, Election Time – But is it Brexit Time?

For the third time, and in agreement with the UK, the EU has granted the UK an extension to its EU membership. But this extension feels different for two reasons.

First, the extension offered by the EU was a response to a letter sent – but not signed – by the UK Prime Minister Boris Johnson acting in compliance with the so-called “Benn Act” passed by Parliament to prevent the UK leaving the EU on 31 October without a Withdrawal Agreement unless Parliament so decided. The statutory letter asked the EU to grant an extension to the Article 50 withdrawal process until 31 January 2020. Despite some debate about a shorter extension to maintain pressure on UK MPs to pass the European Union (Withdrawal Agreement( Bill introduced to give domestic legal effect to the revised Withdrawal Agreement – and so pave the way towards the UK’s exit from the EU – the European Council took the simpler option of agreeing to the 31 January deadline. The European Council’s decision finesses this by stating that if the respective ratification procedures are completed prior to this deadline then the Withdrawal Agreement will enter into force – and the UK will leave the EU – on the 1st of the following month. However that possibility is in effect rendered redundant by the second difference with this extension namely that it is less about facilitating approval of a Withdrawal Agreement and more about creating time for an early General Election.

Prime Minister Johnson tried – and failed – three times to secure the necessary two-thirds majority among MPs to hold an early election in terms of the Fixed-term Parliament Act. Unless an extension was agreed with the EU, and with the PM having the power to set the date of the election, MPs did not trust the Prime Minister not to use an election to engineer a “No Deal” Brexit. However, with an extension given by the EU and inspired by a proposal floated by the Scottish National Party and Liberal Democrats, the UK Government introduced the Early Parliamentary General Election Bill to obtain an election on 12 December. Crucially it would only take a majority of MPs for the Bill to pass, with the Bill going through all its stages in the Commons in one day.

The SNP/LD proposal – and the Labour amendment to the Bill – suggested that an early election take place on 9 December  meaning that Parliament would be dissolved on Friday 1 November. The Government’s preferred election date of 12 December would see Parliament dissolved on 6 November. The inclination of Opposition parties for the earlier date was designed largely to avoid the Government attempting to get its Withdrawal Agreement Bill passed by Parliament on an accelerated timescale before 6 November leading to a UK withdrawal from the EU on 1 December. Certainly, Opposition parties did not want Boris Johnson to fight an election having delivered Brexit. No doubt recognising that it would be difficult to get MPs to do what they previously refused to do, namely to back a programme motion to push the Withdrawal Agreement Bill through, the Government accepted that it would not be in a position to secure backing for its Withdrawal Agreement Bill. With the Article 50 extension also in place, the Government was able to resist attempts to bring forward the election and, provided there is not difficulty with the House of Lords, Parliament is set to make 12 December the date of the next UK General Election.

This will be the second early election called by a Conservative Prime Minister with a view to getting momentum behind their Brexit strategy. With a greater opinion poll lead than that currently enjoyed by Boris Johnson, Theresa May tried in 2017 to change the parliamentary arithmetic to ensure an easy passage of her Brexit policy through the Commons. Instead  her party lost its majority with all that entailed in terms of her inability to get approval for her Withdrawal Agreement  on multiple occasions and the influence the election result gave to the Democratic Unionist Party as her ‘confidence and supply’ partner.

The outgoing President of the European Council Donald Tusk tweeted that the adopted extension “may be the last one” with patience wearing thin with the UK’s continuing lack of clarity on its Brexit intentions. However, the outcome of a December election is no more certain that the situation in 2017.  A swing to the Lib Dems is simply not going to see them take office and fulfil their commitment to revoke the UK’s withdrawal notification if elected. Even a 10% swing would only increase their representation in the Commons by a dozen or so seats. For the Conservative Party, Boris Johnson’s strategy is predicated on his party taking vote share from the Brexit Party and winning seats from Labour. But Johnson faces the loss of seats in Scotland to the SNP as well as those marginals that the Lib Dems might pick up.

If Boris Johnson fails to win either a working majority or to be in a position to form a minority government then the Brexit impasse won’t be resolved by the election and the UK may find itself it no clearer position on Brexit. That could give EU leaders pause to consider whether the offer of a fourth extension is really desirable. However, if Labour is able to command a majority or to form a minority government then a further Brexit referendum would seem inevitable and would require the UK to seek a fourth extension.

The prospect of a fourth extension is not a happy one for either the UK or the EU. It would also need to be for a longer period of time than the third extension of three months. Even assuming that a referendum was put together quickly, it is hard to see this taking place before June 2020. All of which is awkward given that had the Withdrawal Agreement entered into force, the UK and the EU would have needed to adopt by the end of June a decision on whether to extend the “transition period” for one or two years. As I explain here,  is easy to forget that every single extension of the Article 50 process reduces the duration of the transition period and so limits the amount of time available for the EU and UK to do the really difficult work of negotiating an agreement on their future relationship. The prospect of an extension for a further referendum then begs the question of whether any transition period between exit and a new relationship has any real purpose. That may leave the EU with an uncomfortable choice between refusing a further extension – and so precipitating a No Deal Brexit – or offering a much longer extension to the UK’s membership with a view not only to facilitating a further referendum but potentially opening negotiations that would deal with withdrawal and the future relationship in one package, something which the EU has said it could not do.

Whether or not the UK leaves the EU on 1 February 2020 is largely dependent on the electoral performance of the Labour Party. Labour has been in Opposition for almost a decade. That period has seen the austerity policies of the Conservative-Liberal Democrat Coalition Government followed by the intensely divisive 2016 EU referendum of David Cameron’s Conservative Government. His Conservative successor Theresa May threw away her party’s parliamentary majority and ultimately failed to forge a political consensus on Brexit. The current incumber of No 10 has a certain charisma and is no doubt self-confident after the revision of the terms of the Irish Protocol. But he is not trusted by many and scandals about his personal life and business connections may yet tarnish him. The Windrush affair and the repercussions of the Grenfell Tower tragedy also hang over the Conservative Party. This ought to be an election that any credible major Opposition party should win.

On 13 December it should be clearer whether this is Boris Johnson’s or Jeremy Corbyn’s time of political triumph. But will it be Brexit Time?

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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.

Conclusion

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.

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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.

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“Shall” I Explain Why this Spectator Story is “Utter Bollocks”?

The editor of The Spectator, Fraser Nelson has been pushing on Twitter a story by Charles Day on the Spectator blog that there is a legal onus on the EU to “to do a Brexit deal”. The crux of the argument is the mandatory language used in Article 50 TEU which apparently places legal duties on the EU – but not the UK – to negotiate AND conclude “a deal”. In a (later deleted) tweet, Mr Nelson stated that:

The law is clear: the EU is obliged (by its own rules) to offer a deal that Parliament can accept says Charles Day.

I described this claim as “utter bollocks’ in a tweet which got rather a lot of attention. So I thought I should explain my objections. It won’t take long.

Mr Day’s position is this:

Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

This apparently derives from the wording of Article 50 TEU which states:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

There is clearly a lot of mandatory language here about what the EU “shall” do once a state notifies the EU of its intention to withdraw.

However, the use of the word “shall” is simply demonstrative of the steps which the institutions “shall” follow in the negotiation and conclusion of an agreement. In this respect, Article 50 merely echoes Article 218 TFEU which sets out in a generic fashion the standard operating procedure to be following by the EU in negotiating international trade agreements. As a reminder, Article 218 TFEU states this:

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. 

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

The same mandatory language is used in the treaties but to do no more than establish the correct steps in the procedure to be followed by the institutions.

Now, would anyone seriously contend that this mandates the EU to do a trade deal with the U.S.A. rather than simply setting out what process to follow should a negotiation be initiated and an agreement be reached that would be capable of being approved and concluded by both sides?

Not only does Mr Day misunderstand the legal significance to be attached to this wording, Mr Nelson extrapolated further in his assertion that the legal obligation extended to the content of the deal insofar as it had to be acceptable to the UK Parliament. Following the logic and the analogy earlier, this would be equivalent to stating that the EU was under a legal obligation to do a trade deal with the U.S.A. that the US Congress would accept.

Politically, it is clearly inadvisable for the EU and the UK to negotiate a deal which – recognising that it has to be approved by both the European Parliament and the Westminster Parliament – they know could not command approval by those institutions. That is why on the EU side, negotiators have kept the European Parliament informed throughout the negotiations.

It would be quite wrong, however, for the EU to interfere in the UK’s constitutional system for parliamentary approval and therefore the responsibility for the negotiation of a deal acceptable to the UK Parliament necessarily has to be a responsibility of the UK Government.

Which is also why the EU has insisted that if the UK wants something different from the Withdrawal Agreement it negotiated with the EU, the UK has to demonstrate what it wants and that what it wants will obtain a majority in the Commons. It is not for the EU to second guess the UK Government or to interfere in the constitutional relationship between the Government and Parliament.

The blame-shifting for a No Deal Brexit is clearly well underway. But can we avoid the utter bollocks of pretending that EU law demands that the EU offers the UK what it wants, not least when three years on from the referendum, we still have very little idea what that might be? Shall we?

Kenneth Armstrong is Professor of European Law at the University of Cambridge and author of Brexit Time – Leaving the EU: Why, How and When?