Wednesday 3 April 2019

Legal controversies arising with Brexit

The United Kingdom's uncodified constitution is capable of producing interesting and potentially difficult legal controversies.

A prime example was the Miller / Dos Santos litigation concerning whether the Prime Minister could, using prerogative power, give the notification under Article 50 TEU to the European Union that the UK had decided to leave.  A majority of the Supreme Court held that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.

Legal power to request extension:

An extension under Article 50 was granted by the EU - previous post 22 March.   A question raised by some lawyers was whether an Act of Parliament was required to authorise the Prime Minister to request an extension.  

In a post on the UK Constitutional Law Association blog, Robert Craig argued that, unlike revocation, the treaty prerogative was a sufficient legal basis in domestic law for a brief extension of the Article 50 process on the international plane see post by Robert Craig.

Update - An action has been commenced in the High Court on this question - see Daily Mail 3 April.

Legal power to revoke:

There is no doubt that, as a matter of EU law, the UK may revoke its Article 50 notification.  This was decided by the Court of Justice of the EU in litigation from Scotland - Wightman and others v Secretary of State for Exiting the EU - see post 10 December 2018.

It has been argued by Professors Gavin Phillipson and Alison Young that an Act of Parliament would be required to permit revocation.  They argue that the applicable principle is that the prerogative may not be exercised in a way that frustrates the intention of Parliament as expressed in statute.

In particular, they argue that this "frustration principle" would apply in relation to the European Union (Withdrawal) Act 2018 given that the whole purpose of the Act is to facilitate the UK’s actual exit (not its mere initial intention to exit) from the European Union.

A power to revoke could perhaps have been included in legislation.  Such legislation could have provided for conditions to be met before the power could be used - e.g. resolutions in Parliament.   Politically, the government has set its face against revocation since it runs contrary to the referendum outcome.

This question has not been settled in the courts and, if revocation arises, the government would do well to ensure that legislation is brought forward to give statutory power to revoke rather than rely on prerogative.

Prorogation / Royal Assent refusal:

John Finnis is an eminent legal scholar - see Oxford Faculty of Law.  He was Professor of Law and Legal Philosophy at the University of Oxford from 1989 to 2010, where he is now professor emeritus.

In an article in The Telegraph 1 April,  Finnis wrote - "The legal and democratic principles of our constitution now point to one resolution of the EU withdrawal crisis:  prorogation of Parliament for two or three weeks, so that ministers can settle down to exercising their abundant statutory and prerogative powers to prepare for the immediate consequences of a no-deal withdrawal on April 12."

If Parliament is not prorogued then Finnis goes further.  He contends that, if Parliament generates further Brexit-related legislation with which the government disagreed, it would be "proper and appropriate" for the government to advise HM The Queen to refuse Royal Assent to such legislation.

So, Finnis argues (1) remove Parliament from the scene and, if that is not done then (2) advise refusal of Royal Assent.  Such propositions are, frankly, astonishing but could they have legal purchase?

I considered PROROGATION in a post of 24 January 2019 and Refusal of Royal Assent in a post of 22 January.

A response to John Finnis came from Professor Mark Elliott - Professor of Public Law and Deputy Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine’s College, Cambridge.  This is a strong counter argument to Finnis.

See also the article by Thomas Poole at LRB blog 2 April 2019 - The Executive Powre Project

Finnis has adopted an exceptionally pro-executive power stance which sees Parliament as a body to be sidelined if it is acting in a way which the executive regards as inconvenient to executive aims.

Prorogation of Parliament and also Royal Assent are prerogative powers in relation to Parliament - see Parliament - Taming the Prerogative - 2004.  They are part of a wide array of often ill-defined powers held by the Crown but they are, by constitutional convention, exercisable on the advice of Ministers.   The powers are extensive in areas such as foreign affairs and defence and give Ministers considerable scope for action but a key role of Parliament is to scrutinise the exercise of such powers.

It is remarkable that, in the 21st century, we continue to have powers which are, in practice, exercisable by Ministers but which could possibly enable Ministers to sweep aside Parliament and to bring HM The Queen into an area of immense political controversy by advising her to refuse Royal assent to a bill duly passed, as is required, by both House of Parliament.

The day must come when the conditions for use of legal powers such as Prorogation and Royal Assent are better defined.

Update 18 April 2019 - see this article on UK Constitutional Law Blog.   J. Crampin, ‘Precedent for Delaying Royal Assent: A Response to Professor Finnis’, U.K. Const. L. Blog (17th Apr. 2019) (available at

Letter to The Times:

A letter to The Times 3 April - claims that it would be "clearly unconstitutional for the Government to attempt to veto Brexit-related (or indeed any) legislation by advising the Queen to withhold Royal Assent."  The letter expresses widely held legal opinion contrary to that of Finnis.

A new constitution?

Could a new constitution fix Britain's broken democracy?  This is the question which an article in Prospect seeks to answer.

No comments:

Post a Comment