Thursday, 5 September 2019

4 September ~ What happened

Updated 6 September:

Proceedings in the House of Commons on 4 September 2019 included the passage of the European Union (Withdrawal) (No 6) Bill (the No.6 Bill) through all its House of Commons stages. The Bill then proceeded to the House of Lords.  The Commons also held a vote, under the Fixed-term Parliaments Act 2011, for an early general election.


The Prorogation Order requires the prorogation of Parliament
no earlier than Monday 9 September and no later than Thursday 12 September.  The next session of Parliament is scheduled for 14 October.  Previous post - Prorogation announced.

Prorogation has an impact on legislation. First, a prorogation to 14 October will leave very little time to enact any further legislation required for Brexit.  It may be that there is a withdrawal agreement and, if so, a Bill to implement the agreement is required.  If there is to be a no-deal Brexit then legislation for that scenario may also be required.  Secondly, prorogation causes all Bills currently before Parliament to fall unless expressly carried over to the next session.

This is discussed, together with the impact on scrutiny of secondary legislation, in a post on the Constitutional Law blog - Eliminating effective scrutiny: Prorogation, No-deal Brexit, and Statutory Instruments - A. Sinclair and J. Tomlinson, ‘Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments’, U.K. Const. L. Blog (4th Sept. 2019.

Political background:

The Prime Minister is on record as stating that, although he prefers the UK to leave the EU with a deal, he is prepared to take the UK out without a deal.  Mr Johnson has had discussions with European Leaders (including Chancellor Merkel and President Macron) and some talks have been taking place between the Prime Minister's Europe Adviser David Frost and EU officials - see Reuters 4 September.  At the time of writing, no fresh proposals have emerged from those discussions.  In the House of Commons, a majority of MPs are opposed to leaving the EU without a withdrawal agreement.

Whether individuals actually voted for no-deal in the 2016 referendum is very debatable. The referendum simply asked - "Should the United Kingdom remain a member of the European Union or leave the European Union?”  Nothing on the voting paper indicated the type of Brexit that would be sought.  It can be argued that leave voters accepted the possibility of no-deal because that possibility is built into the text of Article 50 of the Treaty on European Union but it must be doubtful whether, during the referendum, most leave voters actually addressed their minds to the no-deal scenario. It seems far more likely that such voters were swayed by the arguments of the leave campaign that leaving would be with a "good deal".  However that may be, the Johnson government has raised the profile of no-deal Brexit occurring and, in the absence of a ratified withdrawal agreement, it will occur on Exit Day (31 October).  It is unsurprising that, after the summer recess, MPs have sought to prevent no-deal.

It was against that background and the impending Prorogation that MPs dealt with the No.6 Bill on 4 September.

The No.6 Bill:

The Bill was presented and received its First Reading.  The Speaker then ruled that the Bill did not require "Queen's Consent" - see Hansard.  I will not dwell on this here since Queen's Consent was discussed in this earlier post.  If the No.6 Bill eventually receives Royal Assent - which is required before any Bill become an Act - then the issue of whether Queen's Consent was required will no longer matter.  [For further on Queen's Consent see this article by Robert Craig - LSE - Proponents of the new Bill to stop No Deal face a significant dilemma over Queen's Consent].

The Bill then moved on and passed its second reading by a vote of 329 to 300 - Hansard 2nd Reading debate.  Committee stage followed by way a "Committee of the Whole House" and that concluded with Third Reading by a vote of 327 to 299 - Hansard Committee Stage.

The Bill then proceeded to the House of Lords where numerous amendments were tabled by pro-Brexit peers with a view to talking the Bill out.  However, it was announced that agreement had been reached to allow the Bill to complete all its Lords stages by Friday - BBC News 5 September. The Conservative chief whip in the Lords announced a breakthrough on the bill in the early hours after talks with Labour.

General Election:

Following completion of the stages of the No.6 Bill, the House of Commons held a vote under the Fixed-term Parliaments Act whether to hold an early general election.  This was defeated (298 votes to 56) because, in these unusual circumstances, opposition parties chose to abstain rather than agree to an election before the No.6 Bill was at least enacted into law.  See Hansard for the debate

It may be that concluding the No.6 Bill may yet pave the way to a further vote under the Fixed-term Parliaments Act for an early election.  Once the legislation is in place it could be that the Opposition opts to vote for an election. Some Opposition MPs will probably not wish to concede an early election until after 31 October.

In the courts:

In Scotland's Court of Session (Outer House) Lord Doherty ruled against a judicial review brought by Joanna Cherry QC MP and others - Cherry [2019] CSOH 70. The petitioners claimed that the prorogation of Parliament was unlawful - previous post 29 August. An appeal is to be heard by the Inner House on Thursday 5 September - Lords Carloway (Lord President Court of Session), Drummond Young and Brodie.

In London on 5 September, a judicial review will be heard by the High Court (Lord Burnett CJ, Sir Terence Etherton MR and Dame Victoria Sharp P) - The Guardian 5 September. This judicial review is brought by Gina Miller with others intervening.  The challenge is over the legitimacy of the prime minister’s advice to HM The Queen regarding prorogation. The skeleton argument on behalf of Gina Miller may be read via Mishcon de Reya, Solicitors (5 September).  The skeleton argument on behalf of the Prime Minister may be read at Dropbox.

In Northern Ireland a similar case has been brought by Mr Raymond Mccord who argues against prorogation and alleges that imposing a No-Deal Brexit on Northern Ireland will breach the Good Friday Agreement.

The Guardian 5 September - Government forced to reveal confidential memos on prorogation

Update 6 September:

In the Gina Miller litigation, the High Court held that the Prime Minister had not acted unlawfully by proroguing Parliament. Permission given for appeal to the Supreme Court UK.  Resaons for the decision to be give later.

In the Scottish case the Court of Session Inner House has made avizandum (i.e. taking time to consider judgment) and has refused to grant interim orders sought by the petitioners.  The court hopes to advise its decision on 11 September.

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