27th September 2019
One welcome feature of this week’s Supreme Court decision on the prorogation issue was that it was openly and unapologetically a “constitutional” judgment.
It proudly wore its constitutional significance like a judicial robe, or like a brooch.
This is not the case of previous constitutional cases.
Take the 1968 House of Lords case of Padfield, for instance.
You can read Padfield without realising its constitutional significance (and many first year law students do).
But as interpreted and applied in subsequent cases, the Padfield principle is a fundamental rule of the UK constitution.
Put simply: it is not open to a Minister to do a thing (or not do a thing) that would circumvent or frustrate an Act of Parliament.
And this makes sense: there would be no point in having Acts of Parliament if ministers could casually sidestep the legislation.
So, in the context of Brexit, where there is now the Benn Act obliging the Prime Minister to seek an extension of the Article 50 period so as to avoid a No Deal Brexit, this principle means:
- a minister cannot send a side letter to the European Union saying that the UK does not really want an extension and asking EU to reject the application
- the government cannot use delegated or secondary legislation (or Orders in/of Council) to rob the Benn Act of effect
And so on.
The response to each of these clever ideas is simple: Padfield.
Unless the government source behind such wheezes explains how the Padfield principle can also be sidestepped then it is just legal illiteracy and amateur lawyering.
These suggestions would not even cause any delay, to “run down the clock”: the law is so basic here that the High Court would not need more than a few hours before granting a remedy preventing such unlawful behaviour.
It may be that the real intention with these suggestions is to get the courts to intervene because it “plays well” politically.
But such infantile tomfoolery is not a good reason for the law not to be upheld.
All because someone wants to break the law to show off to others, it is not a reason for the law to not be applied.
Thank you for reading me on this new(ish) blog.
I expect to be blogging here more often, instead of spending time on Twitter.
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