Brexit, Padfield, and the Benn Act

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.

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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.

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52 thoughts on “Brexit, Padfield, and the Benn Act”

  1. Succinct and apposite. Thank you.

    (Would it be impertinent to wonder why the author initially advised re. the recemt Supreme Court case that there was zero prospect of success, and gradually allowed the prospect of success?

    Was it simply down to the evidence – as summarised by the article on ‘the Missing Statement’ – or has the law been altere/developed?

    1. The Supreme Court ruling is a development in our constitutional law and I think it will be yearts before we have fully worked through all the implications.

      Legal orthodoxy was that the Counrts would hesitate to get involved in such politically charged issues and it required the truly extra ordinary action by the government in proroguing parliament to justify the courts to be willing to get involved. Almost certainly the courts would still not have got involved had the effect of prorogation not been to take one entire leg of the tripod of executive, legislature and judiciary out of the picture.

      With parliament prevented from sitting or carrying out any of their functions the courts felt that there was noone left apart from the courts to act as a check or a balance to a government that was willing to wreck the machine in order to get it to perform the way it wished

  2. Does the Padfield principle stop the powers in 8(1)(a) of the European Union (Withdrawal) Act 2018 from being used to repeal the Benn Burt act on the basis that it prevents Retained EU Law from functioning on the 1st of November? Those powers can do anything an act of parliament can do 8(5) and this isn’t one of the acts it can’t amend/revoke/repeal as specified in 8(7)(f,g).

    Those powers don’t appear to have a start date, but 8(1)(b) only does something when there is some deficient retained EU law to remedy. 8(2,3,4) appear to limit what 8(1)(b) can be used for, but they don’t apply to 8(1)(a) which can be used to nuke any obstacle that causes “any failure of retained EU law to operate effectively”. Is the Benn act such an obstacle?

    1. It is a basic principle of British law that any Act of Parliament can be set aside by a subsequent Act of Parliament.

      The key word here is ‘subsequent’.

      The 2018 is overridden by the more recent 2019 decision just as the Benn Act could be superceded by a still more recent Act but, till that is passed and receives royal asent, it remains supreme.

      Further, 8(1)(a) refers specifically to holdovers of European Law. The Benn Act, although passed in the context of Europe is a wholly Bitish construct and thus falls outside 8(1)(a)

      1. 8(1)(a) doesn’t just operate on retained EU law. 8(1)(b) does.
        8(1)(a) can monkey about with anything but the specific exclusions in 8(7)(f,g), which I mentioned for a reason. The intent of said monkeying about should be to make retained EU law operate, and anything done with a different intent would be an unlawful use of the power.

        Yes, the Benn act is subsequent and there is the doctrine of implied repeal but that doesn’t apply here, it doesn’t contradict that power in the earlier act.

        Things are moving fast and it remains to be seen if they will try and use this. I think it is arguable and if it is arguable for a few weeks that might be enough. We will get to the point where the eggs can’t be unscrambled by a UK court.

    2. Neither the Withdrawal Act nor the Benn Burt Act are “Retained EU law”.

      I’m not lawyer and haven’t read most of the Withdrawal Act as amended so if I’m missing anything, say.

  3. Thanks for the heads-up David. I am not a lawyer and I didn’t known about ‘Padfield’, but common sense suggested that if it was so easy to by-pass the Queen and Parliament, why hadn’t the Tory’s done so already

  4. Thank you. For the non-legally minded among us this has been an eye-opener.

    Can they really be this amateur? The Tory governments of the last few years (incl Cameron (!)) seem hell-bent on doing everything based on policies and strategies written on the back of an envelope. It makes more sense looking back on say, Micheal Gove in Education all those years ago, knowing that he had Dominic Cummings behind him. Could someone possibly think more than two steps ahead though? It’s exhausting for the country!

  5. A widely-held suspicion is that this is just one of many smokescreens being put up to mask HMG’s real intention – to bring back a deal and thus avoid the need for the extension request, but then deliberately fail to ratify it by 31 October with the result that we leave with no deal.

    1. Helen Mountfield QC reckons that the default isn’t that we crash out if nothing else happens but that Article 50 lapses and we remain in. Parliament is required to approve leaving, that is part of May’s deal which Parliament has rejected. Parliament hasn’t yet voted to take us out of the EU, it has merely approved giving notice of the intention to leave. Parliament needs to give approval to leave. The Government can’t do it unilaterally.

  6. My word! A constitutional argument that is readily understood by all and makes excellent common sense! How very refreshing in the current times!

    I think the current pretenders to HMG are a bunch of chancers and their legal advice has consistently been poor. This and the strategem you outline above probably explains the current “thinking”.

  7. I’ve unexpectedly arrived a weird place where I suddenly begin to care about this and worse yet, even enjoy reading it. Thanks for clarifying this.

  8. Hi David

    As a follower on Twitter and via this blog, I’ve seen your previous comments and thoughts on Dicey.

    Has the SC judgement now removed or diminished Dicey’s influence and how might this influence future judgements, if at all?

    Many thanks.

  9. David

    It would be helpful if you could paragraph your sentences (which I assume derive from Tweets) before transmitting them in this blog – you sound a bit disjointed and thus do not do your wise words justice

  10. Good and clear and brief. Padfield. Thank you.
    (Noted the contextual reference to “a brooch”. I wonder if its meaning will survive the centuries?)

  11. Nice clarification. I’m also a lawyer, but Padfield is a distant memory from university days. I agree with one of your respondents in that it will play well in front of the public if Boris et al are forced by the courts to act, rather than simply follow the legislation. We have a somewhat Trumpian government now. What an appalling vista a Boris/Trump alliance presents. I’m emigrating to the real EU next month. Good luck everyone.

  12. David, please would you do a post about how Parliament works (or is supposed to) that explains all the elements of Executive overreach we’ve seen since GE2017 in particular? We need things to counter the People v Parliament narrative, which is scarily gaining traction. Thanks.

  13. What are we to make of the report that the Government intends to argue that A50 notification takes precedence over Benn, as the former depends on EU law while the latter is UK law, and EU law trumps UK law. (Setting aside the obvious paradox).

    1. Article 50 specifically states that the Member State may leave “in accordance with its own constitutional requirements”, and the Benn Act constitutes such a requirement. It also specifically states that the Member State will leave after 2 years *unless* an extension is requested and agreed, and Parliament has required the Prime Minister to make that request. Accordingly, the conflict you suggest between EU and UK law does not arise – there would only be a conflict if Article 50 said, for example, that the Member State must be treated as having left after 2 years, but it clearly doesn’t say that.

  14. That’s clear.

    Paul Waugh says it is wrong to describe the Benn Act as a “Surrender Act” because it specifically states that Parliament votes on the offer from the EU. But presumably if Parliament were to vote to reject the offer then we would leave without a deal, which would break the law.

    If Parliament votes to reject the offer, would they have broken the law? Who would have broken the law in this case? Just MP’s who voted against it? All MPs? If Parliament accepts the offer, but some MPs vote against the offer, would those MPs have broken the law? If an MP votes against the offer but whether or not they have broken the law depends on what other MPs do, isn’t that legally not valid?

  15. You say that secondary legislation could not override the Benn Act, but what about a Henry VIII SI? Someone else mentioned EUWA 2018. I’m concerned about the Civil Contingencies Act 2004. Its regulations can override statute, amend statute or do things that could otherwise be done by some other statutory power. While the regs fall if Parliament doesn’t approve, their effects remain valid. Padfield can’t survive a new Act, so how can it survive an SI that can “do anything an Act of Parliament can do”?

    1. In order for the emergency powers contained within the Civil Contingencies Act 2004 to apply, there would have to be a war, terrorist attack, or other situation which threatens serious damage to human welfare, to the environment, or to the security of the United Kingdom. A Prime Minister being unable to get his central policy through Parliament, and being apparently less than willing to comply with an Act of Parliament that conflicts with that policy, clearly does not fall within that definition.

      1. In Section 1 of the Civil Contingencies Act 2004, the category “serious damage to human welfare” (s1(1)) includes an “event or situation” that “involves, causes or may cause” (s1(2)):

        “(e) disruption of a supply of money, food, water, energy or fuel,
        (f) disruption of a system of communication,
        (g) disruption of facilities for transport, or
        (h) disruption of services relating to health.”

        Not being able to get a policy through Parliament might, arguably, threaten any of these possibilities (as Remainers might be the first to agree). Whether it does so can be certified by ministerial order (s1(4)), which may even amend s 1(2) so that a specific event or situation fits within the category. The event or situation does not have to be within the UK (s 1(5), so a parkful of lorries at Calais might be said to suffice.

  16. “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.”

    Maybe, but the government could let it be known that they intend to appoint Nigel Farage as the UK commissioner for any extension period, i.e. they intend to cause as much disruption as they can during the extension.

  17. “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”

    But doesn’t the Benn act do the reverse: it frustrates the executive’s prerogative power in international relations? Why wasn’t Queens Consent required for the Benn act?

    1. In the first Miller case, it was held that the prerogative power over international relations cannot be used to take away individual rights, such as the rights derived from EU law. Accordingly, Parliament by passing the Act did not diminish the scope of the prerogative power beyond what it already is, and as such, Queen’s Consent was not required. Even if it was, Queen’s Consent is not a rule of law, but an internal rule of Parliamentary procedure that the House of Commons could decide to abolish at any time; moreover, under the principle of Parliamentary sovereignty, the Courts cannot refuse to apply an Act of Parliament simply because internal Parliamentary rules might not have been complied with during the passage of the Act.

  18. Thank you for the time and patience you take to explain this and other issues so clearly. As a non-lawyer, I really appreciate it.

  19. It is disconcerting, to say the least, to watch the UK Government inciting the UK courts to action so that they can blame the Government’s failings upon those courts. For them to then say the courts are wrong and to imply that judgements are aiding and abetting people (in and outside Parliament) who want to thwart Brexit, appears to be designed to incite ‘the people’ against Parliament and the Courts. These are dangerous days for representative democracy in the UK.

  20. David, I wonder if you could clarify something which is only semi-relevant to your post. As it appears to me, the only reason that this Government has actually failed in it’s attempts to circumvent long established legal protections is because they fail to hold a majority to pass new legislation.

    In the future – say after the next election, if they were to have a majority – presumably they could pass new laws in Parliament which could protect them from such anti-frustration mechanisms. I approach this matter with an assumption that the Government, whilst democratically elected, may not actually be following a mandate for which they were elected. Clearly, were that not the case, it would be difficult to argue against such legislation.

    To summarise: what if a majority Government shows disrespect for the law? They can create new laws to prevent them from being prosectuted.

    1. In theory, under the doctrine of Parliamentary sovereignty as currently applied and understood, Parliament could decide to abolish the Padfield principle or other fundamental constitutional principles. But in the extraordinary event of MPs voting to do so, the Courts might themselves be left with no choice but to take extraordinary measures, such as imposing an exception to the common-law rule of Parliamentary sovereignty. For example, in the 2005 case of Jackson v Attorney General, Lord Steyn said ” In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. Lord Hope continued “Parliamentary sovereignty is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament … is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”, and added that Parliament should not be able to pass legislation that “is so absurd or so unacceptable that the populace at large refuses to recognise it as law”.

  21. Thanks for making these things clear.
    Am I right to assume that Padfield would prevent Johnson exercising the UK’s veto (if this actually exists!) to reject his own request for an extension to Article 50?

    1. The UK, as the one making the request, would not be allowed under the European Council’s rules to take part in the decision as to whether or not the request should be granted. Accordingly, Padfield would not need to come into play.

  22. Thank you, this makes clear that direct obstruction will not work. However, until Parliament (the current one or a new one to be elected soon, probably) is able to vote in favour of a deal no advance is possible. So it is either a change of PM or no deal.

  23. A cancelling cover letter to the Benn letter might just refer to article 51 of the Vienna Convention 1969.

    This could get around Padfield because it would not really be a separate action of the prime minister; he would merely be informing the EU that the Benn letter itself was void ab initio.

    1. Article 51 refers to consent to a treaty, whereas it is at least arguable that an agreement to extend the period under Article 50 is not a treaty but an act carried out under the powers conferred by a treaty. Moreover, even supposing that an agreement to extend were considered to be a treaty, Article 51 refers to “coercion”, and being compelled by an Act passed by the democratically elected legislature cannot amount to coercion.

      1. On your first point, the treaty in question is the Lisbon Treaty itself. At issue is the consent to be bound by it after 31 October 2019.

        On the second, actions taken to enforce laws are coercive. The reason that they are not therefore illegal is because they have specific, and often limited, exemptions. If one was unlawfully detained, one may sue one’s captor for false imprisonment – it doesn’t matter whether the captor is a roguish kidnapper or a policeman without due cause. Due cause would make the policeman’s action legal, but doesn’t stop it being coercive.

        In the case of article 51 of the Vienna Convention 1969, there is simply no such exemption. This convention operates on the “Theory of Representation”, where are a state’s actions are discerned by reference to the actions of its representatives. What its legislature does is largely irrelevant, unless the action of that legislature is to replace the representative.

    1. For Boris to even ask any other Member State to consider vetoing his own request for an extension would arguably be in violation of the Padfield principle.

  24. Apologies if this is a stupid assessment or contains factual inaccuracies.

    The Benn act requires the Prime Minister of the UKofGB&NI to request an extension if the House of Commons does not give its consent to either a withdrawal agreement or leaving without a deal by October 19, 2019. This date is after the European Union Council has finished its meeting on October 18 which is the body which makes the decision to grant an extension, thereby requiring an extraordinary meeting before the next meeting which is not until December after the October 31st deadline has long passed.

    But there is going to be a special Saturday session of the House of Commons on October 19, 2019. So before the Benn act deadline has passed requiring the Prime Minister to request an extension, cannot the Prime Minister present the already agreed withdrawal agreement and political declaration to the House of Commons for a vote stating that there is no need for an extension because the House of Commons can now vote (effectively for a fouth time) in line with the Stephen Kinnoch amendment on that withdrawal agreement thereby rendering the request for an extension uncessary?

    The Prime Minister may be relying on the duplicity of a sufficient number of Labour MPs from leave majority constituencies (eg Kinnoch, Mann, Nandy, Onn etc) to vote for the agreement this time so that they can go back an proclaim that they compromised and delivered the triumph of the will of the people.

    If the House of Commons votes in favor, there would then be no need to request an extension. If not, it is game over and the prime minister having run out of options would then proclaim that parliament was deliberately thwarting the “will of the people” and forcing him to request an extension and his base voters would not hold his broken promise against him in the coming election.

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