6th October 2019
Years, even decades, can pass without there being anything significant to note about the UK constitution.
Now there seems to be something almost every day.
Constitutional law should not be this exciting.
The law and policy highlight of the week just gone was not any political announcement, still less some breathless quote from an unnamed “Number Ten source”.
It was instead a passage in a legal document in a court action.
The action is the one in Scotland for a court order to oblige the prime minister to send the Article 50 extension request in the event of there being no Brexit deal by the end of this month.
(In Scotland, these court orders are called interdicts, and their equivalents in England and Wales are known as injunctions.)
The passage was tweeted by Jolyon Maugham, who is party to the case
Here are the paragraphs Aidan O'Neill QC, Counsel for @DaleVince, @joannaccherry and myself, has just read out. They are from the written case of the Prime Minister and if the Prime Minister promises the court he will comply we need take no further time. Why will he not? pic.twitter.com/YnYLJ0iMhn— Jo Maugham QC (@JolyonMaugham) October 4, 2019
The content of the passage means that the UK government has affirmed that it will make an application for an extension under the Benn Act in the event of a possible no deal Brexit.
The passage also affirms that, in accordance with the Padfield principle, the government will not do a thing to frustrate the operation of the Benn Act.
Normally, such a passage would not be exceptional: what the government is doing is confirming that it will comply with the law in general and will take certain specific mandated steps in particular.
This express and formal admission contrasts with (even contradicts) the political statements of the government that the UK will leave the EU on 31st October, deal or no deal.
How can these positions be reconciled?
The first thing to understand is the purpose of the passage in the quoted legal document: why would the government say this to the court?
Here the important thing to realise is that the government is facing an application for a court order.
One common response for any party facing an application to a court for an injunction (or interdict) is to assure the court that such an order would be unnecessary.
Sometimes these assurances can be given as formal undertakings intended to have binding effect: a sort of self-inflicted injunction (though I do not know whether the government offered formal undertakings in this case).
The intention is that the court accepts those assurances in lieu of making a formal order.
On the face of the document quoted in that tweet that is what the government is doing in this case.
Such statements are not made lightly, as breach of such an assurance (especially if it is given as a formal undertaking) can have serious legal consequences.
The breach itself can be the basis of a fresh court order, and there can even be contempt proceedings.
In other words: somebody senior would need to have signed off on that assurance being made.
The minister superintending the case for the government would be the attorney-general.
Interestingly, this is reported in today’s Mail on Sunday about the attorney-general Geoffrey Cox.
If this is correct, this would accord with the attorney-general signing off on that statement to the court.
The attorney-general would not be the minister sending the extension application – it would be the prime minister.
The matter would not be within the control or power of the attorney-general.
So for that statement to be made to the court it would seem to me that the assurance would also need to have been signed off by the prime minister personally.
It is difficult, perhaps impossible, to imagine that statement being given to a court without it being approved directly by the prime minister.
One suspects that the prime minister was formally advised by government lawyers that such a statement was the best (perhaps only) way a formal court order could be defeated.
If the statement to the Scottish court was approved by the prime minister then we have the situation that Number Ten is (in effect) saying one thing to the Scottish court to avoid an interdict and another thing to its political and media supporters to avoid embarrassment or rebellion.
Take for example this tweet from Steve Baker, the leading pro-Brexit backbench Conservative MP (and former Brexit minister).
This tweet was sent in response to the news breaking about what was said to the Scottish court.
A source confirms all this means is that Government will obey the law.— Steve Baker MP (@SteveBakerHW) October 4, 2019
It does not mean we will extend.
It does not mean we will stay in the EU beyond Oct 31.
We will leave. https://t.co/LuVt45rMAr
Baker is a controversial politician but not a dishonest one.
If he says a source told him that then that must be the case.
But the source is either hoodwinking Baker, or is hoodwinked themselves.
For the statement to the Scottish court goes further than confirming that the government would comply with the law in general, but also that specific mandated actions will take place if there is no deal.
And these steps could end up with there being an extension and the UK not leaving on 31st October.
Of course, there could be an intervening political event which means an application for an extension is not accepted by EU27.
But such a contingency is certainly not definite and so, all other things being equal, what Number Ten is telling Baker and others is not the same with what it is formally, under pain of possible legal consequences, telling the Scottish court.
If the government’s statement to the Scottish court is correct then there appears no room for wiggles.
The amateur hour lawyering of “Number Ten sources” on possible side letters to EU27 and orders in council are all met by the assurance at (d) of the quoted passage.
We find out tomorrow if the Scottish court accepts the assurances or if it makes an order.
In my view, it would be prudent for the court to make an order given the open statements of the prime minister, such as this which actually tweeted during the case.
Perhaps the prime minister in his heart wants there to be an order, so that he can have something to blame.
In the last few days there have been reports of other ways in which the government believes it can head off an extension.
There is mention of the Hungarian government providing a veto – despite Hungary being a beneficiary of the financial settlement in the proposed deal (and Hungary also being unlikely to act not in concert with its Visigrad allies and neighbours, or to upset Germany and Austria).
There is also mention from “Number Ten sources” of the UK threatening to disrupt EU proceedings, which is ironically the reverse of the UK threatening to leave.
It seems Number Ten thinks threatening to stay is now its strongest card, as opposed threatening to leave which it thought was its strongest card until now.
(And the scope for real disruption is slight.)
The reality is that the UK is locked into a legal process governed by Article 50 and the Benn Act, and now only something outside of the government’s control which can affect the outcome of the operation of those laws.
But what of a deal?
Last week, and to its credit, the UK did publish a plan for resolving the backstop issue which is one main reason (if not the main reason) why the current deal is unacceptable.
Had such a plan been published months ago, or years ago, in the Brexit process then maybe the plan could have been the basis of constructive discussion and movement.
But rush-published in the weeks before the latest departure date the proposals were insufficient, despite their glimmers of realism.
EU27 seem unimpressed, and Ireland finds the proposals unacceptable.
Unless something momentous now happens, there does not look like scope for a deal before 31st October.
And so, the following three propositions today seem more likely than not to be true:
1. there will not be a deal in place before 31st October
2. the UK will request an extension
3. EU27 has no particular reason to refuse that extension
Of course, events can rebut each of these propositions, and in a few weeks time the UK may well be outside of the EU.
But, that passage in the government’s own formal court statement seems to close off the one thing entirely within the UK’s power and control – and the lack of a deal and the acceptance of the extension are things outside the UK’s power and control.
The UK government is in a box, and it is difficult to see how it can get out of it.
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