The 128 chilling words in the Scottish case

8th October 2019

At paragraph 43 of the Scottish court judgment this blog discussed yesterday is this passage:

“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.

“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.

“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”

These 128 words are chilling for the UK government

What the judge has done is to make it that if the government breaks these averments then it will be a serious professional matter for Lord Keen, the Advocate General and the UK government’s chief law officer for Scotland, and it will also have severe other legal consequences – as if the government had broken an undertaking or a court order.

(The Advocate General is the Scottish counterpart to the Attorney-General in the jurisdiction of England and Wales.)

Put succinctly: if the government breaks the averments then Lord Keen could be thrown out of the profession, and the government would itself face sanctions.

Lord Keen is now obliged to ensure the UK government keeps its promises to the court.

And here it is significant that the judge is Lord Pentland.

He is himself a former Scottish law officer, as Solicitor-General for Scotland in the Major Conservative government.

As a former law officer, Lord Pentland knew exactly what professional button to press and, although the UK government did not give a formal undertaking, the averments have been taken to be just as firm – and just as consequential if breached.

The averments that the government will comply with the Benn Act, and (as importantly) will do nothing to frustrate the Benn Act, are serious words with serious consequences.

The case is being appealed – and it may be the appeal judges impose an order out of prudence.

And some Brexiters may welcome an order, as something to blame.

But what Lord Pentland has done is avoid an order and instead made Boris Johnson’s promises matter just as much as if an order was made.

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Boris Johnson has surrendered to the Surrender Act

7th October 2019

The publication today of the judgment in the Scottish case against prime minister Boris Johnson is significant.

On the face of it, the decision was a defeat for the petitioners.

Their attempt to get a formal court order against the government, so as to oblige the government to comply with the Benn Act (the so-called “Surrender Act”) in the event of a No Deal Brexit, did not succeed

It is that failure which has been in the headlines of the news reports.

But those headlines are misleading.

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The government sought to defeat the petition by offering promises that it would comply with the Act.

This offer of surrender to the Surrender Act was made in court documents before the hearing.

Today that offer of surrender to the Surrender Act was accepted.

Now, as long as the other conditions for triggering the Benn Act are met, it is now impossible to see how the government can avoid compliance with the Act.

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The starting point is to know that one way a party facing the prospect of a court order heads off that order is by committing to the court that an order is not needed.

This is routine litigation practice.

And that is what the UK government did in this case.

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In paragraph 37 of the judgment, the government’s promises are set out:

“…averred that the Prime Minister accepts in relation to the 2019 Act:

(a) That, subject to section 1(5), in the event that neither of the conditions set out in section 1(1) and (2) is satisfied, he will send a letter in the form set out in the schedule by no later than 19 October 2019: section 1(3) and (4).

(b) That, subject to section 1(5), in the event that the European Council (“EC”) decides to agree to any extension for the period specified in the letter, he is obliged immediately to notify the President of the EC that the United Kingdom agrees to that extension: section 3(1). 12

(c) That, subject to section 1(5), in the event that the EC decides to agree to an extension until a date other than the date specified in the letter, he is obliged to notify the President of the EC within the period specified in section 3(2) that the United Kingdom agrees to that extension, this obligation being disapplied if the House of Commons has decided not to pass a motion of the kind specified in section 3(3).

(d) That he is subject to the public law principle that he cannot frustrate its purpose or the purpose of its provisions. Thus he cannot act so as to prevent the letter requesting the specified extension in the Act from being sent.”

Here (a) to (c) mean the prime minister confirms he will comply with the detailed provisions of the Benn Act, and (d) confirms he will comply with the Padfield constitutional law principle that he will not frustrate the purpose of the Act.

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Paragraph 38 then sets out that these “averments” were “the first detailed public expression of the Prime Minister’s intentions with regard to the legal obligations imposed on him by the 2019 Act”.

The petitioners said this was not enough and that the government could not be trusted.

The petitioners had a point and a prudent court could grant the order sought (and perhaps on appeal the court may go that bit further).

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If we now go to paragraph 41, you will see the general commitment from the government about its intention behind these averments, and this is crucial:

“…the government had now made their intentions entirely clear. They would comply fully with all the requirements imposed on the first respondent by the 2019 Act and would not seek to frustrate its purpose.”

The judge accepted the averments (at paragraph 42):

“I consider that the averments (and the intentions of the Prime Minister as set out by Mr Webster) confirm the position to be that (a) the first respondent is subject to the obligations of the 2019 Act; (b) in the event of neither of the conditions in section 1(1) or (2) being satisfied, the first respondent will comply with section 1(4) no later than 19 October 2019; and (c) that he will not frustrate the purpose of the 2019 Act or the purpose of any of its provisions.

“In other words, there can be no doubt that the [prime minister] now accepts that he must comply with the requirements of the 2019 Act and has affirmed that he intends to do so.”

And then at paragraph 43:

“The Advocate General has set out clearly and unequivocally the Prime Minister’s intention to comply with his statutory duties under the 2019 Act.

“This has been done so by way of detailed and specific averments in written pleadings put before the court on the professional responsibility of those acting for the Prime Minister and the government and with the express authority of the Advocate General for Scotland; he himself is, of course, an officer of the court.

“The Prime Minister and the government having thus formulated and presented to the court their considered legal position, there is no proper basis on which the court could hold that they are nonetheless liable to fail to do what they have in effect undertaken to the court that they will do.”

The emphasis on the Advocate General’s personal and professional responsibility as an officer of the court is especially eye-catching.

In paragraph 44 the judge discusses the “political” statements which indicate the government may not be serious – but this discussion only underlines the seriousness of the formal averments to the court.

And then at paragraph 45 is this extraordinary passage:

“I would add only this. I approach matters on the basis that it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the Crown for the Prime Minister or the government to renege on what they have assured the court that the Prime Minister intends to do.

“As the Advocate General’s note of argument says: ‘As already noted, the Prime Minister is well aware of his duty to obey the law, including the frustration principle, and is and will continue to be advised in the usual way on any issues as to the lawfulness of his proposed actions.'”

Not only would a breach of the averments be a discourtesy to the court, the judge stated in emphatic terms that it would be destructive both of the core principle of constitutional propriety and of the core principle the mutual trust that is the bedrock of the relationship between the court and the Crown.

Serious, serious stuff.

I am not a Scots lawyer, and I do not know what the formal sanction would be for a breach of an averment.

Had the averment been placed as a formal undertaking, I understand a breach could be the basis of an order as well as a committal for imprisonment.

But a judgment in these terms makes it plain that a breach of an averment would be regarded as serious as a breach of an undertaking or indeed of an order.

The judge accepted the offer of averments – but this acceptance was in such stark terms so as to remove any wiggle room without a constitutional crisis and/or an immediate coercive order.

The case is now going to appeal, and it may be that the higher court makes the order sought – but whatever happens on appeal the government’s averments would still stand.

In view of today’s Scottish court judgment there is no plausible way the government can avoid compliance with its averments, whatever the higher courts say

British politics will now be about how soon Brexiters and political journalists realise that the prime minister is committed to complying with the Benn Act, regardless of what is said outside of court.

And one added merit of today’s decision is that there is no order for the Brexiters to point to, so as to blame the judiciary.

The promises – the averments – were made by the prime minister himself.

Boris Johnson made the promises required.

The prime minister surrendered to the Surrender Act, and today that surrender was accepted.

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What is a constitution and what is constitutional commentary?

The Ideal City, artist unknown

7th October 2019

Constitutional law is currently exciting, and this is a bad thing for constitutional law should not be exciting.

Constitutions set the parameters of politics, and so if those parameters are being constantly tested then that shows there is something wrong about our politics.

All that said, however, these are good days for being a constitutional commentator

In this post I want to take a step back and set out how I go about being a constitutional commentator: how I approach, think about and communicate emerging constitutional issues.

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The first thing to establish is that I am not an expert.

(I know I must not be an expert, as I am followed on Twitter by Michael Gove.)

I do not have a doctorate or other research degree in the field; I have published no learned volumes or journal articles; I hold no academic position nor have been counsel in a leading case.

I am instead a constitutional geek with a laptop who likes explaining things – and, where I can, I happily defer to genuine experts.

But to be a commentator about anything – unless you are content with producing shallow abuse or easy superlatives – you need to have a way of thinking about your subject.

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So what do I mean by the word “constitutional”?

Here the starting point is an understanding of “constitution”.

Every polity has a constitution, in that there can be a descriptive answer to the question of how that polity is constituted.

A constitution provides for how the elements of the state are arranged; what each element of the state does and does not do; how tensions between those elements of the state are resolved; and the relationship of each element of the state with the individual.

The typical way of thinking about the UK constitution is in terms of institutions: the Crown; Parliament; the government; the judiciary; the devolved administrations; and so on.

Another way is to think in terms of functions: policy-making, decision-making, rule-making; administration; scrutiny and accountability; adjudication and dispute resolution; and so on.

In general terms, an institutional approach to the UK constitution accords with a functional approach – that is, for example, the government tends to be responsible for policy-making and administration – but the fits are not perfect.

For instance, rule-making is a function which can be done by the executive (statutory instruments), parliament (primary legislation); and the judiciary (“development’ of the law and precedents).

In a happy polity there is not much issue about what each element of the state does.

And when there are tensions – such as whether the government or parliament get to make a notification under Article 50, or whether the government can be obliged to publish certain papers when required by the legislature – there are means of resolving those tensions before they harden into contradictions.

A constitutional crisis occurs when those tensions cannot be resolved.

(By “crisis” I mean a serious situation the outcome of which cannot be predicted.)

So far with Brexit, there has been considerable drama (and political crises) but there has not – yet – been a constitutional crisis.

The UK constitution also provides for certain general (maybe universal) principles such as the rule of law (that each element must have a legal basis and must not breach legal rules), the separation (or balance) of powers (that each institution should not have absolute control and can be checked by other institutions), and the legislative supremacy of parliament.

Constitutional principles apply when considering how each element of the state goes about its activities and how tensions are resolved.

And taking an interests in these matters, and taking these matters seriously, is what I mean by the word “constitutional”

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So if that is how one thinks about constitutions, how does one go about commentating.

For me, useful commentary comprises three stages.

First, there is ascertaining the correct and relevant facts – and this can be harder than it seems.

Second, there is evaluating those facts – and this not only means understanding what has happened but also understanding what did not happen and could have done – the roads not taken, the decisions not made, and the words not used.

And third, there is communicating that evaluation – I choose social media, podcasts, and blogs, while others do television or academic articles.

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These are exciting times to be a constitutional commentator.

As one based in England, this must be the most exciting time to be a constitutional commentator since the 1680s.

(Scottish, Irish and Welsh commentators may – and do – have different views.)

The UK constitution is currently close to crisis over Brexit

The ultimate causes of this predicament are, in my view, constitutional and policy.

The constitutional cause is that a non-binding referendum result has been treated as a binding “will of the people” which confers absolute authority and cannot be gainsaid, and this has undermined the usual constitutionally balanced roles of parliament, the executive and the judiciary.

An active agent – some would say a poison – has been injected into the body politic, and the body politic does not know how to handle it.

The policy cause is that an immensely complex task – of UK breaking with the EU after 45 years – has been treated as if it is simple and can be done at speed.

These two causes have placed the UK into the position where the constitution has been pushed to its limits, and may well be pushed over those limits.

But one day soon, we must hope, constitutional law will cease to be exciting and become dull again.

And that no one will be interested in reading constitutional commentary, as there would be nothing constitutionally interesting for anyone to comment on.

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The UK appears boxed in on the Brexit extension

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.

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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

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.

But.

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?

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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.

But.

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.

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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.

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.

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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.

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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.

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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.

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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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A round-up of my podcast and radio stuff on the prorogation case – and some reflections on doing podcasts and radio to promote the public understanding of law

30th September 2019

Last week was a busy week for anyone with pretensions at being a commentator on constitutional law.

(Please note I am not, and do not claim to be, an expert on constitutional law – I enjoy applying what I do know about the law to emerging events and explaining complex legal things to lay people.)

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On the day the supreme court judgment was handed down I did a phone-in radio interview with James O’Brien for LBC.

I also did an “emergency” Remainiacs podcast with Schona Jolly QC and Naomi Smith.

A day or two later I did my first studio broadcasting for about seven years for a BBC Radio 4 episode of the Briefing Room, with David Aaronovitch.

And at the end of the week I did a FT politics podcast with Sebastian Payne (Whitehall correspondent), Jane Croft (courts correspondent) and Laura Hughes (political correspondent).

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The main reason I did these is that I think it important that those with an understanding of the law contribute at times of constitutional drama, else it will be left to others, including charlatans, who do not.

I also am getting more used to doing “voice work”, though I rather sound like Wednesday Addams with a Brummie accent.

I like writing, but I also like conversation – and so the format of podcasts suits me, and I am even thinking of starting my own (and perhaps doing audio versions of my longer posts here).

But I do dislike broadcasting – there is something artificial about it which triggers self-consciousness and awkwardness, and self-consciousness and awkwardness are the enemies of fluency and constructive discussion.  

(With the likes of James O’Brien and David Aaronovitch that is less of an issue, as you know they and those listening are genuinely interested in discussion – but even then it is odd to have the accompaniment of editors and producers intervening and presenters waving hands to those off-mic.  Trying to ignore the distractions make radio interviews broadcasts more performances than discussions.)

And I also dislike the gladiatorial and pseudo-“balanced” approach of many radio interviews, which may be good for those who enjoy confrontations but do little to either inform or inspire thought.

All that said, promoting the public understanding of law is a good thing and so I am glad I was able during last week’s momentous week for constitutional discussion to contribute to that understanding other than by typing, and I may do more.

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That was the constitutional week that was

29th September 2019

Soon the heady constitutional events of last week will pass into memories and the UK supreme court’s judgment on prorogation will just become another case in the textbooks.

So this post is an attempt to capture what happened that week – and if you have things to add, please add your comment below.

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This time last week there was uncertainty as to how the supreme court would approach the Cherry/Miller (No 2) case and as to what the result would be.

Some had called it for those challenging the prorogation, while others feared that the court would adopt the orthodox position that the prorogation was not justiciable. 

Some even feared that the justices would shrug and say that even if the prorogation was for political reasons, it would have been lawful all the same.

On legal Twitter the night before the judgment was like the night before Christmas, and the morning before the 10.30 hand-down of the judgment was like Christmas Day in one of those dreadful households which make you wait to open the presents.

There was genuine and deep excitement.

Constitutional law was exciting.

And this was, of course, a problem: constitutional law should not be exciting.

Constitutional law should be dull.

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Why was there excitement?

One cause was the legal uncertainty that in turn was caused by the lack of direct precedent.

Usually the lack of direct precedent means a legal claim is more likely than not to fail.

Indeed, a month or two ago I would (and did) put the chances of a legal challenge to prorogation as zero.

But: things had happened to shift the prospects of the case so that it was too close to call.

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First, the facts of the case were not, as lawyers would say, “attractive”.

A five week prorogation in the few weeks left before the UK is set to leave the EU by operation of law on 31 October 2019 (unless there is an extension or revocation) was only explicable in terms of the government seeking to close parliament so as to prevent parliamentary scrutiny.

And as prorogation meant a total shut-down, it meant current Bills would fall (including important legislation on marriage reform and domestic abuse), parliamentary questions cannot be asked, and the work of select committees was halted.

This was unlike a parliamentary recess, which would have none of these effects.

Any sensible person would think that the run-up to Brexit, either with a deal or without a deal, would be when parliament was most needed.

Prorogations are usually short boring things, bringing to the end of one session before starting another: days, not weeks.

For a prorogation to be used so as to release government from parliamentary supervision seemed like constitutional cheating.

There was something wrong, and it needed to be put right.

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Second, there seemed to be underhand conduct.

Not only was there a political motivation for the prorogation but an attempt to pretend otherwise.

This was most telling in what I described at the FT as the curious incident of the missing witness statement.

Nobody in government, either minister or official, was willing to provide a witness statement, under pain of perjury, to the courts hearing the challenges to the prorogation.

Nobody who could provide a positive account was willing to do so.

This was a conspicuous gap.

By reason of the sequence of events it seemed that, in effect, the government had deliberately misled the Queen in their “advice” that she exercise the prerogative power to prorogue.

To their credit, the government’s lawyers did a proper disclosure exercise, and documents were put before the courts which indicated that the purported reasons for the prorogation were not the true reasons.

The disclosed documents raised more questions than they answered, but the one thing they did not provide was any reasoned explanation for why there was a prorogation instead of a recess and why it was to last for five weeks rather than a few days.

The lack of any full explanation for the prorogation was as much a cause for unease as the plain political motivation.

Again, there was something wrong, and it needed to be put right.

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The third factor in making the case too close to call was the supreme court hearing itself.

The case for those challenging the prorogation had an immense legal task.

As there was no direct precedent, the challengers had to identify an applicable legal rule.

The justiciability of a legal case is not down (or should not be down) to a subjective decision of a judge as to whether something is “political” or “legal”.

Justiciability is about whether a thing is capable of being determined by a court.

Just as a puzzle can be reduced to mathematics or a program can be reduced to a coding issue, a court needs a problem before it to be reduced to a legal rule which it then can apply to the facts.

No legal rule, no justiciability.

The high court of England and Wales, who heard the Miller challenge at first instance, could not identify a legal rule.

It was not for the courts, the high court judges said, to determine whether a prorogation decisions was right or wrong, and certainly not to decide how long the prorogation should last.

These were inherently political questions, requiring political judgment.

The Scottish court of session, however, had found the prorogation decision to be justiciable, and had focused on the untoward motives and purpose of the decision rather than on the duration.

In his submissions for Gina Miller, Lord Pannick QC had to fashion a legal principle for the Supreme Court to apply.

He did this by looking at other cases of constitutional significance, some dating back to the time of Edward Coke and William Shakespeare, to show there was a general rule that the court could apply in this case: that there was a legal basis for a judge to decide whether a prorogation decision was lawful or not.

That there was a legal question to be asked and answered.

It was not obvious that Pannick succeeded.

His position was subjected to detailed questioning by the justices, every proposition of his was tested.

An exchange between Lord Reed and Aidan O’Neill, the QC leading the Scottish Cherry challenge, indicated that the judge was sceptical about going behind the disclosed documents.

And there was no clear sense from watching the hearing that the justices were convinced that this was a justiciable case and, if so, there was anything wrong with there being a political motive.

An experienced public law barrister friend of mine, who has studied the approach of the eleven supreme court justices on similar questions put the result of the eleven judge court as five:five with one justice too difficult to call.

And, of course, Lords Reed and Carnwath had been in the minority at the last Miller case, dissenting because they viewed it was open to the prime minister to make the Article 50 notification without parliamentary approval.

The conventional wisdom was that at least Lords Reed and Carnwath would be against this latest Miller challenge too.

That conventional wisdom was wrong.

But until the hand-down of the decision, few following the case felt certain as to how the court would go, and many of those who were certain turned out to be incorrect.

*

A further reason for the case being too close to call was that there was no obvious remedy, even if the judges held that the challenge was justiciable and then found against the government.

For example, if the court were to make an order, who would the order be against, and what would the order say?

And what would happen if the order was not complied with?

The question of remedy was further complicated by the complicated sequence of steps which led to the prorogation, with advice to the Queen, attendance by Privy Councillors, the making of an order in Council which was then conveyed to parliament.

What was the “target”?

And how would any of this sit with the constitutional rule excluding the courts from intervening in or questioning the proceedings of parliament?

Also any order of the court would be (seen as) political: an exertion of judicial power against the executive.

The problem of remedy was as difficult to address as other problems in the case.

What could the court actually do, even if it wanted to?

*

The judgment was handed down at 10.30 on a Tuesday morning.

Only seven of the eleven justices attended the hand-down.

This perhaps suggested that the court was not expecting to hear any further argument from the parties, such as to the terms of any order, but otherwise it did not mean either a government win or defeat.

The president of the supreme court Lady Hale began, and everyone in court and watching the live stream listened to every word to work out the result.

She said it was unanimous – but this did not necessarily one mean one result or the other.

“One off” – perhaps that meant a government defeat and the court wanted to make out it was limited to the facts?

A detailed explanation of the passing of the Benn Act on avoiding a “no deal” Brexit – perhaps the court had decided the prorogation had not caused any real inconvenience to parliament after all?

But then it became clear that this was a bad judgment for the government, and as Lady Hale went on, it got badder and badder.

The judgment was damning.

The court had identified a legal test, applied it, and found that the advice to the queen was unlawful to begin with, rendering what followed to be void.

The court was not to make any order, as merely declaring the law was sufficient in this case.

The matter was handed back to parliament to sort out – all the supreme court had decided was that, as a matter of law, the prorogation had never happened.

It was a spectacular judicial moment.

Nobody had expected such an emphatic unanimous judgment.

*

Hindsight is a bewitching thing.

There now seems to have been a certain inevitability to the Supreme Court finding what they did.

Of course, that was what the Supreme Court was going to decide.

Of course.

But robust unanimous judgments in any legal case can often mislead as to how difficult a legal case was to decide.

And a close look at the judgment shows that this had not been easy.

*

In the judgment the issue of motive is sidestepped.

The rule which the supreme court identify in paragraph 50 does not require any view to be taken as to the true motives of the government in seeking prorogation:

“a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The focus is instead on effect on parliament.

And the requirement is on the government to explain why, given those effects, the proposed prorogation is required.

The greater the impact, the more that the government will need to justify.

No sensible person should object to this.

The judgment does not remove the prorogation power from the prime minister, it instead means that if there is an adverse impact on parliament then it needs to be reasonably justified.

This focus on the effects, rather than motives, is perhaps the reason why there was unanimity: it would have allowed some of the more hesitant (or, ahem, sceptical) judges to avoid any anxious scrutiny of the evidence leading up to prorogation.

The simple lack of an explanation as to prorogation (as opposed to, say, recess) and for its duration if that impacts on the work of parliament was enough.

No reasonable and relevant explanation, no prorogation.

(The other reason for the unanimity may be that once it was plain that there would be a majority against the government then unanimity was prudent, just like when the other Doctors came to help out the War Doctor.)

*

The judgment also contained something interesting and significant about the constitutional role of the prime minister.

When exercising the royal prerogative, the court held the prime minister has “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament” (paragraph 30).

What makes this remarkable is that traditionally UK constitutional law has paid little attention to the special role of the prime minister.

The approach is usually to consider the prime minister as primus inter pares, the mere chair of the cabinet, and the person advising the monarch, who has the real power.

The supreme court has disregarded this fiction.

As the monarch only has a nominal role in the exercise of the prerogative in their name, this new description of the prime minister’s constitutional role means that the prime minister has a special responsibility above the selfish political interests of the government.

The prime minister has to have regard to the constitution as whole when exercising prerogative powers.

And this is because the monarch cannot.

*

In substance, it is a small-‘c’ conservative judgment, returning powers to parliament that had been stolen by the executive.

The judgment is not the basis of any coercive or mandatory order on a politician or other element of the state.

The judgment provides a test for prorogation that, frankly, should have been the test which a prime minister should have applied in the first place.

And the judgment sets out the wider responsibilities of the prime minister which again a prime minister should have had regard to in the first place.

All that has happened is that the supreme court has set out in law what perhaps any other prime minister other than the current one would (or should) have done anyway in exercising the prerogative.

Those who attacked the judgment as a “coup” and so on have not read the decision, or have not understood it.

Only those who want arbitrary executive power can complain of the substance of the judgment.

*

The judgment is also welcome in its form as well as in its substance.

The judgment is openly, proudly a “constitutional” judgment – setting out the constitutional positions of each element of the state and articulating the relevant constitutional principles.

This contrasts with many other leading cases in constitutional law, where you can read them without realising their constitutional import, the significance lost in technical detail.

The judgment is readable and quotable, and it will be read and quoted.

*

As nobody expected such a judgment, nobody was prepared for it.

Parliament resumed, though with a vile atmosphere caused by ministerial bad temper.

Unnamed “Number 10” sources briefed compliant media various legally illiterate ideas about what the government could do next, which were then uncritically reported.

Unnamed ministers threatened “constitutional reform” in retaliation to not getting their way.

All this noise was, in a way, the sound of a working constitution.

(This is not to be complacent: we are still only one clumsy Number Ten step away from a constitutional crisis on Brexit.)

The supreme court resolved a tension between parliament and the government on the basis of a legal principle fashioned from other constitutional cases, declared the law to be what a prime minister should have done anyway, and then handed the matter to politicians to sort out.

Future generations will find it hard to understand how there could be objections to such a reasonable and practical judgment, let alone the screaming of pundits and politicians.

But future generations will not know that, at the time, such a welcome judgment was unexpected and could have gone differently.

**

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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.

*

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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The Civil Contingencies Act 2004 is not an Enabling Act for Brexiters

26th September 2019

Every so often in the story of Brexit the suggestion is made that the government could use emergency powers under the Civil Contingencies Act 2004 to do something or other, sometimes even to “push through Brexit” or to amend or repeal unwelcome legislation.

The reality is that it would be difficult to use that Act in practice. 

This is because of three things:

  • it is not easy for a thing to qualify as an “emergency’
  • there are several legal conditions to be fulfilled and legal tests to be met before the powers under the Act can be used (all of which can be the grounds for immediate court challenges)
  • there is strict parliamentary supervision for use of the Act

For central government to successfully rely on the emergency powers under Act requires, well, an emergency that cannot be dealt with under any other legal powers and requires a legal provision to be made.

What the Act is not is an “Enabling Act” where a politician can merely assert there is an emergency so as to invoke wide legal powers to do anything they may want.

If, however, there is an emergency as defined in the Act, ministers do have wide legal powers for a short period. These powers do include being able to amend or repeal primary legislation (or do anything that can be done by primary legislation) subject to strict conditions and tests.

*

This post will now take a guided tour through the Act so as to show how hard it will be for Brexiter (or other) politicians to use the Act.

The first thing to do is to click on the Act here.

Straight away, as you scroll down, you will see the Act has two main “Parts”.

Part One is to do with obligations on local authorities. 

These are fascinating (and you can read more here and here) but this is not what excited Brexiter politicians are interested in.

They are interested instead in the powers under Part Two of the Act and so it is to that we should now go.

*

What is an “emergency”

The first step is for a thing to be in the scope of the definition of “emergency”.

If the definition is not met then the emergency powers are unavailable

“Emergency” is defined in section 19.

On the face of it, section 19(1) provides three wide definitions of “emergency”.

But the first two definitions are subject to sections 19(2) and 19(3), and you will see in both the word “only”.

And if you look carefully at all three definitions in section 19(1) you will also see a “serious damage” requirement.

If a thing does not meet the applicable “only” and “serious damage” requirements then it will not be an emergency for the purposes of the Act.

And as these are objective legal tests it will be a matter for the court, not the minister, to decide if the definition of “emergency” is met.

Not just a politician saying so.

*

The legal conditions and tests for using emergency powers

Fulfilling the section 19 definition of “emergency” is only the start.

We then come to the three conditions under section 21, all of which need also to be met (and not just one or two of them).

These include a “necessity” requirement under section 21(2) and an “urgency” requirement under section 21(3).

These are objective conditions that, again, can be for a court to determine.

Once the section 21 conditions are met, we then go to section 20, which is the operative provision for making regulations.

You will then see that section 20(5) provides for further requirements on emergency regulations, including relevancy, proportionality and compliance with human rights law.

The requirements of relevance and proportionality are important and would mean that emergency regulations had to have a direct connection with the emergency and go no further than needed in dealing with the emergency.

And, again, these are objective legal tests which can be tested in court.

We then move to section 22, which sets out the scope of the regulations.  

This section provides for what the regulations can do, including anything which can be done by Act of Parliament.  

You will also notice, however, that there is a requirement that the minister be “satisfied” that the regulations are appropriate – an additional legal hurdle.

You will see also at section 22(5) an express obligation on the minister to have regard to the roles of parliament and the courts in supervising the regulations.

And then, after all these hurdles, we get to section 23, which is headed “limitations of emergency regulations” – that is, limitations in addition to all the conditions and tests before we even get to this stage.

Section 23(1) in particular provides for a general condition governing use of the regulations:

“(1) Emergency regulations may make provision only if and in so far as the person making the regulations is satisfied—

(a) that the provision is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made, and

(b) that the effect of the provision is in due proportion to that aspect or effect of the emergency.”

Note the use of  “only if and in so far” which is as strict an obligation as the law allows.

This section 23(1) obligation, of course, covers many of the tests and conditions elsewhere in the Act, but (as lawyers say) it places the legal position beyond all doubt.

If there is any attempt by a minister to use the emergency regulations other than in direct proportion to an emergency as defined, the regulation can be easily quashed by a court.

*

The supervision of emergency powers

But say all the requirements are met, and the emergency regulation has been made and is being used appropriately so as to deal with an emergency – there is then “back end” supervision, as well as “front end” requirements.

Under section 26 emergency regulations lapse after a maximum of thirty days.

Section 27 provides that there the regulations be brought parliament as “as soon as is reasonably practicable” within those thirty days, and then will lapse within seven days unless approved by both houses of parliament.

There is even provision under section 28 for what happens if (ahem) parliament is prorogued (if so, Parliament has to be summoned).

Making regulations under the Act in an emergency without Parliament is therefore possible in exceptional circumstances, but Parliament is still quickly engaged to ensure that there is no misuse.

*

The Contingency Powers Act and Brexit

If there is a “No Deal” Brexit then it is possible, indeed likely, that there are emergencies such as to fulfil the section 19 definition.

But any emergency regulations, if they are required at all, would have to be subject-specific, and would need to deal directly with that emergency and nothing else. 

Attempting to use the regulations to, say, amend legislation which had nothing to do with mitigating the emergency would not be legally possible.

Any such attempt to repeal or amend legislation for a wrongful purpose would be ultra vires the Act and have no legal effect.

There are several ways any such misuse can be challenged in the courts.

The Contingency Powers Act has an important purpose, but Parliament was careful to build in a number of safeguards against it being abused.

The Act is not an Enabling Act for Brexiters wanting to impose arbitrary government.

**

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They are locking the doors of Westminster Palace

10th September 2019

So the prime minister has done it.

Boris Johnson has now locked the doors of parliament for five weeks in the short lead up to the UK’s set departure from the EU.

Actually closed down parliament, so as to prevent his government being scrutinised by the people’s representatives.

Not much one can add to that, but it is so dark and sad a fact that it warranted a post just for itself.

 

What if the Prime Minister deliberately broke the law over extending Article 50?

7th September 2019

There is, it seems, a serious suggestion that the Prime Minister would break the law rather than request or accept any extension to the Article 50 period.

By way of background the United Kingdom is, of course, set to leave the European Union by automatic operation of law on 31 October 2019.

There is, however, legislation about to be enacted that would oblige the Prime Minister to seek or agree to any extension to the Article 50 period.

The current Prime Minister Boris Johnson is quoted as saying:

“They just passed a law that would force me to beg Brussels for an extension to the Brexit deadline. This is something I will never do.”

And asked if this meant he would disobey the law, he is reported as saying:

“I will not. I don’t want a delay.”

*

Well.

Some news reports state that a senior politician states the legal consequence of such a breach would be little more than “contempt of parliament” and that he would be a “martyr”.

Another news source has suggested he is merely “goading” parliament for a possible “impeachment”.

In fact and at law, it would be far more serious than that.

*

A prime minister holds public office.

As such a prime minister comes within the scope of the criminal offence of misconduct in public office (read all you need to know here).

For any public servant to deliberately seek to breach the law (as opposed to say, creatively comply with it or find a loophole to avoid it) would be (on the face of it) misconduct under this offence.

If all the elements are made out of the offence then there would be a criminal conviction and a sentence, which can be up to life imprisonment.

Also caught would be any person, even if not a public official, who conspired, assisted or encouraged the offence (this can be shown by the Operation Elveden prosecutions).  

This could thereby catch any aides or advisors who had sought to facilitate the principal offence.

And that would not be the end of the legal peril.

*

There is also the tort of misfeasance in public office where, if Johnson or any other public servant was held to be a tortfeasor (a lovely legal word, which Johnson would otherwise no doubt enjoy) then there would be liability in damages for losses that were caused by the unlawful action.

In respect of the losses which would be caused to companies and individuals by a No Deal Brexit forced by the wrong such damages would be likely to be colossal.

This would be in addition to, or separate from, any criminal liability – an offence does not have to have been prosecuted for the tort to be made out.

The criminal offences and the tortious liability would be in the personal capacity of those found liable.

*

This would be in addition to any legal sanction (such as imprisonment for contempt of court) for breach of an injunction and/or mandatory order obliging Johnson and others to comply with the law.  

*

All the above is not because the Prime Minister has any special status: it is just the law treating him as any other public servant.

The Prime Minister is not above the law.

No doubt the talk so far is not to be taken seriously, and that there is no real possibility that the Prime Minister and others will conspire to break the criminal law, break any court orders, and commit a tort which will cause devastating losses to millions of people and thousands of companies.

It is surely just bravado, to impress reporters and political supporters.

But if it not bombast and bluster then all those involved had better get some jolly good criminal and civil defence lawyers.

Because, unlike – say – breaches of referendum spending and campaigning laws, breaking these laws will have serious consequences.

**

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I expect to be blogging here more often, instead of spending time on Twitter.

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