It is not often that I borrow a post wholesale from somebody else, and I cannot recall the last time I did so without asking, but I think Jolyon Maugham (who I know) will forgive me in this case as the issue is too important for me not to want to share this, posted on his blog:
The updated written pleadings in the case brought by over seventy Parliamentarians to prevent Boris Johnson treating Parliament as an inconvenience he can suspend can be read here.
One of our lines of argument is that ‘No Deal' is unlawful as a matter of domestic law and, in extremis, a court would order Boris Johnson to revoke Article 50.
That is a rather striking contention and so I thought it might be helpful to set out, in somewhat greater detail, how the argument runs.
1. As a matter of UK constitutional law, Miller in the UKSC (correctly) determined that
(i) EU law could be regarded as a direct source of individuals' rights
(ii) the Crown has no inherent power to diminish or attentuate or remove the substantive rights of individuals
(iii) if individuals' EU law derived rights are to be removed or altered or diminished by Crown action (or omission) this can only lawfully and constitutionally be done if the Crown was expressly authorised/empowered by Parliament by enacting a statute to this effect.
2. The majority in Miller proceeded on the assumption (that being the joint position of the parties) that as a matter of EU law the act of notification by a Member State under Article 50(2) TEU of its intention to withdraw was an irrevocable act andtherefore could be treated for the purposes of UK law as the commencement of a process which would inevitably lead to the loss of individuals' EU law rights. It was on that basis that the majority concluded that a statute was necessary as a matter of UK law to authorise notification as a matter of EU law. As it turns our, they were wrong. Lord Carnwath in the UKSC had the better analysis on this point, namely, that there was nothing inevitable about the diminution of rights following from notification since there would be up to 2 years of negotiations before one actually knew what the specific consequences of withdrawal would be for individuals' EU law rights.
3. Wightman in the CJEU confirmed Lord Carnwath's analysis in Miller to be the more soundly based in its holding that there was nothing irrevocable or inevitable in the effect on individuals' rights about the Article 50 notification, which could be unilaterally withdrawn at any time while the UK remained a member State.
4. Applying the CJEU Wightman analysis to the proper interpretation of the EU (Notification of Withdrawal) Act 2017 that Act can now be seen as doing nothing more than authorising the Crown to open negotiations for withdrawal. What it did not authorise was the Crown to diminish or take away individuals EU law rights. No blank cheque — indeed no cheque of any sort — was given by Parliament to the Government.
5. The Miller majority analysis remains good however in confirming that as a matter of UK constitutional law the Crown has no power — whether by its action or inaction — to deprive individuals of their EU law derived rights, other than with express statutory authorisation to do so.
6. If the UK were to leave the EU without any withdrawal agreement having been concluded this would involve a massive alteration in the EU law derived rights of individuals. What this means is that as a matter of UK constitutional law the Government cannot allow for a no deal Brexit without explicit statutory authorisation to this express effect. As matters stand no such statutory authorisation exists.
7. What this means is that if Government policy is indeed one which encompasses a No Deal Brexit, it cannot use the power of suspension of Parliament to further that policy. It would in fact defeat it as if Parliament is prorogued the relevant and necessary No Deal authorisation legislation will not be able to be passed in time for Exit Day.
8. In those circumstances — were the power of suspension to be used — the only relevant active constitutional actor would be the courts which, in order to preserve individuals' EU law derived rights from the inevitable substantial diminution and/removal which would necessarily result from the Crown's action or inaction in failing or refusing to conclude a withdrawal agreement with the EU would have to pronounce a mandatory order ordaining the Government to exercise the UK's power to revoke Article 50.
9. In a representative constitutional democracy however it is far better — far more constitutionally appropriate, for the legislature rather than the courts to make any such decision to keep the Government within lawful and constitutional bounds.
10. Standing back, not only is it clearly the intention of Parliament that it be sitting to determine what options it will authorise the Government to pursue in the run up to Exit Day, but the whole dynamics of the constitution require that the suspension power not be used before there has been clear statutory authority given by Parliament to Government about how to proceed in the face of Exit day — whether that be to seek a further extension of Exit Day, revoke Article 50 altogether or expressly allow for a No Deal exit.
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The use of the courts to revoke A50 would be the most monumentally stupid idea in this monumentally stupid process. All that is required is to prevent No Deal and nothing else, that way you keep the support of moderate Brexiteers. Both the No Dealers and Remainers need to accept they can’t have what they want because neither side has the numbers. EFTA/EEA is the obvious compromise and as far as we should move for now.
The Courts would have to act if legally required to do so
The monumentally stupid thing would be not asking parliament
Sir, the correct question to ask is “Is the UK a proper functioning democracy?” Then all of this will be much clearer. As you aware, in UK, the Parliament is supreme. Every other body/institute reacts to it. As it stands now, UK will leave EU at the end of October. Unless and until the Parliament revokes Art 50, it is the default position. Everything else in inconsequential. Even if Jolyon Maugham is right, can it cross the court in time? All Johnson needs to do is to wait it out till October ends. And I think I can safely say you and I and most readers here know that is exactly what he wants anyway.
The whole point is your argument is that your claim is not right
The argument is that your assumption is illegal
Is it your desire that we are governed illegally?
Sir, the referendum was mired with illegality since its inception. Yet the result was accepted as if cast in stone. If it were up to me I would have liked it to be declared null and void; and at the very least a rerun of it. Yet we are here regardless. The government is hellbent on getting out of EU no matter what. Proroguing the Parliament is an extreme measure, usually due to national security issue. The fact that the government is seriously considering this means they are planning to roughshod a few rights that cannot be done in normal times. Hence my point and the answers to your questions. It is not that I want to be governed illegally; it is how far this government is willing to stretch the definition of legality. By the looks of it, very, very thin.
Caveat: I have no interest in this. As far as I am concerned, England can do whatever it likes. My interest is Scotland.
So Scotland, what now?
From the very beginning I have been profoundly uneasy with the proposition that 17.4m British people, in a very narrow referendum vote on an international treaty, can not only choose that the British State leaves the EU; but somehow also with this vote, have automatically acquired the aribtrary power simply to remove my longstanding personal rights as a EU citizen, as a natural by-product of the vote.
This is simply not acceptable to me. My rights are not to be disposed of quite so easily; and therefore I certainly do not wish to live in a country that believes it is entitled to treat the personal rights of its citizens as a matter of casual State self-indulgence, with the ideological purpose of establishing an elective dictatorship. Fortunately, as a Scot, I have a political option.
Allow me to add: I think I would draw the conclusion from Jolyon Maugham’s trenchant critique that in constitutional matters in Britain it is best to look for the remedy and not focus exclusively on the ‘principle’. The remedy often requires an unusual, surprising, arcane or indirect route to achieve success.
Johnson is a bluffer and a liar. The current move is done to convince the EU/EC to give a “better” deal – whatever that means. However, in common with the more rabid sections of the tory party/gov he & his acolytes assume that “people in Brussels” can’t read English & are not familiar with Uk political developments – this has been a feature of tory assumptions since the Cam-moron days – they don’t know what’s happening across the Dover Straits, ergo the reverse must be true. I can see that the Uk’s supreme court is going to be busy. Might be worth a two pronged approach (HoC & courts).
One thing missing from this saga – is the video showing Johnson campaigning for Brexit and categorically stating that the Uk would stay in the single market & the customs union (speech made to UK companies – could have been CBI). Ditto the one of Fart-rage stating that he would be happy with Norway+.
I gather that, as it stands, we won’t be leaving as A50 is conditional and those conditions haven’t been fulfilled. Sooooo… cometh the day and the hour, without an act of parliament there won’t be any Brexit at all. That includes crashing out because A50, being conditional, will simply expire. More here https://www.foundrychambers.com/on-sunday-11-august-2019-rose-slowe-was-interviewed-by-richard-foster-on-bbc-radio-5-about-article-50-and-the-legality-of-a-no-deal-brexit/
Odd how our politicians and the EU’s too seem to have overlooked this en masse. Our media too. Perhaps it’s because they have agendas and ignoring it while they can serves those agendas better. People with an interest and some knowledge of the relevant law, however, are slowly starting to make their voices heard. I imagine it’s them who’ll be having the last word on the matter.
Obviously he is an apparent expert, but I’m not so sure I would be blindly rushing to accept My Maugham’s interpretation of the constitutional position . His attempted interventions in the BREXIT process thus far seem to have achieved little other than burning through many people’s crowd-funded cash.
You should be paying attention then
“Mr Maugham’s interpretation of the constitutional position ”
The key part was points (i) (ii) and (iii). These did not strik me as an “interpretations” – rather “determinations” by the SC in the Miller case. This puts Johnson et al in a very difficult position & given case law (i.e. this case) they seem to be winging it. Doubtless they may (they think?) have something in their back-pocket. Time and the courts/HoC will tell. In fairness Johnson has some bright people on his side – they should not be underestimated.
You are right
God Bless Jolyon Maugham and all who sail with him.
And I’m afraid its crunch time for the Remain MPs – they really will have to put aside their differences as Johnson has upped the ante.
I have thought, for a long time, that it is a pity that Gina Miller took her case when she did, although I applauded it at the time. If she had not done so, but had launched the same case 3 months ago, Brexit would be dead!