Monday, 1 April 2019

BREXIT – the Final Act (Scene Two)

[I had intended that my next blog post would be on a planning law topic, as there has been another Court of Appeal decision on confiscation orders under POCA, which seems on the face of it to cut down the potential size of such orders. However, I have not yet had time to get my head around this judgment, and so it will have to wait a few days. So I’m afraid that, today at least, it’s Brexit yet again.]

It seems the Brexiteers are getting desperate, and are casting about for various legal devices by which they could ensure that, despite current parliamentary obstacles being put in its way, Brexit will actually occur, either on 12 April or (at the latest) on 22 May. However, the ideas they have been coming up with are both legally and constitutionally dubious, notwithstanding the apparent support expressed for such devices by certain right-wing academics. It is much the same right-wingers who have been muttering about the constitutional propriety of the current efforts to find some acceptable compromise that might gain majority support in the House of Commons.

Among the suggestions that the Brexiteers have made is that the Queen could or should withhold Royal Assent to any legislation passed against the wishes of the government (!), for example if it were to require a confirmatory referendum before Brexit could become effective. Another possible ruse is that parliament might be prorogued as a device to ensure that a ‘no deal’ Brexit occurs by default on 12 April.

One only has to state these possibilities to appreciate the enormity of such proposals. Both ideas involve the use of the Royal Prerogative, but it is a fundamnetal principle of the constitution that the Royal Prerogative can be exercised only in a constitutional manner, and not arbitrarily. Since 1688, our monarchy has been a ‘constitutional monarchy’, in the sense that the monarch can rule only with the consent of parliament, and the scope for the exercise of the monarch’s own political will has, by convention, become ever more constrained, so that it is now firmly established that the monarch must not descend into the political arena, either in terms of expressed opinions or in the exercise of the Royal Prerogative. There are, of course, instances in which the government (the Executive, to use the language of constitutional law) exercises the prerogative on behalf of the Crown, but even this has been increasingly constrained by convention, and even by law, as we saw in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

Let us look first at Royal Assent to parliamentary Bills. This is the last step in passing a Bill, which then becomes an Act of Parliament. There are two points that should be made. First, it is “the Queen in Parliament” in her capacity as a component part of the Legislature, who gives the Royal Assent, and by convention this is never withheld. The second point is that a Bill presented for Royal Assent is parliament’s Bill. It may (or may not) have been proposed by the government, but it is Parliament, and Parliament alone, who owns the Bill. It is nonsense, therefore, to suggest (as some legal and political commentators who should have known better have done recently) that Royal Assent might be withheld in respect of a Bill that has been passed by the Lords and Commons against the wishes of the government. The Executive has no power, and no right, to demand that the monarch should withhold her Royal Assent to a Bill that has been duly passed by both Houses of parliament. Subject to today’s Business Motion, it is possible that a Bill may be introduced by back-benchers on Wednesday of this week which would have the effect of changing the basis on which Brexit is concluded and implemented. If such a Bill were to be passed (and I make absolutely no predictions on that score) then, irrespective of the views of the government, there is absolutely no legal or constitutional basis on which Royal Assent to this Bill could be withheld.

It is possibly because they are well aware of this that certain Brextremists are proposing, as an alternative, that parliament should be prorogued long enough for a ‘no-deal’ Brexit to occur by default on 12 April, without parliament having any opportunity to prevent it. In this case, it is the government that proposes the prorogation of parliament but, here again, the power of prorogation must be exercised constitutionally. It would be grossly improper for the government (any government) to ask the monarch to prorogue parliament with the express intention of frustrating the apparent will of parliament, and in particular of the House of Commons. My impression is that this kite is not being flown by No.10 or by the Cabinet Office, but comes solely from the ‘Brextremists’ (which may or may not include a handful of cabinet ministers). In practice, I would hope that the Cabinet Secretary would make it abundantly clear to the PM and her advisers that prorogation for this purpose would be a wholly unacceptable exercise of the Royal Prerogative, and would drag the Queen into the political arena in a completely unconstitutional way. The Palace would no doubt make it clear to the Cabinet Secretary in any event that the Queen would strongly deprecate being involved in political controversy, and that the suggested prorogation of parliament for such an improper purpose would be constitutionally unacceptable.

Turning to today’s proceedings in the Commons, it is entirely proper for the House to take control of its own agenda, even to the extent of proposing and passing legislation. Suggestions to the contrary are based on a wholly exaggerated, and incorrect, view of the role of the Executive in relation to the legislative process. As I explained last week, the practices that have usually obtained by reason of most governments having a working majority in the Commons cannot thereby be elevated to the status of a constitutional convention. The present government does not have a working majority, and has hitherto been forced to rely on a ‘Confidence and Supply’ arrangement with the DUP. This, however, does not guarantee that the government will always get its way in parliament, and it certainly does not entitle the government to expect that it will. One of the problems that the May government seems to have had since June 2017 is that it has attempted to proceed as if it had won an overall majority in the last General Election. But the limits to its power are now being demonstrated on a weekly, almost daily, basis.

I don’t propose to discuss what may emerge from today’s Commons sitting. I discussed it generally in my last blog post, and it is still not clear how the government might proceed in the light of any motion or motions that might be passed today. Once again, as so often in recent months, we shall just have to wait and see. But that wait may not be long; the government may make its intentions known at the end of today's debate, or tomorrow, and there are quite likely to be further developments this week.

UPDATE 2 April: The headlines are screaming this morning that the Commons again failed to support any of the options placed before them yesterday, but what all the commentaries seem to miss is that in three of the votes up to 100 Members of Parliament failed to vote at all, and on the most sensible proposal of all, a fall-back position providing for the revocation of Article 50, but only if at the last minute this is the only way of preventing a disastrous No-deal Brexit, more than 150 members abstained.

With the exception of this last vote, the abstainers overwhelmingly comprised members of the Cabinet, other ministers and ministerial aides (PPSs). It is therefore the Government which is responsible for the current impasse. On such an important issue as Brexit, on which even the government is divided, ministers should have had a free vote, as they should in any further votes on Wednesday. It is quite clear that they were instructed to abstain yesterday, and this instruction should now be rescinded. Otherwise, the blame for any continuing impasse will lie solely at the door of Theresa May. (Perhaps we should start calling her Pontius Pilate, or perhaps the Emperor Nero.)

As for the final vote, on Article 50, which is an essential insurance policy to prevent the UK crashing out of the EU on 12 April ‘by mistake’ (or by default), the Labour front bench also failed to support this motion, so that the total number of votes cast on both sides in that division fell to only 483. So the Labour leadership must bear part of the blame for the failure of this final motion.

If a No-Deal car-crash Brexit is to be avoided and if, as seems likely, there is no realistic prospect of May’s draft Withdrawal Agreement being approved by the Commons, then a lengthy extension of Article 50 (which must be for a specific purpose – either a General Election or a Confirmatory Referendum) or the revocation of Article 50 altogether are the only other possibilities, and in the end one of these two alternatives will have to be the course that the UK follows.

UPDATE 8 April: It just gets worse and worse. Trixie May has less than 48 hours now to pull Brexit out of the fire. She ain't gonna do it. If she gets no joy from the EU at Wednesday's summit (and this is looking increasingly likely), the only option that will then be left, in order to avoid a car crash No-deal Brexit on Friday night, will be to revoke the UK's Article 50 notice. This needs to be put to parliament on Thursday, and communicated to the EU during Friday at the very latest. I don't pretend that this will put a final end to Brexit; but it will stop the clock, and give us breathing space (without the pressure of any deadline) to have a thorough rethink of the whole Brexit issue. And in the meantime I shall look forward to voting in the elections for the European Parliament in May, to ensure proper representation of the UK in Europe for as long as our membership of the EU continues.

UPDATE 12 April: Well, I suppose we can allow ourselves a modest sigh of relief. We will not be crashing out of the EU tonight. The government will continue to negotiate with the Labour front bench, although the prospects of reaching an agreement that would enable May's deal finally to be passed by the Commons still don't look good. When the Commons gets back after its Easter hols, there will be barely 4 weeks left before 22 May within which to push May's draft withdrawal agreement over the line (with or without Labour support), failing which the European parliamentary elections will have to held on 23 May. Personally, I am looking forward to voting in that election and securing proper representation for the UK in Europe for the foreseeable future.

As to the period between 23 May and 31 October, it is impossible to make any predictions, but don't be surprised if the deadlock continues. My guess is that Theresa May stands a better than 50:50 chance of remaining PM for several more months, whether the head-bangers on the right wing of her party like it or not.



  1. So Martin, here's something that's been forwarded to me - I thought it might be interesting to pass it over to you for comment - if true I think this is very worrying - isn't it?


    1: The UK along with all existing members of the EU lose their abstention veto in 2020 as laid down in the Lisbon Treaty when the system changes to that of majority acceptance with no abstentions or veto’s being allowed.
    2: All member nations will become states of the new federal nation of the EU by 2022 as clearly laid out in the Lisbon treaty with no exceptions or veto’s.
    3: All member states must adopt the Euro by 2022 and any new member state must do so within 2 years of joining the EU as laid down in the Lisbon treaty.
    4: The London stock exchange will move to Frankfurt in 2020 and be integrated into the EU stock exchange resulting in a loss of 200,000 plus jobs in the UK because of the relocation. (This has already been pre-agreed and is only on a holding pattern due to the Brexit negotiations, which if Brexit does happen, the move is fully cancelled - but if not and the UK remains a member it’s full steam ahead for the move.)
    5: The EU Parliament and ECJ become supreme over all legislative bodies of the UK.
    6: The UK will adopt 100% of whatever the EU Parliament and ECJ lays down without any means of abstention or veto, negating the need for the UK to have the Lords or even the Commons as we know it today.
    7: The UK will NOT be able to make its own trade deals.
    8: The UK will NOT be able to set its own trade tariffs.
    9 The UK will NOT be able to set its own trade quotas.
    10: The UK loses control of its fishing rights
    11: The UK loses control of its oil and gas rights
    12: The UK loses control of its borders and enters the Schengen region by 2022 - as clearly laid down in the Lisbon treaty
    13: The UK loses control of its planning legislation
    14: The UK loses control of its armed forces including its nuclear deterrent
    15: The UK loses full control of its taxation policy
    16: The UK loses the ability to create its own laws and to implement them
    17: The UK loses its standing in the Commonwealths
    18: The UK loses control of any provinces or affiliated nations e.g.: Falklands, Cayman Islands, Gibraltar etc
    19: The UK loses control of its judicial system
    20: The UK loses control of its international policy
    21: The UK loses full control of its national policy
    22: The UK loses its right to call itself a nation in its own right.
    23: The UK loses control of its space exploration program
    24: The UK loses control of its Aviation and Sea lane jurisdiction
    25: The UK loses its rebate in 2020 as laid down in the Lisbon treaty
    26: The UK’s contribution to the EU is set to increase by an average of 1.2bn pa and by 2.3bn pa by 2020
    This is the future that the youths of today think we stole from them?
    They should be on their knees thanking us for saving them from being turned into Orwellian automatons!
    Forget Deals no deals its time for remainers and brexiteers to unite and see whats coming before its to late. This is the whole reason they are dragging brexit out. So we can get to 2020 then we have no choices anynore.

    1. I have only published this comment in order to point out that it is ABSOLUTE AND UTTER B*****CKS !!!!!!!

      The Lisbon Treaty (which was has already been in force for many years) contains none of the nonsense that this comment suggests. To call it ‘fake news’ is hardly adequate to describe it. There’s not a word of truth in any of it.

      You might think that I should not allow this sort of nonsense to be published as a comment in this blog, but it is worth drawing it to readers’ attention as an example of the sort of falsehoods that are being peddled in a desperate effort to bolster the faltering and failing case for Brexit.