A brief digression from Planning Law

Planning law is simply one branch of Constitutional and Administrative Law (Public Law) and so, after posting several recent items purely on planning law, I feel justified in widening the scope of this post to cover an interesting aspect of constitutional law and practice which is both very topical and important. This relates to the current political and parliamentary position with regard to Brexit.

What has prompted this piece is that, having done a bit of research, I fear that No.10’s Dominic Cunning-Plans (Mephistopheles to Johnson’s Faust) and Geoffrey Boombox (Attorney-General) may well be right in saying that it is now too late for parliament to prevent the UK leaving the EU on 31 October, with or without any form of withdrawal agreement. Up to now I, and quite a few other people, have been working on the basis that if relevant time limits can be adhered to, it would be possible for a No Confidence motion to be passed by the Commons in the first week of September, and for a General Election then to be held before 31 October. However, this overlooks section 2(7) of the Fixed Term Parliaments Act 2011, as I shall explain below. Even if a No Confidence motion had been passed on the day before parliament rose for the summer recess this would not absolutely have guaranteed that an election would have had to be held before 31 October.

Before we look at the 2011 Act, let me just recap on the constitutional position where a government is defeated on a No Confidence motion in the Commons. The convention is that when a vote of no confidence is passed, the government must either resign or ask the Queen to dissolve parliament. The latter is now governed by the provisions of the 2011 Act. It is clear, however, that the government need not resign immediately, but can await the outcome of the General Election. The last time a government suffered defeat on a motion of no confidence was on 28 March 1979, when Jim Callaghan’s minority government was defeated by one vote. In accordance with well-established practice, the government did not resign, but after a brief ‘wash-up’ period to dispose of the final stages of uncontroversial legislation, parliament was dissolved and a General Election was then held, which the Callaghan government lost, and they therefore resigned immediately after that election, in accordance with well-established constitutional convention.

The 2011 Act has modified the procedure in connection with a no confidence motion and what follows, but it has not fundamentally changed the basic principles. The only provision in the 2011 Act that has so far been used is that contained in Section 2(1) and (2), whereby the House of Commons voted in 2017 (by a two-thirds majority, as required) to hold an early General Election. Sub-sections (3) to (5) of section 2 go on to provide an alternative mechanism for holding an early General Election. Under sub-section (3), an early parliamentary general election is also to take place if the House of Commons passes a motion of no confidence in the government, and the period of 14 days after the day on which that no confidence motion is passed ends without the House then passing a motion of confidence in the government [i.e. in the government, whatever its composition, that is in office at the time of that second motion - a point to which I shall return below].

Sub-section (4) prescribes the exact form of words in which a no confidence motion must be expressed. The wording must simply be “That this House has no confidence in Her Majesty’s Government.” Similarly, sub-section (5) prescribes the exact form of words in which the subsequent motion of confidence must be expressed. The form of motion for that purpose must be simply “That this House has confidence in Her Majesty’s Government.” Sub-section (7) makes it clear that under any of the provisions of section 2, the polling day for the election is to be the day appointed by the Queen on the recommendation of the Prime Minister. This gives the PM complete control over the timing of such a General Election, which could (in theory) be set for a date that might be some two or perhaps even three months later [but see now the view of Charles Banner QC, referred to in the comments below]. Parliament would be dissolved on the 17th day before polling day, but cannot otherwise be dissolved - see section 3(1) and 3(2). This does not, of course, prevent the prorogation of parliament in the meantime – see section 6(1).

The 2011 Act makes no provision as to the immediate consequences for the government that exists on the date that a no confidence motion is passed under section 2(3). This is entirely dependent on constitutional convention and precedent, as I have explained above. It is clear that the government need not resign immediately, but can await the outcome of the General Election, and this has been the usual practice in the past.

There seems to have been a recent assumption that, upon being defeated on a motion of No Confidence in accordance with the 2011 Act, the government must thereupon resign, but this is not the case. If previous practice were to be followed, the PM might be expected to decide within a day or two at most whether to resign or to call an election. However, section 2(5) of the 2011 Act now gives the government up to 14 days to attempt to rally support in the Commons and to seek to gain a vote of confidence. If it loses that vote, or if it simply omits to propose such a confidence motion under section 2(5) within the 14-day period, then a General Election must follow. However, as I have explained, the government is not obliged to resign until or unless it is defeated in that General Election.

There may possibly have been an assumption that if a No Confidence motion were to be passed under section 2(3), the existing government would resign, and the opposition would then be given the opportunity to form a new government; so that it would be that new government which would have to put a confidence motion to the House of Commons within the 14-day period under section 2(5), and if the new government were to win that confidence vote, they could simply carry on while they continued to enjoy the confidence of the Commons. If the new government were to lose the motion of confidence, then a General Election would be triggered under section 2(7), at a date of the new PM’s choosing (but the new government can remain in office pending the outcome of that election). If such an assumption has been in the minds of parliamentarians, it is certainly not enshrined in the legislation, and there appears to be no legal or constitutional basis for such an assumption being made.

When a General Election is called, it is a constitutional convention that the incumbent government should during the election period act purely as a caretaker, and should take no policy decisions or initiatives that would be politically controversial. In other words, once an election has been called (even before the formal electoral process actually gets under way) the status quo ante should be preserved. It has been suggested in relation to Brexit that, in compliance with that convention, the UK should remain a member of the EU until after the outcome of the election is known, and that an extension of Article 50 should therefore be sought for that purpose. As a general proposition, that would seem to be entirely reasonable; however, one has to take account of section 20 of the European Union (Withdrawal) Act 2018 which states bluntly that “Exit Day” (as amended by European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019) is 31 October 2019. The provisions of Article 50 of the Lisbon Treaty (as also extended by agreement) currently take effect on the same date. Arguably, therefore, the status quo ante is that the UK is leaving the EU on 31 October, and so (it may be claimed) the government is under no obligation either before or after an election is called, to seek to alter the legal position in this regard.

The conclusion to be drawn from this is that proceeding by way of a No Confidence motion on or after 3 September may not in practice prevent our leaving the EU on 31 October. Other avenues will therefore need to be explored. One idea that is currently being considered is the introduction by a cross-party alliance of MPs of amending legislation to oblige the government to seek the extension of Article 50 (coupled with a further amendment to section 20 of the 2018 Act). This may be the only practical way forward at a political level, although previous experience of similar parliamentary tactics is not encouraging and has not so far proved to be very effective. A robustly worded Bill would need to be brought forward and passed through all its stages as soon as possible after parliament gets back from its summer recess.

Another possible way forward is by the legal route. This would be specifically directed at the threat of a ‘No Deal’ Brexit and its immediate practical consequences. It would take the form of an application to the High Court for judicial review under CPR Part 54. Such litigation would seek an appropriate judicial remedy (either a mandatory or prohibiting order and perhaps also a declaration). The grounds for such an application would be based on the classic Wednesbury principles, namely that in deciding to proceed with a ‘No Deal’ Brexit the government has failed to take into account a material consideration or considerations, and specifically the dire consequences for various businesses, and the disruption that is likely to be caused in a number of potentially damaging and even life-threatening ways to a significant proportion of the public. Further or alternatively, it might be argued that this is a decision that no decision-maker properly apprised of the facts could reasonably make. (In other words, such a decision would be perverse.) Various businesses, representative groups and even individuals would undoubtedly have sufficient locus standi to bring such an action or actions.

Like the Miller case, a consolidated action would no doubt be heard by a strongly constituted Divisional Court of the QBD, and the losing party (especially if it was the government) would no doubt avail themselves of the ‘leapfrog’ provision to appeal directly to the Supreme Court, where the appeal is likely to be heard by the full court. The outcome of such litigation cannot be predicted, and would no doubt depend on a strong case being persuasively presented to the court. The object would be to compel the government to secure the extension of the UK’s exit date from the EU in order to prevent the substantial harm that a ‘car crash’ No Deal Brexit on 31 October would cause.

In the meantime, the rest of us have no choice but to watch from the sidelines, with our fingers tightly crossed.

ADDENDUM (12.8.19): It is now suggested that, especially if the government faces the possibility of legislation being passed by parliament to force them to apply to the EU for a further extension to Article 50, Johnson may call an early election in any event.

This, however, would be governed by section 2(1) and 2(2) of the Fixed Term Parliaments Act 2011. Johnson would need a two-thirds majority in the House of Commons for a motion to hold an election. Under the Act, this must be two-thirds of the entire membership of the House (not just two-thirds of those voting on the motion).

MPs (and Labour in particular), even if they ardently want a General Election, should not vote in favour of a motion under section 2(2), until or unless legislation has first been passed and acted upon by the government to postpone Brexit to a date that will fall after any such election is held. A motion under section 2(2) cannot be amended; so if Johnson seeks an early election, MPs should force him to wait until postponement of Article 50 has first been secured, which would necessitate voting down a government motion for an election, if it is proposed before Article 50 has been duly postponed. After that, Johnson can put the motion forward again and, if it is then passed by the requisite two-thirds majority, he can have his election whenever he wants it (in accordance with section 2(7) as explained earlier).

I just hope that Labour does not fall into the trap of voting for a General Election on a government motion under section 2(2) without first securing the postponement of Brexit until after that election.

In the meantime, an action has been started in the Scottish courts which seeks to prevent the arbitrary prorogation of parliament. Permission to proceed has been granted by the court, and a timetable for the hearing (which is expected to be expedited) is due tomorrow. Those bringing the action include the leader of the Liberal Democrats and the Commons leader of the SNP, as well as some 70 other MPs and members of the House of Lords. This one will be well worth watching.

UPDATE (19.8.19) : Further developments since the end of last week serve only to confirm what I wrote above. The publication in the Sunday Times yesterday of a recent briefing paper from the Cabinet Office summarising not a ‘worst case scenario’ in the event of a No Deal Brexit but the most realistic assessment of what is actually likely to happen has provided more than enough evidence to support an application to the High Court (or to the Court of Session) for judicial review of the government’s stated intention to pursue a No Deal Brexit.

Meanwhile, Gina Miller (writing in the Observer) has expressed the fear that Johnson, rather than attempting to prorogue parliament, may be planning to call an early General Election, so as to ensure that the dissolution of parliament is timed to frustrate any attempt by MPs to prevent a No Deal Brexit by means of legislation ordering the government to seek the postponement of Article 50, and also very conveniently ensuring that polling day falls on or after Thursday 31 October, perhaps even on Brexit Day itself, so that none of the very serious consequences of a No Deal Brexit will have been felt by the public by Polling Day.

As I have explained above, there is one little snag to this cunning plan. Section 2(1)(b) of the Fixed Term Parliaments Act 2011 requires that the number of members who vote in favour of a government motion to call an early General Election must be a number equal to or greater than two thirds of the number of seats in the House (including vacant seats), i.e. 434. The government may be working on the assumption that the Opposition would not dare to vote against an election, but if Brexit has not been postponed by the time that a government motion for a General Election is proposed, then the opposition parties must all vote against it. It will require only 217 votes to defeat such a motion, which should be easily achievable, even if most Tories and even a handful of Labour MPs vote in favour of it. It may, however, be necessary to sit the Leader of the Opposition down in a darkened room and explain to him very slowly and in words of one syllable why it really is essential that Labour should vote against a government motion for an early General Election, unless Brexit has first been postponed to a date that will fall well after the date of the election.

For reasons that I have previously explained, a motion of No Confidence, on the other hand, looks increasingly like a non-starter. The inability of MPs to agree on a caretaker prime minister only serves to confirm this.

UPDATE (26.8.19): It seems that prorogation is still under active consideration by the government; but as to this, see my earlier blog post on that topic.

Another ploy that the government may try in an effort to defy parliament is to attempt to engineer an early election. It appears that two main options are being considered:

(1) Allow a No Confidence motion proposed by the Leader of the Opposition to be passed, by instructing Tory MPs to abstain on the motion. As I explained earlier, there would not appear to be any obligation on ‘Reckless’ Johnson to resign after such a vote, and in the event of no positive motion of confidence then being proposed within a 14-day period, a General Election would thereafter be held at a time of the PM’s choosing. Even if Johnson were to resign, it is very unlikely that Corbyn could form a government that would command the confidence of the House of Commons, and so this too would lead to an early election.

(2) Introduce simple amending legislation, ether to repeal the Fixed Parliaments Act 2011 or to provide that, notwithstanding the provisions of the Act, a General Election should be held forthwith. Repeal of the 2011 Act could then be followed by a motion to hold an election, which would require only a simple majority.

Neither of these options is without risk for the government. Corbyn may be persuaded that it could be tactically disadvantageous to propose a No Confidence motion at this stage, especially if this could be turned into a trap rigged by the Tories to precipitate an early election timed to ensure that parliament could not then prevent a No Deal Brexit. The alternative of legislation to repeal or suspend the Fixed Term Parliaments Act might be defeated by both the opposition and rebel Tories combining to defeat such a move (but this again would require the Labour leadership to appreciate that voting for any such legislation would be to walk into a Tory trap).

The answer would clearly be for opposition parties, in conjunction with Conservatives who oppose a No Deal Brexit, to take control of the Commons order paper, and to pass new or amending legislation that would require the government to delay Brexit until after a General Election, and possibly also a fresh referendum, has first been held. This legislation would also have to be passed by the House of Lords, but it is to be hoped that any attempt at a filibuster by Brexiteers in the Lords could be prevented by appropriate use of the Lords’ procedural rules.

With careful planning and close co-operation between parties, the Commons could prevent a disastrous No Deal Brexit on 31 October and force ‘Reckless’ Johnson to change course.

© MARTIN H GOODALL