Tuesday, 24 September 2019

The most important constitutional case in living memory

Readers should hardly be surprised that I am devoting a blog post today to what by any measure is a more important judicial ruling than any that has been delivered for as long as anyone can remember. Today’s judgment of the Supreme Court is indeed momentous.

The Supreme Court had to address two main issues – first, whether the prorogation of parliament and the procedures leading to that prorogation are justiciable at all, and secondly (if that question was answered in the affirmative) whether these procedures, in the form and manner in which they were followed, were in practice unlawful. In the event of the Court finding that these procedures were vitiated by illegality, a third issue to be addressed was the precise legal effect of that unlawful conduct, and what relief the Court should grant in order to remedy such illegality.

The Court delivered a unanimous decision of all 11 Justices of the Supreme Court. The decision could not have been clearer. They held that this issue is undoubtedly justiciable (and has been since at least 1611). The prorogation was not ‘a proceeding in parliament’, and was not therefore immune from judicial review under the Bill of Rights. They also held that not only was the procedure leading to prorogation unlawful, but this also rendered the prorogation itself unlawful. They therefore upheld the declaration of the Inner House of the Court of Session that both the Order in Council and the prorogation itself was “void and of no effect”. Parliament has not therefore been prorogued, and it is open to the Speaker and the Lord Speaker to make immediate arrangements to resume the sitting of both Houses (just as I suggested in a previous post a few days ago).

It follows (although the Court did not have to go on to say this) that any further attempt by the Prime Minister to prorogue parliament would be equally unlawful if it has the effect of preventing parliament from continuing to hold the executive to account and to transact urgent business in the extraordinary circumstances facing the country in the next few weeks. It was the effect of the prorogation, rather than its motivation, that led to the prorogation being quashed, and this makes it much more difficult for a further prorogation to be lawfully concocted. It may, in fact, be necessary to cancel or delay the Queen’s Speech on 14 October. In any event, the Court made it clear that a prorogation for this purpose would need to be no longer than four to six days.

Most of the noise surrounding the current litigation, much of it from ill-informed and ill-disposed partisans, has entirely missed the true significance and importance of this case. Although ‘Brexit’ was the immediate trigger for this litigation, today’s judgment of the Supreme Court was not actually directed to that controversy. As the President of the Supreme Court, Lady Hale, has emphasised, this judgment has absolutely no effect on how, when or whether the UK leaves the European Union. The two appeals before the Court on this occasion were solely focused on the relationship between parliament and the executive, and the role of the courts in adjudicating on this relationship and on the exercise of the purported powers of the executive if or when they impinge on the sovereignty of parliament and its constitutional role.

Let us be absolutely clear. In this country we adhere strongly to the Rule of Law. As Lord Denning put it with characteristic clarity: - “Be you never so high, the law is above you.” There is no person and no institution (even the Prime Minister purporting to exercise the royal prerogative) who is immune from judicial supervision. Contrary to the submissions of Lord Keen to the Supreme Court, there is nothing that is ‘forbidden territory’ to the courts. The judges of our superior courts are the bulwark of our liberty, both individually and collectively, and the guardians of our constitution.

It is therefore essential that the role of the courts in adjudicating on such matters is recognised and acknowledged, and that the judgments of the courts are treated with respect and obeyed. There must be no repetition of the disgraceful conduct of one newspaper in calling the judges “Enemies of the People” following a judgment in previous litigation on similarly important constitutional issues. The then editor of that newspaper was lucky not to have been hauled before the court for gross contempt, and made to deliver a grovelling apology on pain of immediate incarceration until or unless his newspaper’s egregious contempt was purged.

ADDENDUM The Speaker of the Commons, John Bercow, has confirmed that the Commons will resume its sitting at 11.30 a.m. tomorrow morning (Wednesday). Prime Minister's questions will not be held tomorrow, as they usually are on a Wednesday, but Bercow made it clear that there will be the opportunity tomorrow for MPs to submit urgent questions to ministers, for ministerial statements to be made to the House and for emergency debates to be held under Standing Order 24.


Wednesday, 11 September 2019

An interesting question

Readers are well aware that I am as interested in constitutional and administrative law as I am in planning law, and at present the former is rather more interesting and eventful than the latter.

The Inner House of the Court of Session in Edinburgh determined in a unanimous judgment this morning that the advice given by the government to the Queen that parliament should be prorogued was unlawful, and that the prorogation itself was accordingly unlawful, and was therefore “null and void”.

The court made a declaration to that effect, but adjourned any ancillary orders to a later date, pending an appeal to the Supreme Court. However, until or unless the Court of Session’s judgment is overturned by the Supreme Court, it is of binding effect and parliament is therefore free to sit again immediately.

Parliament rose on Monday night (actually in the early hours of Tuesday) solely due to the prorogation of parliament. So far as I am aware, the House of Commons did not vote to adjourn, nor did it go into recess. Although I cannot now find the passage in Hansard, I seem to recall that a formal motion was moved by the Leader of the House earlier in the day, in words that I cannot recall with complete accuracy, the gist of which was: “That this House do not adjourn pending her Majesty’s pleasure……….” - foreshadowing the prorogation that was due to take place after the conclusion of the day’s business that day.

If I am right, then there is no requirement that the government should ‘recall’ parliament. Both Houses of parliament can simply resume their sittings forthwith, and can continue to sit pending the judgment of the Supreme Court on the appeals against the judgment of the High Court in England and the contrary judgment of the Inner House of the Court of Session in Scotland.

The Speaker, I suggest, in liaison with the Lord Speaker (Lord Fowler) should take the urgent advice of the Clerk of the Parliaments (and other legal advice if this is thought necessary), and subject to that advice, should simply inform MPs that the sittings of the House of Commons will resume immediately, in practice tomorrow, Thursday 12 September.

The Supreme Court hearing is due to take place next week, on 17, 18 and 19 September, and it seems likely that judgment will be reserved until the following week commencing Monday 23 September. If the first instance decisions in the two cases before the court are upheld, so that the prorogation of parliament was after all lawful, prorogation would then be effective once again, subject to whatever formalities may be necessary in that connection. If, on the other hand, the Supreme Court takes the same view as the Inner House of the Court of Session, parliament can continue to sit without further interruption.

If the Supreme Court rules against prorogation, then whether the House of Commons will vote to go into recess later this month for the party conferences, as they usually do, is a moot point. Bearing in mind that the government has lost its majority in the Commons, there is a distinct possibility that the House will vote to continue its sittings without breaking for the party conferences.

It remains to be seen whether the government will still proceed with a Queen’s Speech on 14 October. If they do, then only a brief prorogation (no more than a couple of days) would suffice at the end of the preceding week. A short prorogation for that purpose would be perfectly lawful.

As to what else could happen in the meantime, I am making no predictions at all. I don’t know what we have done to bring a Chinese curse down on ourselves, but we do indeed live in interesting times.


Tuesday, 3 September 2019

Permitted Changes of Use – and now the Seminar

In addition to publishing the Third Edition of my book, “A Practical Guide to Permitted Changes of Use” in October, BATH PUBLISHING are organising a new seminar on this subject, in conjunction with KEYSTONE LAW, which is to be held on Thursday 21 November at the Institution of Civil Engineers at One Great George Street, London SW1V 3AA, just round the corner from Parliament Square (nearest tube station: Westminster - 2 minutes’ walk). Tickets, which are limited to 100 in total, and are already selling fast.

This will be a morning event, starting at 10.00 a.m. (with registration from 9.30) and is timed to finish at around 1.00 p.m., including a mid-morning coffee break. The charge for this event will be a very reasonable £150 +VAT if you book before 14 October, and the price includes a copy of the Third Edition of my book, (both the print & digital versions – a package worth £90 when published), which will be sent to all delegates on publication.

The book has now reached the First Proof stage, and it is a reflection of the important changes to permitted changes of use in the past three years that the page numbering now goes up to more than 470 (compared with a page count of 340 for the Second Edition) – an increase of more than 130 pages, or roughly 40% more material. (And it’s all meaty stuff!)

The seminar will cover those topics that have been the subject of change since the end of 2016 and, as before, there will be a panel discussion to give delegates an opportunity to put questions to the speakers.

The seminar will again be chaired by Brian Waters, principal of the Boisot Waters Cohen Partnership, the well-known Chair of the London Planning Forum, who was a popular and lively chairman of our previous seminars.

I shall be speaking on changes to ministerial advice on Class Q (residential conversion of agricultural buildings) and developing practice in relation to that class of development, especially as regards permissible building operations and structural alterations.

Alastair Mills of Landmark Chambers, who is the author of Bath Publishing’s book on Interpreting the NPPF will discuss a number of judgments that have clarified and developed various aspects of the law on permitted changes of use over the past three years.

The final speaker will be my colleague Ben Garbett of Keystone Law, who will cover some of the other important topics dealt with in this new edition of A Practical Guide to Permitted Changes of Use.

Professional delegates will be able to claim 2½ hours’ CPD for this event.

We’ve made it extremely easy for you take advantage of the excellent bargain that the discounted package offers. All you need to do is to click on the “Book Now” button below the seminar icon on the left-hand side-bar and then follow the instructions shown. If you want to read more about the seminar first you can find details of the programme and venue or book online on the Bath Publishing website here.


Monday, 2 September 2019

“…………………………..but stoopid.”

The increasingly toxic emissions from 10 Downing Street in the last day or so are not what one might reasonably expect from a government confident of its position. They betray an air of increasing desperation. The government is now hoist with its own petard. Having engineered a completely unnecessary and unjustified prorogation of parliament, they have galvanised those opposed to a No Deal Brexit into urgent and co-ordinated action, whereas opponents on their own backbenches may otherwise have been prepared to wait a few more weeks to see if the government might after all succeed in negotiating a revised withdrawal agreement. The mounting panic in the Führerbunker was manifested by the threat which emerged yesterday to withdraw the whip from Tory backbenchers who vote against the government this week, and to de-select them as Tory party candidates in the next election. But those threats have come too late to deter a substantial backbench revolt. A significant number of Tory backbenchers have now reached the conclusion that they must put the national interest before their party’s narrow political interests and, in view of the extremist takeover of their party, they are now prepared to sacrifice any future political career they might have had as Tories, and to fight on as independents (or as a members of a different party). In some cases, they might simply give up politics altogether.

Faced with a real prospect of defeat in parliament this week, the government appears now to be contemplating an immediate move to call a General Election, and this is what could emerge from this afternoon’s unscheduled cabinet meeting. I discussed this possibility in a recent post, and warned that it would be a Tory trap that the Labour Party should avoid. Tony Blair made the same point in a speech this morning, when he described it as an elephant trap. Labour must not fall into that trap by voting for a General Election before parliament has removed the threat of a No Deal Brexit. It is essential that parliament should first pass binding legislation that forces the government to secure a further extension of the Article 50 process for long enough to enable the Brexit issue to be properly resolved, preferably with a fresh referendum to enable the electorate to pass a final verdict on Brexit in light of all that is now known about it. It is equally important that, before voting for a General Election, parliament ensures that the government has faithfully complied with that legislation (by means of a mandatory order from the courts, if that becomes necessary).

I discussed the mechanism and timing of a General Election in another blog post recently. If Labour were to vote for a General Election now, its timing could be arranged by the PM so as to ensure that it is too late to prevent or delay a No Deal Brexit but before the catastrophic results of a No Deal Brexit make themselves felt. From Reckless Johnson’s point of view, Thursday 31 October would be perfect timing for Polling Day. Bringing forward a motion for a General Election as early as tomorrow would also make it difficult, if not impossible, for backbench legislation to be passed that might force the postponement of Brexit beyond 31 October. If the Labour front bench is stupid enough to fall for this one, then it’s game over, and a No Deal Brexit becomes inevitable.

As for the election itself - with the government on course to deliver a No Deal Brexit on 31 October as Johnson promised, the guns of the Brexit Party would effectively be spiked. In those circumstances, and based on this uniquely propitious timing, the Tories would stand a very good chance of securing an overall majority, and Labour would be condemned to impotent opposition for another five years. The Labour Party membership, however, might not easily forgive Jeremy Corbyn for bringing about this electoral disaster, and such an outcome could spell the effective end of his political career.

UPDATE (6.15 p.m. Monday) : Johnson has just appeared on the steps of No.10, but instead of announcing a bid for an early election made a rather desperate, some might even say hopeless or pathetic, last-minute appeal to MPs (and especially to his own backbenchers) not to vote to delay Brexit. Yet commentators do not believe government plans for an early election have been shelved; all the noises coming out of Downing Street suggest that this is exactly what is being planned, and that this is what will be proposed if the government loses the parliamentary battle this week. But an election actually depends on getting the Commons to vote for it, and if Labour is wise, they won't vote for it until Article 50 has been extended for three months, as this week's Bill will propose.

UPDATE (Tuesday morning) : Labour seems to have got the message that an early election could be a trap, and are now talking about correct sequencing, i.e. delay Brexit first. Slightly worryingly, however, they are also talking about seeking 'a crystal-clear guarantee' about the election date before voting for it. But there can be no such guarantee. The actual date of an election is fixed on the PM's recommendation to the Queen. No Commons motion about the election date would be binding. The PM, even if he has given a 'guarantee' about the election date, could then produce some spurious argument that circumstances had subsequently changed in some unspecified way which had made it necessary to fix an election date of his own choosing. So it is essential that the opposition parties should vote against any proposal by the government to hold a General Election until legislation to delay Brexit for at least three months is actually on the statute book and has been implemented by the government. Johnson is said to want an election on 14 October (i.e. before the EU summit later that same week, when any possible tweak of the draft withdrawal agreement would be signed off by the Council of Ministers). [Incidentally, is the government seriously proposing to hold an election on a Monday ?] In fact, a vote on the possibility of an election should be postponed until after that EU summit has been held, because it is at that summit that the extension of Article 50 (called for by the legislation to be passed this week) will be agreed by the other 27 EU member states. If and when this has been achieved, then the PM could be given his election, but not before.

UPDATE (Thursday morning) : So far, so good. The Tory attempt to filibuster the Brexit Bill in the Lords has now been abandoned, and so it should be on the statute book by Monday at the latest. Meanwhile the opposition parties successfully resisted the government's attempt yesterday to call a General Election until the Bill now before the Lords has been passed. However, that is not enough to prevent Johnson from pulling a fast one and engineering a volte face to bring about a No Deal Brexit after all. Opposition MPs don't trust Johnson an inch, and they are right not to do so. That is why it is essential to withhold consent to an election until an extension to Article 50 has been secured from the EU. This cannot be guaranteed until the EU summit approves it on 17-18 October.

Clearly, with the government now in a minority in the Commons an election is inevitable, but Labour should ignore Tory taunts that they are 'frit' or frightened of an election. They should continue to refuse an election until Monday 21 October (so that in practice, the election would then be held at the beginning of December). Unfortunately, there are siren calls from within the Labour Party (from Shame-us Milne, the Labour counterpart to No.10's 'Dom' Cunning-Plans, among others) to go for an election now. Labour MPs know better and must stiffen Corbyn's resolve to stick to his guns, and to resist a General Election until Brexit has been postponed.