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 and therefore 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or inevitable in the effect on individuals’ rights about the Article 50 notification, which could be unilaterally withdrawn at any time while the UK remained a member State.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.
Waiting for Godot 
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This sounds promising, but what will be the counter argument?
I’m not at all sure about this line of argument. As you know, I always thought Article 50 to be revocable. Thus its ‘triggering’ was not like that of a gun, but a bomb. A bullet did not fly from the barrel, impossible to recall, but a countdown timer was set on an explosive charge that would blow up the bridge joining us and the EU two years thence.
With the Supreme Court assuming a gun rather than a bomb, because the bullet from the gun was very likely to cause damage, the court decided that the pulling of the trigger had to be expressly authorised by Parliament. But there was no implication that I can see in the Supreme Court judgement that it could not be pulled unless and until every possible detail of that damage had been assessed and agreed upon. Indeed, this would have been impossible because of course that could not be established until a withdrawal agreement was on the table and a withdrawal agreement could not start to be negotiated until Article 50 was triggered. So express statutory authority was necessary to trigger Article 50 because damage could be caused, but it must be implicit that this was sufficient statutory authority for the maximum damage that could result from the failure to reach an agreement and a NoDeal crashout as this was a clearly foreseeable possible consequence of an Article 50 notification. Indeed an inevitable one if a withdrawal agreement could not be reached.
As it turns out, maximum damage can be avoided even if a withdrawal agreement cannot be reached because Article 50 can be revoked. If things had been the other way around, and at the time of authorising the Article 50 notification it was understood to be revocable, then of course things would be different. MPs would rightly complain that they had voted in the expectation of being able to change their minds about leaving the EU depending on how the negotiations turned out, and thus that their authorisation of the notification did not give express statutory authority to leave without a deal. Prorogation of Parliament to prevent MPs from exercising a choice that they believed they would have when voting for the notification would obviously be profoundly undemocratic. But in fact MPs, told that the Prime Minister had a gun in he hands, told that once the bullet left the barrel it could not be recalled, and knowing that the damage likely to be caused was then incalculable, overwhelmingly voted that she should pull the trigger, with only the SNP MPs and a handful of others voting against. Nor should it be forgotten that the EU were egging her on, urging her to pull it as soon as possible (and from well before the Supreme Court decision).
However, as it now turns out that the Prime Minister did not fire a bullet, but set the countdown timer on a bomb instead, so what? The destruction of the bridge was authorised by the notification whether or not a suitable alternative route was in place before the bridge were blown up. May’s Withdrawal Agreement represented the construction of a temporary alternative route pending the building of a more permanent one once the ‘future framework’ is established. The Parliamentary debates earlier this year showed that no MPs can by then have been unaware that if they did not approve the alternative route and the charge went off then that would be that and our bridge to the EU gone. So they have twice reset the clock on the timer. The ECJ judgement on the revocability of Article 50 had given another option, to cut the wires to the bomb and deactivate it by revoking Article 50, but this didn’t find many takers. The MPs who gave express statutory authority to setting the timer on a bomb that will blow up the bridge have failed on numerous occasions either to approve an alternative route or to cut the wires to the bomb. To my mind they have thus far clearly chosen not to change their minds and so sufficient statutory authority remains in place for NoDeal.
Nor indeed does there seem to be sufficient indication that enough might change their minds for a persuasive case to be made that prorogation of Parliament would prevent them from expressing that change of mind. If the consequence is that the UK leaves the EU without a deal when polling suggests that barely a fifth of voters wish to see that happen then I think that would be a profound failure of democracy. And that would be so whatever the actual consequences of our leaving. But it seems to me that the cause would not be the prorogation of Parliament, but the failure of MPs time after time to take the multiple opportunities open to them to take a different course.
You make no mention of the Withdraw Act 2018 itself which Parliament approved and which sets “exit day”, which was approved (or not disapproved of) as 31 October, the agreeing to an agreement being an optional part of that legislation.
Consider this hypothetical scenario. What if Parliament actually approved the withdrawal agreement and enacted a statute implementing it according to section 13 of the EU Withdrawal Act 2018 [EUWA] but then, due to a change of policy under a new Prime Minister, the executive decided not to ratify the withdrawal agreement?
Section 13 EUWA does not require the executive to ratify – it merely permits ratification: “The withdrawal agreement may be ratified only if…”.
What if the new government policy was to withdraw from the EU without an agreement – would the EUWA permit this? I think the answer must be no because in that case major constitutional changes could be made by ministerial action alone, which is contrary to the Miller decision: “We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”
This means that the EUWA has become part of the UK’s “constitutional requirements” for an effective EU withdrawal under Article 50 TEU. Because the EUWA does not provide a mechanism for EU withdrawal to take place without Parliament approving a withdrawal agreement, it cannot be interpreted as permitting withdrawal without one.
It follows that the UK’s “decision” to withdraw from the EU has not yet crystallized because its constitutional requirements have not been met. Article 50 will not result in the actual disapplication of the treaties until those requirements are met. The 2 year time limit is provisional and will automatically lapse unless an extension is agreed or a withdrawal agreement is ratified.
The EUWA 2018 only permits and facilitates EU withdrawal via an agreement with the EU. To see this, look at section 10(2): adjustments to the NI border are only permitted with agreement with the EU.
10 Continuation of North-South co-operation and the prevention of new border arrangements
(2) Nothing in section 8, 9 or 23(1) or (6) of this Act authorises regulations which—
(a) diminish any form of North-South cooperation provided for by the Belfast Agreement (as defined by section 98 of the Northern Ireland Act 1998), or
(b) create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU.
A further comment about section 10 EUWA 2018: subsection (1) subjects ALL powers contained in the act to tests. Part (b) stipulates that one of these tests are the provisions of the joint report from phase 1 of the withdrawal negotiations, which provide, inter alia, for the “alignment” of regulations relating to trade across the NI border.
The commencement powers under section 24(4) state that “The provisions of this Act… come into force on such day as a Minister of the Crown may by regulations appoint”. These powers are directly regulated by section 10(1)(b).
This means that the recent order commencing section 1 EUWA (which repeals the European Communities Act 1972 [ECA] on exit day) is arguably void because repealing the ECA without implementing a withdrawal agreement under section 13 EUWA removes the legal basis for the “alignment” of cross-border trade regulations without an effective replacement. This is further evidence that the EUWA is intended to facilitate an EU withdrawal exclusively via a ratified agreement and does NOT permit a “no deal” withdrawal.
10 Continuation of North-South co-operation and the prevention of new border arrangements
(1) In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must—
(a) act in a way that is compatible with the terms of the Northern Ireland Act 1998, and
(b) have due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.
Regarding the user of the prorogation power, I think it is directly regulated by the Human Rights Act 1998, which gives statutory force to the European Convention of Human Rights [ECHR].
Section 6(1) (“Acts of public authorities”) states that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”.
Section 6(3)(b) defines a “public authority” as “any person certain of whose functions are functions of a public nature”. This description includes the Queen as the UK’s Head of State and section 22(5) explicitly states: “This Act binds the Crown.” It also includes the Prime Minister and members of the Privy Council, who advise the Queen.
While Parliament is prorogued, the UK government can continue legislating by statutory instrument, so the UK government in effect becomes the UK legislature.
Article 3 Protocol 1 of the ECHR states: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Although the UK has held elections for MPs in Parliament, it has not held elections for members of the UK government (they are appointed). So, proroging Parliament for any significant period of time which prevents it from functioning as the UK’s legislature is incompatible with Article 3 Protocol 1.
Section 8 (“Judicial remedies”) gives the courts wide powers to deal with unlawful acts, which would certainly include nullification of the prorogation order on the grounds that it is unlawful:
“In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”