Could ministerial advice to the Queen to prorogue Parliament or to refuse assent to a Parliamentary Bill be challenged in the courts?

Paul Bowen QC

This post continues the debate that has arisen following recent Parliamentary efforts to seize the initiative from the Government to avoid a no-deal Brexit, in particular the Cooper- Letwin Bill, and certain proposals that have emerged by which it is suggested the Government could thwart these efforts.  Strongly opposing views have been expressed as to the constitutionality of both these initiatives and of the proposed Government responses.  On one side the view has been expressed by highly eminent law Professors Finnis (emeritus), Brazier and Ekins, together with Sir Stephen Laws, former first Parliamentary Counsel, that these Parliamentary initiatives are somehow unconstitutional and the Government could respond by advising the Queen to either prorogue Parliament until after the Brexit date of departure or to withhold assent to any Parliamentary Bill that emerges as a result of such an initiative; or, in Prof. Finnis’ more recent suggestion, for the Lord Chancellor to refuse to even forward such a Bill for royal assent.  In his most recent post, Prof. Ekins suggests that it is ‘unconstitutional’ and ‘contrary to fundamental principles of parliamentary Government’ for a majority of MPs ‘to govern without forming a Government’. In the face of such action, he says, the Government would be acting ‘rationally’ by advising the Queen to prorogue Parliament or to withhold royal assent. Robert Craig has also argued that the Government may be justified in advising the Queen to withhold assent in these circumstances.  The other side of the debate is represented by a significant number of equally eminent academic lawyers including Professors Mark Elliott, Thomas Poole, Gavin Phillipson and Jeff King and by senior practitioners including Lord Pannick QC and Dinah Rose QC, who are all signatories to a letter set out in a letter to the Times on 3 April 2019.  Their view is that for the Government to advise the monarch to frustrate the will of the majority in Parliament in any of the ways suggested by Finnis et al is, to use Mark Elliott’s phrase, a ‘constitutional monstrosity’.

I strongly agree with the latter group, for all the reasons they give, and notwithstanding Professor Finnis’ most recent response to Professor Elliott.  I will argue that for the monarch to take either course of action in order to frustrate a majority of elected MPs in Parliament would be unconstitutional, whether she did so on the advice of the Prime Minister or not.  Moreover, for the Prime Minister to advise the Queen so to act would be unlawful and susceptible to challenge by way of judicial review.  While I recognise such a challenge would risk further ‘enemies of the people’ headlines it would be as nothing to the constitutional crisis that would be precipitated by the Queen either acting, or refusing to act, upon the Prime Minister’s advice.  Professor Finnis’ suggestion for avoiding this constitutional crisis – that the Lord Chancellor simply refuse to forward the Bill for royal assent, so the Queen is not confronted by this dilemma – sounds like a recipe for an executive putsch if allowed to become a precedent.  I suggest the Lord Chancellor has no discretion at all as to whether (Bennion, s 38), or when, to forward a Bill for assent, and – if he does – cannot exercise it for the purpose of frustrating Parliament’s will.

As to my first argument, there are four reasons why it would be unconstitutional for the monarch to take either course of action proposed by Finnis et al.  First, it would undermine the grundnorm of the British constitution, Parliamentary sovereignty, and would ‘reverse the result of the Civil war’, to use Lord Templeman’s graphic phrase in M v Home Office [1994] 1 AC 377.   Parliamentary sovereignty is enshrined in the final legislative outcome of the Civil War and the Glorious Revolution, s 1 of the Bill of Rights 1689:

That the pretended power of suspending of Laws or the execution of Laws by Regall authority without Consent of Parlyament is illegall. 

S 1 is given effect by the preamble to every Act of the UK Parliament:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: …

This preamble is modified for an Act passed under the Parliaments Act 1911 and 1949 by the House of Commons alone, but with equivalent effect: see s 4(1) of the 1911 Act.

So while in our constitutional monarchy an Act of Parliament is only enacted once the monarch has assented to it (s 1 Royal Assent Act 1967), the power to legislate is entirely Parliament’s.  The consent of Parliament (at least, of the elected Commons) is required for all ‘Laws’ and the monarch’s assent to a Bill that has passed both Houses of Parliament is a ‘constitutional formality’ (Lord Bingham in Jackson v AG [2006] 1 AC 262 at [10]) and her power to withhold assent ‘purely theoretical’ (Lord Collins in Barclay (No 1) at [80]).   The monarch has not withheld consent to a Bill since 1707 and it would be unconstitutional for her now do so other than, possibly, in a ‘near revolutionary’ situation (Bennion, s 38).  Nor, it would follow, could she prorogue Parliament to frustrate Parliament’s attempts to legislate.

Second, even if the Prime Minister advised her to act otherwise the Queen would be bound, by the principle of Parliamentary sovereignty, to respect the will of Parliament.  By s 1 Bill of Rights and the Parliament Acts the making of an Act of Parliament requires the consent of (at least) the elected Commons; it does not require the consent of the Government.  In practice, of course, it will usually be the Government that brings forward legislation and seeks the Queen’s assent.  It is only in extraordinary circumstances such as the present that any Bill would pass through Parliament in the teeth of Government opposition.  While there is a convention that the monarch acts upon the advice of her Ministers, that convention is a consequence of the constitutional principle that the Queen acts with the consent of Parliament, whose will the Prime Minister will usually embody as the head of a Government which has the confidence of Parliament.  The fact that the Government has the confidence of Parliament (in that a motion of no confidence has not been passed under the Fixed Terms Parliament Act 2011) does not, however, mean that the Queen must follow the advice of the Prime Minister if that conflicts with the expressed will of Parliament in the form of a Bill presented for royal assent.  I agree with Professor Poole that the convention that the Queen follows the advice of her ministers is of a lower order than the constitutional principle that she respects the will of Parliament.  In the unlikely event that the two are in conflict, the latter prevails.

Third, the principle of Parliamentary sovereignty as it has developed for the last 350 years rests upon the fact that Parliament – at least, the House of Commons – represents the will of the electorate freely expressed through the ballot box at a general election (see Lord Hoffman R (Bancoult) v SSFCO [2009] 1 A.C. 453, [35]).   For the monarch to withhold assent to a Parliamentary Bill would not only breach the 350 year-old democratic underpinning of our traditional constitution but would also be incompatible with Article 3 of the First Protocol to the European Convention (A3P1), given effect domestically by the Human Rights Act 1998 and in the light of which our constitutional laws and conventions must be read:

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.

In R (Barclay) v Lord Chancellor [2010] 1 A.C. 464, [80], Lord Collins suggested (obiter) that the refusal of the unelected Lords to pass legislation passed by the elected Commons might breach A3P1:

If a second chamber had a power permanently to frustrate the will of the democratically elected chamber, and the power was not purely theoretical, like Her Majesty’s power to withhold Royal Assent, then there would at the least be a case for breach of article 3.

It would follow that if the Queen exercised her power to withhold royal assent then that too would breach A3P1 as it would frustrate the will of the democratically elected chamber to enact primary legislation.  I should add that, both for orthodox constitutional reasons and A3P1, primary legislation enacted by Parliament prevails over any expressed view of the ‘people’ in an earlier referendum, ours being a representative not a direct democracy.  The referendum was a creature of Parliament; an Act of Parliament was required for the Article 50 process to begin; and Parliament could revoke Article 50 by similar means.

Fourth, and contrary to the view expressed by Finnis et al, there is nothing unconstitutional about legislation that is passed by a majority of MPs in Parliament which has not been moved by, and is not supported by, the Government of the day.  Every Private Member’s Bill is capable of being passed into law, although the Government’s control of the Parliamentary timetable under Standing Order 14 means that the prospects of such a Bill being passed without government support are tiny, which is why the Cooper-Letwin Bill first required a successful motion to amend SO 14.  But a Private Member’s Bill, when passed, is not unconstitutional.  So the argument that the Government is entitled to respond to such legislation by drawing the Queen from her purely formal position (and one of strict neutrality) into the political ring does not begin to get off the ground.

My second argument is that it would be unlawful for the Prime Minister to advise the Queen to exercise her power of prorogation or to withhold assent to a Bill in order to frustrate the will of Parliament, because she would be advising the Queen to do that which she has no power to do.  I also consider that any such advice would be susceptible to judicial review.  In R (Barclay) v Lord Chancellor (No 2) (SC(E)) [2015] AC 276, the Supreme Court held that the giving of unlawful advice by the Privy Council (in the form of the Secretary of State) to the Queen in the exercise of her power to give royal assent was justiciable.  Granted, that was in the context of the passage of primary legislation by the Parliament of Sark, a Crown Dependency, and there are clear differences between the legislative processes of Sark and Westminster, not least that in Sark royal assent for primary legislation may be withheld on grounds that it is contrary to good government or the UK’s international obligations (R (Barclay and others) v Lord Chancellor [2010] 1 A.C. 464, [9-10]).   However, I do not consider these differences affect the question of the justiciability of such advice. There is a more difficult question whether a judicial review of such advice would be precluded by s 9 of the Bill of Rights 1689 as ‘impeaching’ or ‘questioning’ any ‘proceedings in Parliament’.   In Barclay (No 2) Baroness Hale (giving the judgment of the Supreme Court) held that the giving of royal assent by the Queen to an Act of the UK Parliament was immunised from challenge by s 9:

Nor is the analogy with Royal Assent to Acts of the United Kingdom Parliament exact: the Queen in Parliament is sovereign and its procedures cannot be questioned in the courts of the United Kingdom.

However, this observation was obiter and not the subject of full argument and, moreover, the court was not considering the situation with which we are concerned.  In my view s 9 would not apply in the circumstances envisaged.  The giving of advice by the Prime Minister to the Queen is not an act of Parliament but of the executive and is therefore not caught by s 9:  Bank Mellat v HM Treasury [2013] UKSC 38, [43], [56].   Moreover, to exclude the courts’ review of such advice in the present circumstances would be contrary to the objects and purpose of s 9 which are, first, to enshrine the sovereignty of Parliament as derived from its representative character and as affirmed by s 1 of the Bill of Rights; and, second, to make clear the limits of the courts’ jurisdiction in reviewing Parliament’s actions taken in that capacity (Bancoult, [35]).  The giving of advice by the executive whose sole purpose is to frustrate the will of Parliament would be the antithesis of Parliament’s intention in promulgating s 9 and, in those exceptional circumstances, it would not apply to exclude the court’s supervision (Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997).  This interpretation of s 9 would also be required by s 3 Human Rights Act 1998 to ensure its compatibility with A3P1 (and see, by analogy, Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825, [34]).

These are extraordinary times, and an attempt by the Government to thwart the expressed will of Parliament by advising the Queen to prorogue Parliament or to withhold assent to a Bill would be an extraordinary constitutional development, as would the Lord Chancellor’s refusal to submit such a Bill for royal assent.  If faced with a challenge to such advice or action I think it likely that the courts, as the ultimate guardians of the Constitution, would accept they had jurisdiction to decide its unlawfulness.

Paul Bowen QC is a barrister at Brick Court Chambers specialising in public and human rights law and Honorary Professor at the School of Politics and Law, Sussex University

EU law does not compel UK to participate in European Parliament elections

Lord Anderson of Ipswich KBE QC, Marie Demetriou QC and Emma Mockford of Brick Court Chambers have today published an Opinion, along with two other QCs and Professor Piet Eeckhout, Dean of the Law Faculty at UCL, grappling with the controversial issue of whether the UK need hold European Parliamentary elections in the event that there is any further extension of Article 50 beyond April 2019.

Many key figures in the Brexit process have appeared to assume that such elections would be inevitable if there is a further extension. Indeed, the Prime Minister reported to the House of Commons just last week that any further extension of the Article 50 notification period “would certainly mean participation in the European parliamentary elections”.

However, the Opinion published today concludes that this is wrong as a matter of law. Its authors dismiss concerns that a failure to hold elections in the UK could invalidate subsequent EU laws. They proceed to examine the application of EU electoral law, and the principle of representative democracy, to a departing member state whose citizens will not be affected by what the European Parliament decides. And finally, they suggest some practical mechanisms, falling short of outright treaty change, by which an extension could be assured without the need for European elections in the UK at all.

This is a matter not just of legal disagreement, but – as identified by no less a figure than Eleanor Sharpston, a serving British member of the EU’s Court of Justice – of huge practical significance, given that:

  • The prospect of participating in European elections is viewed with intense distaste by many MPs. Campaigning to elect MEPs for a nominal five-year term, almost three years after the vote to leave the EU, is seen — particularly in strongly Leave areas — as something to be avoided at almost any cost.
  • Even if the political will could be found to hold the elections, it will only be possible to do so once preparations have been made. These include the giving of notice by returning officers, which, under UK law, must be done by 12 April for an election on 23 May.
  • If the UK and EU27 maintain the rigid view that extension past April 12 requires European elections to be held, and if such elections are either politically impossible or precluded by the passage of time, the consequences could be dire.
  • In particular, the refusal of a further extension to the Article 50 period on this ground would dramatically narrow the UK’s options and could help precipitate a no-deal Brexit.

The opinion is here.

An article by David Anderson on the same subject also appears in The Times today, and is here.

BBC’s reality check on using Article 62 of the Vienna Convention on the law of treaties

Richard Gordon QC

Article 62 VCLT seems like a non-starter to kick-start the Withdrawal Agreement into life. The link to the BBC’s reality-check on this is here.

Lord Anderson of Ipswich KBE QC advises People’s Vote Campaign

David Anderson (Lord Anderson of Ipswich KBE QC) has, with others, written two opinions for the People’s Vote Campaign on issues covered by the Attorney-General in his recent advice on the durability of the backstop.

Links to them are here and here.

Economic Sanctions after Brexit with Maya Lester QC

Introduction

This webinar, organised by MBL Seminars and presented by Maya Lester QC, will explain why and how Brexit affects sanctions, which is essential for all those having to comply with or understand sanctions law and navigate the complex international framework.

It is aimed at anyone with an interest in sanctions.

What You Will Learn

This webinar will cover the following:

  • Why does Brexit have an impact on sanctions in the UK?
  • Why is this important for business?
  • What will the impact of Brexit be on sanctions policy?
  • What is the existing legal framework for sanctions in the UK and what will it be after Brexit?
  • What is in the Sanctions & Anti-Money Laundering Act 2018?

This pre-recorded webinar will be streamed at 12:30pm on Thursday 28th February 2019. Click here to book your place.

The EU-UK Withdrawal Agreement explained

The Article 50 negotiation process and principles for the United Kingdom’s departure from the European Union.

https://ec.europa.eu/commission/publications/eu-uk-withdrawal-agreement-explained_en 

The ‘Norway’ model for the UK after Brexit

Mads Andenas and Carl Baudenbacher

Could the EEA be a model for EU-British relations after Brexit? Would the EEA/EFTA States accept the UK? What are the advantages and disadvantages?

Both the Icelandic and the Norwegian governments have signalled their openness to the UK joining the EEA/EFTA. Iceland did so from the outset and Norway after some reluctance. Liechtenstein will not disagree.

Of the seven EFTA countries which took part in the EEA negotiations 1989-1991, Norway, Austria, Finland and Sweden went on to apply for EU membership. Austria, Finland and Sweden joined the EU after a year in EEA/EFTA. As a consequence of a negative referendum in late 1994, Norway remained in the EEA/EFTA, together with Iceland and Liechtenstein. In Switzerland, participation in the EEA on the EFTA side was rejected in a referendum in 1992. The Swiss then decided to negotiate bilateral arrangements with the EU, without institutions and with only limited access to the Single Market.

Norway comfortable in the EEA

After some difficulties, Norway is quite comfortable in the EFTA pillar of the EEA. In the first 25 years of its existence, the EFTA pillar (like the whole EEA) has functioned well. After the gradual completion of the Single Market, the principles and key rules are established; the reasons for political strain on the EEA few.

UK entry would change the current balance. Including the UK on the EFTA side of the EEA may not be in the narrow short-term self-interest of the current EEA/EFTA states. But if the UK and the EU side were to agree, the EEA/EFTA states would be unlikely to stand in the way of a new EU-UK institutional solution. UK membership would also add bargaining power.

Mum’s the word

Theresa May’s government has not so far wished to draw any attention to the EEA. The EU team was initially quite favourable, but now seems to have much else to address and didn’t want to complicate things for Mrs May. The same applies to the Norwegian government; it, too, has wished not to interfere in domestic British politics. The Icelanders were more outspoken.

Advantages for the UK

The benefits of EEA/EFTA membership are plain.

The EEA Agreement is a trade agreement and does not aim at an ‘ever-closer union’. British industry, including the City of London, would have access to the Single Market.
Britain would win back its sovereignty (‘take back control’) in foreign policy and foreign trade, agriculture and fisheries. It could strike its own trade deals. The EEA could provide the framework for cooperation that the UK wants in the fields of Justice and Home Affairs and Security and Defence.

Britain would no longer be subject to the jurisdiction of the ECJ, but of the EFTA Court with one or two British judges. The EFTA Court is a Single Market court distinguished by its market orientation and its reluctance to succumb to neo-mercantilist temptations.

The co-decision problem

The EEA/EFTA States have a ‘co-determination’ right in the enactment of new legislation; they do not have a ‘co-decision’ right. With the Single Market much closer to completion today than in the beginning of the 1990s this may, however, be less important than it once was. The ‘rule taker’ mantra doesn’t stand up to closer scrutiny. Britain’s heft could count for more as a member of the EEA/EFTA than it has in the past in the EU.

At all events, this ‘co-determination’ could be modified. When the EEA project was launched in 1989, Commission President Jacques Delors offered the EFTA States more than ‘co-determination’. He spoke of ‘common decision-making and administrative institutions’. With the exception of Switzerland, most of the EFTA States did not have strong feelings about this. They saw the EEA as a short transitional phase on their way to EU membership. Delors withdrew the offer; but, in the context of UK participation, it could be put back on the table. In fact the Brussels based Bruegel think tank made such proposals in August 2016.

Free movement of persons

In the EEA/EFTA there is currently free movement, but no European citizenship.
There is a safeguard clause, and to have its own court in the EFTA pillar provides another guarantee for British sovereignty.

EFTA Court preferable to “arbitration”

The arbitration mechanism in the current text of the withdrawal agreement is highly unusual. It is a mechanism for complete and formal subjugation to the ECJ, which has been taken from the EU’s association agreements with the former Soviet Republics Georgia, Moldova and Ukraine. Hardly any important question will be for the arbitration panel to decide without the interference of the ECJ. In today’s language, it is a fake arbitration court. The only negotiation victory from the point of view of the UK is that the proceedings will be in held in the language of Shakespeare.

The EFTA Court, on the other hand, is tried and tested. It is well established, works well, and the UK will know what it signs up to. It is under no obligation whatever to refer questions to the ECJ. Differences in case law have in the past 25 years been resolved by judicial dialogue, the EFTA Court in many cases influencing the ECJ.

The UK must want it

Until the vote in Parliament on the withdrawal agreement, the EU and the EEA/EFTA governments will lend no active support to the EEA and the Norway model. Nor will they be pressed upon the UK at any later stage.

The UK must want it – as the best, second best, or the only realistic way to go. It remains there as a viable alternative. A second structure in Europe consisting of friendly countries interested in economic integration which leave political questions to intergovernmental cooperation should also be acceptable to the EU. At the end of the day this could even be the solution to the Swiss conundrum.

Mads Andenas is a Professor at the University of Oslo and the former Director of the Centre of European Law, King’s College, London, and of the British Institute of international and Comparative Law. He is a door tenant at Brick Court Chambers, London.

Carl Baudenbacher was a Judge of the EFTA Court 1995-2018 and its President 2003-2017. He is now an independent arbitrator and consultant and a door tenant at Monckton Chambers, London.

ECJ confirms that Article 50 is unilaterally revocable by the United Kingdom

Maya Lester QC

The full court of the European Court of Justice has confirmed this morning that a Member State may revoke notification of its intention to withdraw from the European Union under Article 50 of the TEU unilaterally, without having to seek the unanimous agreement of the other Member States.  Case C-621/18 Wightman.

The ECJ’s expedited judgment states that the revocation of intention must be unequivocal and unconditional, decided on following a democratic process in accordance with national constitutional requirements, and must be communicated in writing to the European Council. Provided that occurs, a Member State retains its sovereign right to decide whether to withdraw from the EU. It may withdraw at any time until a withdrawal agreement has entered into force or, if no agreement has been reached, during the two-year period for negotiation (or any agreed extension).  In the mean time, the UK will stay in the EU on current terms.

The Court states that it would be inconsistent with the EU Treaties’ purpose of creating an “ever closer union among the peoples of Europe” to require unanimous approval of the Council, as the Commission and Council had proposed; that could force the withdrawal of a Member State which decides to revoke the notification of its intention through a democratic process, would transform a unilateral sovereign right into a conditional right, and would be incompatible with the principle that a Member State cannot be forced to leave the European Union against its will.

The Court also rejected the UK’s argument that the ECJ should not answer this question referred to it by the Scottish Court of Session because the question is hypothetical; as the ECJ judgment states, it is far from hypothetical and clarifies the options now open to MPs who will vote on ratification of the withdrawal agreement.

The judgment is here.

Maya Lester QC acts for the petitioner MPs, instructed by the Good Law Project.  Their arguments were accepted in full.

Court of Justice rules on the effect of Brexit on trade marks

Nicholas Saunders QC

The General Court and Court of Justice hear a number of trade mark appeals relating to decisions of the EU Intellectual Property Office. In Case C-340/17P Alcohol Countermeasure Systems v EU IPO, the appellant raised what it called a ‘public order’ ground of appeal from a decision of the General Court relating to the Brexit referendum.

The Appellant argued that a UK earlier trade mark right could no longer be relied upon to invalidate an EU trade mark as a result of the Article 50 notification given by the United Kingdom. It was argued that permitting such an invalidation would create unnecessary and disproportionate obstacles to unitary trade mark protection given that the United Kingdom will no longer be part of the EU unitary trade mark system. It was argued that the General Court violated the territoriality principle recognized by the 1883 Paris Convention and Article 17 of the Charter of Fundamental Rights of the European Union.

The United Kingdom intervened in the appeal and argued that this Brexit related ground of appeal was both inadmissible and unfounded.

The Court (Judges Jürimäe, Lycourgos, and Vajda) and AG Sharpston declined to rule on whether or not this ground of appeal was inadmissible, but went on to dismiss it on the merits. They held that there was no requirement for the Court to stay the proceedings before it as a result of the vote to leave the EU or the Article 50 notification, and that there was no retroactive effect of those measures.

The Court further held that a mere notification given by a Member State under Article 50 does not have the effect of suspending the application of EU law until the time of its actual withdrawl from the European Union. It followed that the ground of appeal was rejected.

The judgment is here.

Nicholas Saunders QC appeared for the United Kingdom instructed by the Department for Exiting the EU.