Fergus Randolph QC and Sarah Lee QC

Introduction.

The UK’s new trade remedies regime contained in the Taxation (Cross-border Trade) Act 2018 (“2018 Act”) has an economic interest test which is different from that of any other jurisdiction. Some jurisdictions, e.g. US and Australia, have chosen not to have one at all. The test is designed to ensure that only remedies that are in the UK’s economic interests taken as a whole will be adopted.

The test is similar in nature to the public interest test which applies when the European Commission adopts anti-dumping or anti-subsidy measures. However, it is also unique, having been specifically created for the UK’s purposes, taking into account not only the EU experience but also that of other jurisdictions. There is, as yet, no decision applying the test, nor any judicial consideration of it. The law and practice in this area will therefore develop in the next few years.

This post provides some comments on the test, which will be applied when the UK starts to adopt its own trade remedies at the end of the Brexit transition period on 31 December 2020. We outline some of the test’s features below, as well as explaining how and at what stages according to the Government’s published Guidance the test will be applied, and we discuss briefly how it compares with the EU public interest test.

Brexit Transition

 As explained in the previous blog post of 3 August 2020 (here), the UK’s current trade remedies activity is carried out by the Trade Remedies Investigations Directorate (“TRID”), on behalf of the Secretary of State. At the moment, the TRID is limited to carrying out investigations where the EU already has trade remedies in place affecting UK industries and where there is a desire to replicate them, or else where the EU has opened an investigation into such cases. The TRID’s functions will be transferred to the TRA (a non-departmental public body) when the UK assumes full competence from the EU for its trade remedies at the end of 2020. At that stage, the Trade Remedies Authority (“TRA”) will investigate and will make recommendations to the Secretary of State on the remedies to be adopted in individual cases.

A new inquiry was opened on 30 July 2020 by the House of Commons International Trade Committee to look at the status, powers, operation and extent of parliamentary scrutiny of the TRA under the 2018 Act, as well as its interaction with the Northern Ireland Protocol of the UK-EU Withdrawal Agreement. Evidence could be submitted to the Committee for consideration until 18 September 2020. The House of Lords also discussed the Trade Bill 2019-21 on 8 September 2020, and the House of Lords Committee stage will follow in due course at a date to be arranged.

The Test

The requirements of the economic interest test are set out in paragraph 25 of Schedule 4 (anti-dumping and anti-subsidy) and paragraph 23 of Schedule 5 (safeguarding) of the 2018 Act. These two tests are essentially the same except that there is a presumption in the case of anti-dumping and anti-subsidy measures that the test is met (see paragraph 25(3) and the consequential adjustments in paragraph 25(4)) unless the TRA, or the Secretary of State as the case may be, is satisfied that the application of the anti-dumping or anti-subsidy remedy is not in the economic interest of the UK. There is no such presumption in the case of safeguarding remedies. It follows that where the latter are concerned, it will be necessary for the TRID currently, and the TRA and Secretary of State subsequently, positively to conclude that it is in the economic interest of the United Kingdom to apply them.

Anti-dumping remedies are available where goods are imported into the UK and sold at a price below the sales prices in their domestic market, or below the cost of production, causing injury to a UK industry in the goods. They can take the form of a requirement to give a guarantee under Schedule 4, paragraph 15; applying an anti-dumping duty to goods Schedule 4, paragraphs 17-20; or accepting an undertaking: (Schedule 4, paragraph 23).  Anti-subsidy remedies apply where the production or export of goods is subsidised in a manner which causes injury to the relevant UK industry. The remedies available for anti-dumping are listed in Schedule 4, paragraph 25(5)(a), and those for anti-subsidy cases – which are the same – are listed in paragraph 25(5)(b).

Safeguarding remedies can be adopted where there is an unforeseen surge in the quantity of imports of particular goods, which causes serious injury to UK producers of those goods. In such cases, the UK authorities can impose a provisional or a definitive safeguarding duty on goods or make goods subject to a provisional tariff rate quota or a tariff rate quota: (see Schedule 5, paragraph 23(4)). This step usually affords temporary relief and gives time to producers to adapt to the new situation.

Paragraphs 25 of Schedule 4 and 23 of Schedule 5 specify those elements which the authorities must have regard to so far as relevant when applying the economic interest test. They also include a “catch-all” requirement to take account of such other matters as the authorities consider relevant. The factors listed specifically are: the injury caused to the relevant UK industry (or, in the case of safeguarding remedies, the serious injury caused to UK producers); the economic significance of the affected industries and of consumers in the UK; the likely impact of the remedies on those parties; the likely impact on particular geographic areas or particular groups in the UK; and the likely consequences for the competitive environment and for the structure of markets for goods in the UK.  The reference to particular groups and the investigations into the structure of markets are amplified in guidance which is referred to below.

Guidance on how the test is to be applied

The UK’s Guidance published by the Department for International Trade (“DIT”) on 28 October 2019, https://www.gov.uk/guidance/trade-remedies-investigations-directorate-trid-dumping-and-subsidisation-investigations-guidance (“2019 Guidance) provides details on how TRID will apply the economic interest test. Further Guidance on the TRID’s approach contains some additional information on the economic interest test and how the TRID will assess the factors it must consider when conducting the test, amongst other things, but it also refers the reader back to the 2019 Guidance, which contains a more detailed overview. This second Guidance, most recently updated on 7 September 2020, is found  at https://www.gov.uk/government/publications/the-uk-trade-remedies-investigations-process/how-we-apply-the-economic-interest-test.

The 2019 Guidance reiterates the point in the legislation referred to above, namely that there is a presumption in anti-dumping and anti-subsidy cases that the economic interest test is met, but no such presumption arises in a safeguard case, where the TRID must positively demonstrate that the application of the measure is in the economic interest of the UK.

The 2019 Guidance goes on to state that a measure is not in the economic interest of the UK if the negative impacts are disproportionate to the positive impacts and explains that the burden of proof lies on TRID to demonstrate that this is the case. It is not enough simply to show that the costs of a measure outweigh the benefits. Presumably, this burden of proof is relevant where the initial presumption has been that the economic interest test has been met, but further considerations have led the TRID to consider that there are serious negative impacts in taking a relevant measure.  Further, as individual circumstances are likely to require different approaches in each case, the TRID will avoid an overly prescriptive approach.

The ‘Detailed factors to consider’ section of the 2019 Guidance expands on the factors listed in the legislation, referring in more detail to the sorts of information that the TRID/TRA will expect to be provided with and will be required to take into account. For example, in assessing the economic significance of affected industries and consumers, they will assess employment information which may come through answers to questionnaires or ONS data, production volumes, UK market share (using, for example, data such as HMRC trade data), value and volumes of exports, numbers and size distribution of firms (which may be sought through questionnaires to consumer groups) and consumer information (which the authorities may need to seek actively).

As regards the benefits of removing injury caused to UK industry, the TRID/TRA will undertake a forward-looking consideration of the proposed measures and of their expected effects on all UK industry regardless of whether a particular producer is also an importer or has any associations with foreign exporters. There may be positive or negative impacts on other industries which might be affected by the proposed measures such as downstream user industries, upstream suppliers, distributors or importers. The magnitude of these impacts, along with any impacts on consumer welfare, is to be assessed.  Short-term welfare impacts may be modelled, although the 2019 Guidance states, without further elaboration, that this may not always be possible or appropriate, and qualitative factors will be looked at alongside quantitative effects. The qualitative assessments referred to in the 2019 Guidance include details of how the market currently functions and the degree of competition (e.g. market shares, degrees of market concentration, pricing behaviour and price competition, profitability and levels of innovation, ranges of goods and quality).

The likely impact on particular groups is described in the 2019 Guidance as being concerned with groups mainly affected who are “likely to be particular consumer groups, or possibly particular groups of employees”. The likely consequences of measures for the competitive environment and for the structure of the UK market, compared to if they are refused, merits a separate section in the 2019 Guidance, which explains how the TRID will assess competition in the market. The 2019 Guidance notes that the evidence will come primarily from questionnaire responses and submissions from interested parties.

Practicalities

The assessment as to whether measures are in the economic interest of the UK is to be made in new investigations, review, expiry or interim investigations if the authorities have made an affirmative determination (either provisional or final), which means that they consider that a remedy can otherwise be imposed. Where the TRID takes a preliminary decision, making a recommendation to the Secretary of State, the decision will always include findings on the test. Similarly, after the end of 2020, provisional and final determinations by the TRA which find dumping, subsidising or a surge of imports causing injury to a UK industry to have taken place, will be required to include a definitive assessment of the economic interest test.

Information will be sought at different stages of the investigation. Much of it will not be publicly available and the authorities will actively seek it out. Material may be included as part of the information requested from interested parties through the use of questionnaires addressed to them. Interested parties are those who satisfy the definitions in Regulation 2 of the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 and Regulation 2 of the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019. These are: a government of the relevant foreign country; an overseas exporter or importer of the goods concerned or the goods subject to review; a trade or business association of producers, overseas exporters or importers of the relevant goods; a producer of the like goods (or in the case of safeguards, of directly competitive goods) in the UK; or a trade or business association of UK producers of the like goods.

Questionnaires can be sent to others, including devolved administrations, downstream user industries, distributors, upstream supplier industries, consumer groups, local authorities and trade unions. Others may decide to supply information during the investigation on their own initiative. The authorities can also contact industry experts, consider relevant publications (including on production and price data) and review previous investigations on the industry. They can also refer to official data from HMRC, ONS or other sources.  Although these alternative sources are not specified in the 2019 Guidance, presumably they would have to be of an official and reliable nature.

The impact of the test

The matters to be examined in the economic interest test are set out in the paragraphs of the Schedules to the 2018 Act referred to above, and they are also elaborated on in the two guidance documents we have mentioned.  Combined, these descriptions provide an extensive list of information which could be relevant to an investigation, together with details on how that information may be obtained by the decision-making authorities. This enumeration of factors points to the need for a thorough and detailed examination being conducted, and, at the very least the possibility of remedies being refused in certain cases.

Interested parties, and others who wish to contribute, are able to provide detailed and sophisticated evidence for consideration under the test, if they choose to do so. There will be simplified questionnaires for those possibly without the time or resources to provide lengthy responses to enhance participation. It remains to be seen whether or not the test plays a very active role in practice, and whether those who might contribute information will continue to feel incentivised to do so as a decisions start to be made. This will no doubt be influenced by the effectiveness of past submissions and the rigour of the reviews conducted.

As we said in introduction, the EU has a Union interest test which requires the Commission to examine whether imposing anti-dumping or anti-subsidy measures is in the overall interest of the EU “based on an appreciation of al the various interests taken as a whole, including the interests of the domestic industry and users and consumers”: see Article 21(1) of the Anti-Dumping Regulation (2016/1036) and Article 31(1) of the Anti-Subsidy Regulation (2016/1037).

Those Articles set out procedures to be followed in order to ensure that those who wish to provide information can do so. There is no similar provision in the legislation relating to safeguards (see Regulations 2015/478 and 2015/755), although a recital to the first of these regulations refers to the fact that “it falls to the Commission to adopt the safeguard measures required by the interests of the Union. Those interests should be considered as a whole and should in particular encompass the interests of Union producers, users and consumers” (Recital 11). Article 10(1) of Regulation 2015/478 refers to the fact that certain measures may be taken where the Union’s interest so requires. Article 15 talks of safeguard measures being taken “in order to safeguard the interest of the Union”. Regulation 2015/755 has similar references in Articles 9 and 13.

Like the UK’s economic interest test, the EU’s test is also designed to balance the various concerns of interested parties, effectively requiring the Commission to consider whether or not taking the step of introducing remedies would be proportionate. It seems that it has usually been carried out after the Commission had already provisionally determined the existence of a dumping or subsidy injury.

There appear to have been very few decisions refusing remedies on grounds that they are not in the interests of the Union: see the recent comments of Advocate General Tanchev in Case C-461/18 P Changmao Biochemical Engineering Co v Distillerie Bonollo SpA at paragraph 99. Rather, the Commission may, for example, decide that measures should only be for a limited duration looking at the negative effects of measures on consumers and other Community producers if they were continued for a longer period: see e.g. Case T-459/07 Hangzhou v Council at paragraph 190.

The UK authorities will also assess whether they should vary any elements of a proposed measure in order successfully to minimize any negative effects whilst retaining its benefits. In other words the test is not simply a pass/fail test, but it allows for readjustment or fine-tuning of the measures being considered. The elements of the remedy that can be varied are the duration, the type of duty or the scope of the goods on which the measure is imposed.

The UK’s test appears to place a very strong emphasis on gathering evidence which may well occur throughout the period of the investigation, although provisional or final determinations will only set out the TRID/TRA’s conclusions in relation to the test when and if an affirmative view on conduct leading to injury has been taken. It is not clear currently whether the investigations and decision-making in relation to the test will nonetheless occur in tandem with the investigations on conduct and injury, or only once an affirmative decision on remedy has been reached. It is possible that there may be some differences in approach therefore between the UK and the EU’s practice.  Whether this is so will emerge as the TRID and TRA begin to make their decisions.

The UK’s test has the potential to play a strengthened and more prominent role than has been the case to date with the EU test. Further, the fact that the issues will be considered thoroughly can only enhance the decision-making, generating confidence in the system and in the remedies imposed.

As with EU Commission findings, there is an opportunity for judicial challenge of UK decisions. Unlike the EU situation, there is also the opportunity to ask the TRA to reconsider its decision first: see Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019, Regulations 10-15. The decisions that the authorities can be asked to reconsider include the refusal of requests to start an investigation, the rejection of an application following investigation and determinations on the amounts of anti-dumping or anti-subsidy duties. Where the request is unsuccessful (and also where the decision to be challenged is a decision of the Secretary of State), appeal lies to the Tax and Chancery Chamber of the UK’s Upper Tribunal, which will apply a judicial review rather than the “on the merits” test under consideration at the time the draft legislation was consulted on: see Regulations 16-18. The Upper Tribunal is likely to sit in a panel with some specialist members and be more inclined than the Administrative Court to hear oral evidence.

The case law of the Court of Justice shows the difficulties of mounting a successful challenge to a decision of the EU Commission on the public interest test. The assessment is regarded as an appraisal of complex economic situations, which it is not generally justiciable in the EU courts; see e.g. Case T132/01 Euroalliages at paragraphs 47-50; Hangzhou at paragraphs 181-3. It will be interesting to see how the Upper Tribunal approaches challenges to the assessments made under the UK economic interest test. This will no doubt be the subject of submissions and findings  as and when the Tribunal begins to apply judicial review principles in the particular circumstances of TRID, TRA or Secretary of State findings.

Conclusions

There is considerable scope under the UK’s new test for representations and evidence as to the effects of applying or not applying proposed remedies. In the case of anti-dumping and anti-subsidy remedies, it will be necessary to displace a presumption in order to persuade the relevant body not to impose a remedy. In the case of safeguarding remedies, the TRID or the TRA / Secretary of State will need positively to conclude that the test is met. It seems likely that the test will involve a careful and detailed substantive exercise with wide participation encouraged. It will be interesting to follow in due course the developing approaches of the TRID, the TRA, the Secretary of State and the Upper Tribunal to the new test as it starts to be applied.

Emily MacKenzie

As explained in a previous post, the entry into force on 31 January 2020 of the UK’s Withdrawal Agreement, following its ratification by both the UK and the EU, would not in and of itself have meant that the Withdrawal Agreement had effect in UK law. Rather, legislation was required to implement it.

This was done in the form of the European Union (Withdrawal Agreement) Act 2020 (“2020 Act”), which received royal assent on 23 January 2020.

The way that the 2020 Act implements the Withdrawal Agreement is complex.

For one thing, you can’t simply read the 2020 Act as a free-standing piece of legislation. For the most part, it amends an earlier Brexit statute, the European Union (Withdrawal) Act 2018 (“EUWA”). Whilst the EUWA as originally enacted made provision in anticipation of the UK leaving the EU on “exit day” (which was originally defined as 29 March 2019 in section 20(1), but which was subsequently altered by secondary legislation), this was before there was any treaty to implement. So it is the amendments introduced by the 2020 Act that give effect to the Withdrawal Agreement in domestic law. Therefore, you have to look both at a consolidated version of the EUWA[1] and at the other bits of the 2020 Act that stand alone to see how the Withdrawal Agreement has been implemented.

That issue aside, the new provisions are themselves complicated and the devil is in the detail. What follows is necessarily a very brief canter through the most important aspects.

If you only have a minute to spare, the basics are as follows. The Withdrawal Agreement provides for a “transition” (also called “implementation”) period that currently lasts until 31 December 2020. The Withdrawal Agreement basically provides for not much to change in that period: the vast majority of EU law will continue to apply in the UK. There are five key mechanisms by which the UK legislation seeks to implement both these transitional provisions in the Withdrawal Agreement and the rest of that Agreement:

1. The European Communities Act 1972 (“1972 Act”) is “saved” for the implementation period. This allows EU law to continue to flow into domestic law for the time being. However, what flows in is a snapshot of EU law as it stood on 31 January 2020 and not any subsequent changes. The transitional provisions of the Withdrawal Agreement also now form part of the EU law that flows in.
2. Domestic legislation that stems in some way from EU law (“EU-derived domestic legislation”) is also saved for the implementation period. This means that no domestic legislation falls simply because of withdrawal. But some “glosses” are applied, which aim to ensure that such legislation continues to function properly.
3. At the end of the implementation period, EU law becomes domestic law (subject to some fairly extensive exceptions) and will be known as “retained EU law”. This retention includes both EU-derived domestic legislation and “direct” EU law, as well as any rights, powers, liabilities, obligations, restrictions, remedies and procedures that came in via the 1972 Act.
4. A new “conduit” is created so that the provisions of the Withdrawal Agreement other than those addressing the implementation period can flow into UK law.
5. There are extensive powers to make secondary legislation to deal with all sorts of other issues, including to remedy any “deficiencies” in domestic law arising out of withdrawal and to implement other aspects of the Withdrawal Agreement, such as the provisions setting out citizens’ rights.

If you have a bit more time, the rest of this post expands on the above. Continue reading →

Emily MacKenzie

At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?

Once the Withdrawal Agreement had been agreed in negotiations in October 2019, both parties to it – i.e. the UK and the EU –  had to complete the proper processes for ratifying it in accordance with their constitutional requirements. So what did those comprise? Continue reading →

Alastair Sutton made presentations to the New Foreign Policy Society and to the Finnish-British Trade Association in Helsinki on 3 December 2019.  His speaking notes are here.

Maya Lester QC

The House of Commons Library has published a briefing paper on Brexit issues arising in UK and EU courts. It summarises the cases from Miller onwards on the Brexit process, and on the way Brexit might impact on a number of areas of EU law (eg extradition, trademarks, citizenship rights).

Maya Lester QC

The House of Commons Foreign Affairs Committee has published a report on UK sanctions policy entitled ‘Fragmented and incoherent: the UK’s sanctions policy”. europeansanctions.com (Maya Lester QC and Michael O’Kane) submitted written evidence to the inquiry here and Maya Lester QC’s oral evidence is here.  In the Committee’s view:

• The Government doesn’t have a clear strategy for a clear strategy for sanctions and little thought has gone into the UK’s priorities.  There should now be a major review and the UK should seize the opportunity to become a global leader in sanctions policy. The committee is “deeply concerned” that “so little high-level thought” appears to have gone into considering questions such as: what are the costs and benefits of divergence on key sanctions regimes, how can the UK make the most of its power in financial services, where do the UK’s interest most closely align with those of our key international partners, how we will influence their decision-making in future etc.  The review should consider overall strategic goals, policy planning and formation, implementation a and enforcement.
• Sanctions policy, implementation and enforcement are fragmented across government – there should be a Senior Responsible Officer accountable to the National Security Council.  The NSC should designate sanctions strategy to be an urgent priority, allocate resources accordingly, and begin an urgent review of UK sanctions strategy “consulting both internal Government stakeholders and external experts” and report to Parliament by the end of 2019.
• There should be a review of the effectiveness of OFSI before the end of 2019, as the Treasury Select Committee had recommended in March 2019, including the pros and cons of having a single body for design and implementation, and how OFSI can improve its engagement with private sector bodies on the front line of sanctions implementation.
• The Government must adopt a clear view on whether the UK can impose Magnitsky sanctions (for gross human rights violations) while still an EU member state before the end of June, and should publish a list of people prevented from entering the UK.
• The Foreign & Commonwealth Office should play a greater role in combatting money laundering, and should consider whether the EU’s test for ownership & control is sufficient in a Russia context.

As previously stated on the EU Sanctions blog, RUSI is currently engaged in a wide ranging and in-depth review of sanctions policy post Brexit, involving industry and legal experts, with sponsorship and input from Peters & Peters.

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

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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.