Life’s a ditch – and then you lie: the third extension of EU membership

Professor Steve Peers, University of Essex

This was the extension that was never meant to happen. Despite the Benn Act (discussed here), requiring the Prime Minister to request a three-month extension of EU membership if a withdrawal agreement was not approved by Parliament by October 19, the Prime Minister said he would “die in a ditch” before he did so. Spurred on by mysterious Downing Street sources, there was endless talk that the Benn Act was unconstitutional, full of loopholes, would be overridden by emergency powers, or violated EU law. Flexing his Hulky legal biceps, Boris Johnson would slay the puny Benn Act with one titanic sunlit spaff. 

Legal commentators queried these claims, but many political journalists (with honourable exceptions) ignored them: what did mere legal commentators know, compared to huge-brained political advisors without any legal background, fresh from an 11-0 Supreme Court defeat? Failing that, some seemed certain that an extension (needing unanimous consent of EU Member States) would be vetoed: the Poles would drown it in vodka; Orban would poison it with goulash; Macron would guillotine it with a single arrogant Gallic shrug.

And yet we have an extension. As Johnson’s hero might say: never in the course of British political history have so many political journalists swallowed so much rancid legal bullshit fed to them by so few dodgy political advisors.

EU law issues

The starting point for discussing extensions of membership is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure), as it did in this case. The Member State concerned has to agree to the text of the relevant European Council decision, which was regulated by UK law (see below). There’s no formal role for the European Parliament or national parliaments. Article 50(3) is silent on whether or not there can be multiple extensions, but obviously the EU assumes that this is legally possible.

The first extension decision (discussed here) provided for two variations for extending membership beyond the original Brexit Day of 29 March 2019, depending on whether the House of Commons approved the first version of the withdrawal agreement by that date. Since it did not do so, the first extension lasted until 12 April 2019. The second extension decision (discussed here) lasted until 31 October, provided that the UK held European Parliament elections in May (which it did), although it would have ended earlier if the UK had approved a withdrawal agreement (which it didn’t).

The third extension decision simply provides for what Parliament asked for: a three month extension. The only further detail in the main text is that it mentions earlier Brexit dates, in the event that the withdrawal agreement is ratified earlier.

The preamble to this decision also refers (recital 11) to the regular functioning of the EU, including an obligation of the UK to appoint a Commissioner. This recital also notes that EU law continues to apply more generally to the UK during an extension, and observes that the UK can withdraw its notice of intention to leave the EU. There’s also a general reminder of the EU law principle of ‘sincere cooperation’, and a specific version of that for a withdrawing Member State:

The European Council recalls the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State.  

All of this also appeared in the preamble to the second extension decision, except the reference to appointment of a Commissioner, which was not an imminent issue at that time.

Recital 9 in the preamble refers to facilitating ratification of the withdrawal agreement, but other extension decisions referred to this too. Recital 12 notes that appointments made by the UK cease on Brexit day, but this simply restates the consequences of withdrawal (as the second extension decision noted already). Recital 13 states that the withdrawal agreement cannot be reopened – but then the second extension decision said the same thing, and the EU nevertheless agreed to renegotiate. This recital also says, like the second extension decision, that this is not an opportunity to start negotiating the future relationship. It also provides, as with the previous extension, that ‘[a]ny unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation.’ One novel point, though: recital 8 notes that there’s discussion of a possible election in the UK.

There’s also a parallel declaration by the European Council, but it simply rehashes the preamble of the extension decision.

UK law

As noted above, the Benn Act required the Prime Minister to apply for an extension of three months if no withdrawal agreement was approved by October 19. He duly did so (albeit without signature, and in conjunction with other letters: the EU ignored this), after parliament voted to defer consideration of the revised withdrawal agreement (discussed here) in order to spend more time considering the proposed withdrawal agreement bill (discussed here). Although the Benn Act permits the Prime Minister to withdraw or amend the request if a withdrawal agreement is approved after October 19, the Speaker of the House of Commons ruled that a fresh attempt to vote on the withdrawal agreement was inadmissible, and Parliament later voted not to consider the bill over only a handful of days, making the October 31 deadline unfeasible – although the bill itself has passed second reading).

The Benn Act also required the Prime Minister to accept an extension decision once the EU adopted it, although if the date differed from three months then it was possible that Parliament could vote down the decision. To this end, the Prime Minister has accepted the EU decision. UK law is automatically updated to change the definition of ‘exit day’, according to another provision of the Act. (Update, October 30: the relevant secondary legislation to change 'exit day' has now been adopted.)

Due to doubts about the Prime Minister’s willingness to give effect to his obligations under the Act, two separate legal challenges were brought seeking its enforcement. In Scotland, the first instance court ruled that the challenge was premature, although on appeal the judges decided to hold the challenge in limbo to see if the Prime Minister would send an extension request if required, and subsequently to keep the challenge in limbo to see if he accepted an extension decision. In England, the High Court decided that the action was premature, and the Court of Appeal agreed. In separate proceedings, a challenge to bringing the revised withdrawal agreement before Parliament (on the grounds that the customs arrangements in the revised agreements breached previous legislation) was unsuccessful.

Comments

The reference to early termination dates if the withdrawal agreement is ratified simply states the law. As noted in the preamble to this extension decision (recital 10), this is inherent in the text of Article 50(3), as set out above, given that the agreement itself comes into force either on the first day of the month after both sides ratify it, or another date as specified in an extension decision. But there’s no other date set in this extension decision.

As for unilateral revocation of the notification of the intention to leave the EU unilaterally, this simply follows CJEU case law (see the Wightman judgment). Similarly, the point about the UK retaining obligations as a Member State reiterates a principle established in two earlier CJEU rulings (discussed here and here), and also noted in Wightman as regards extensions.

As for the appointment of a Commissioner, this is less urgent than it would have been since the new Commission is delayed taking office on the usual date (November 1) for unrelated reasons. I discussed the legal issues further in an earlier blog post on the Benn Act, but it’s striking that the third extension decision does not make appointment of a Commissioner a condition of granting the extension – unlike the second extension decision, which was dependent on the UK holding elections to the European Parliament.  Equally, while the preamble to the latest decision mentions the possibility of elections in the UK, the extension is not dependent upon them (although that prospect may have tipped the balance in convincing the French government to support a longer extension).

Ultimately it seems likely at time of writing that the UK’s relationship with the EU will be decided by a December election: a choice between the withdrawal agreement (the Conservative party), a no deal outcome (Brexit party), revocation of the notification (the Liberal Democrats), renegotiation followed by a referendum with an option to remain (Labour), or rejection of Brexit plus support for Scottish independence (the SNP), among other parties. A renegotiation and referendum would necessarily require a further extension; the other scenarios would not. So the next word falls to the public. We’ll see if this is decisive one way or the other.

Barnard & Peers: chapter 27

Photo credit: Indiana Watershed Initiative, via Wikicommons

Analysis 1 of the Revised Brexit Withdrawal Agreement: Overview

Professor Steve Peers, University of Essex

Introduction

It’s not certain, at time of writing, whether the Brexit withdrawal agreement will be approved or not. But the UK Parliament is about to vote again on the issue, following the recent agreement on a new version of the agreement – with a revised Protocol on the Irish border (for a full text of the revised withdrawal agreement following this change, see here) and a revised political declaration on the future relationship.  (There was already a minor amendment to the text agreed in April, after UK membership was extended for several months: the text of the agreement as it stood after that is here.) So this is an opportune time to update my previous overview of the first version of the withdrawal agreement. 

This blog post is a summary and explanation of the text for non-lawyers. It outlines the structure of the agreement and the main content of each part of it in turn. It does not aim to be exhaustive, but only to give a broad indication of what the revised agreement entails. I have also updated my blog posts on the transition period, dispute settlement, citizens’rights and the related politicaldeclaration.

Throughout the blog post, I’ve scattered the answers to ‘key questions’ which have been raised about what the revised withdrawal agreement does. Let’s start with this question, in light of the imminent vote on the withdrawal agreement:

Key question: What if the withdrawal agreement is not ratified?

If Parliament this week votes against ratifying the withdrawal agreement, and also votes against leaving the EU with no deal, then the provisions of the ‘Benn Act’ kick in, requiring the Prime Minister to request a three-month extension of EU membership. I discussed the workings of that Act in detail here. It’s possible that the EU refuses to extend membership, in which case the UK leaves with no deal on October 31, unless it decides to revoke its notification to leave the EU, which is possible unilaterally (as confirmed by the CJEU, and discussed here). There’s also a legal challenge to ratification at this point.

It’s also possible that parliament votes in favour of the withdrawal agreement, but runs out of time or votes against the bill to give effect to the withdrawal agreement. In that scenario there may be a fresh attempt at securing an extension of membership. If that fails, the UK again leaves with no deal on October 31, unless it decides to revoke the notification to leave. Note that there’s a proposed amendment to the government’s motion to approve the withdrawal agreement, which aims expressly to trigger the Benn Act to give more time to consider it.

   

The EU Commission has issued preparedness notices setting out its view on what would happen if the UK leaves the EU without a withdrawal agreement. The UK government has also issued its own no deal notices.

In order to address the possibility of a no deal outcome, the EU has also adopted legislation (a few amendments to this legislation will likely be adopted before October 31). This includes a law waiving visa requirements for short-term visits by UK citizens to the EU (for 90/180 days), which I discussed here. This will not address residence for longer periods, which will be subject to EU and national laws on non-EU citizens, which are more restrictive than EU free movement rules. (For more details of the law applicable to UK citizens visiting or staying in the EU after Brexit, see my discussion here. For more details of the position of UK citizens in the EU27 who might be able to claim long-term residence status, see discussion here; this point may be relevant even if the withdrawal agreement is ratified).

Another key issue is what exactly the imminent vote is about. It’s often claimed that a vote to approve the withdrawal agreement (or to leave with no deal) would ‘get Brexit done’, but is that the case?

Key question: Does the withdrawal agreement cover the long-term relationship between the UK and EU after Brexit?

Other than the provisions related to Northern Ireland (discussed further below), the withdrawal agreement governs only the details of leaving the EU, not the long-term relationship between the UK and EU. On that issue, alongside the text of the agreement, there was also a political declaration on the future UK/EU relationship (discussed here), which has now been revised as part of the new overall ‘deal’. This is the basis for negotiations that would take place after Brexit day. There would also be an issue of whether to extend the transition period due to expire at the end of 2020, as discussed below. So there will certainly be lots of Brexit discussion in future, even if the revised withdrawal agreement is approved.

Structure of the withdrawal agreement

Part One of the withdrawal agreement (Articles 1-8) sets out the “Common Provisions”. These deal with basic issues like definitions and territorial scope.

Part Two of the withdrawal agreement (Articles 9-39) deals with citizens’ rights, for those EU27 citizens in the UK, and UK citizens in the EU27, before the end of the transition period.

Part Three of the agreement sets out “separation provisions” (Articles 40-125), ie the exact details of phasing out the application of EU law in the EU at the end of the transition period.

Next, Part Four sets out the rules on the transition period (Articles 126-132), during which substantive EU law still applies to the EU for a period after Brexit day.

Part Five concerns the financial settlement (Articles 133-157).

Part Six sets out “Institutional and Final Provisions” (Articles 158-185). This includes rules on CJEU jurisdiction over EU27 citizens, dispute settlement, making further decisions to implement the agreement and rules on entry into force and dates of application.

In addition there are three Protocols to the agreement (these have the same legal force as the main treaty), on Irish border issues, UK bases in Cyprus, and Gibraltar.

Part One: Common Provisions

The main legal issue in Part one is the legal effect of EU law for the UK. The agreement must have the same legal effect for the UK as EU law does for EU Member States – including the principles of direct effect (meaning that the agreement as such can be enforced in national courts) and implicitly supremacy (meaning that national law which breaches the agreement must be disapplied by national courts). The UK must also pass an Act of Parliament to give effect to the Agreement; this is above and beyond the latest planned ‘meaningful vote’ on the revised agreement in Parliament.

All references to EU law require it to be interpreted in accordance with the normal rules of EU law. As for case law of the CJEU, references to EU law must be ‘interpreted in conformity with’ CJEU case law delivered before the end of the transition period. However, the rule is different for CJEU case law after the end of the transition period: in that case, the UK courts and authorities are only required to have ‘due regard’ for the case law. Note that none of this gives jurisdiction to the CJEU as such as regards the UK (although other parts of the Treaty give the Court some jurisdiction).

References to EU law include that law as amended until the end of the transition period, while references to Member States include the UK except when they refer to having voting or representation rights on EU bodies etc.

Part Two: Citizens’ rights

This part will mostly not apply until after the end of the transition period, since free movement of people will continue during that period. In principle, it provides that EU27 citizens in the UK before the end of that period (and UK citizens who are in the EU27 before the end of that period) will retain the same rights as those who arrived before Brexit day. To that end, it requires the two sides to keep applying EU free movement legislation to the people concerned, including legislation on social security coordination and the recognition of qualifications.

Some aspects of their legal status will change, however: the UK or EU27 Member States may require them to apply to prove their right to stay on the territory. The UK in particular plans to implement this, by means of a ‘settled status’ scheme. The risk is that some people will not have the documentation to prove their right to stay. Some categories of people currently covered by EU law (such as UK citizens returning to the UK with non-EU family members, or UK children in the sole care of one non-EU parent) will not be covered by the withdrawal agreement, so their position will be up to UK law. Similarly a number of EU27 citizens who would not qualify for status because they do not meet the ‘comprehensive sickness insurance’ requirement will be covered by a unilateral waiver of this rule by the UK, not the withdrawal agreement.

Also, the rules on family reunion in EU free movement law (which are more favourable than those under national law or EU law on non-EU families) will only apply where the family relationship existed before the end of the transition period, or the family member was legally resident in the same State then. If the citizens commit a criminal offence after the end of the transition period, national rules on expulsions will apply – and they may be more stringent than EU free movement rules on this issue.

The CJEU will have jurisdiction to rule on how the rules apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf.

For further details, see my annotation of a previous version of the citizens’ rights Part of the treaty, which is only a little different from the final version.

Key question: Does the withdrawal agreement end free movement of people?

Yes, free movement between the UK and EU (remember this applies both ways) stops at the end of the transition period, unless the UK and EU decide to sign a separate treaty as part of the future relationship extending free movement in the future. Currently the UK government opposes this idea. The protocol on Northern Ireland does not include free movement of people, but only the continuation of the UK/Ireland common travel area, which is more limited.

The withdrawal agreement also ends free movement between Member States for UK citizens already in the EU27, unless (again) a separate treaty as part of the future relationship addresses this issue. UK citizens in the EU27 might, however, be able to qualify for a status (long-term resident of the EU) allowing movement between Member States on a more restrictive basis, as discussed here.

Part Three: Separation provisions

This part tells out exactly how EU law ceases to apply at the end of the transition period, for a list of different issues. The biggest difficulties during negotiations were over geographical indications (ie, protection for those who call their product ‘Parma ham’) and what happens to cases pending before the CJEU on Brexit day.

Key question: Is the UK bound to EU law on geographical indications forever?

No, but it would be guaranteeing the continued protection of geographical indications for products which were protected at the end of the transition period.

More precisely, this part sets out rules for ending the application of EU law as regards thirteen issues: goods placed on the market; ongoing customs procedures; ongoing VAT and excise procedures; intellectual property protection; police and criminal law cooperation; cross-border civil litigation; personal data; public procurement; Euratom; judicial and administrative procedures; administrative cooperation; privileges and immunities; and other issues, such as the European Schools.

Key question: Does the CJEU have jurisdiction in the UK indefinitely?

No. Some have misread Article 89 of the withdrawal agreement, which refers to CJEU jurisdiction as regards cases coming from the UK, to mean that the UK will be covered by the Court’s jurisdiction forever. In fact, Article 89 simply confirms that the Court will have jurisdiction for cases sent from UK courts before the end of the transition period.

After that point, UK courts can send the CJEU cases only in limited contexts: for eight years after the transition period ends as regards EU27 citizens in the UK, or the protocols on Northern Ireland (in part) and Cyprus. Also, the Court has jurisdiction after this point to decide on how to interpret EU law if a dispute about the withdrawal agreement goes to arbitration (see Part Six).

Furthermore, the Commission can sue the UK in the CJEU for failure to implement EU law correctly for four years after the end of the transition period (though this can only concern alleged breaches which occurred as an EU Member State, or during the transition period Part of the agreement). Finally, the Commission can sue the UK to enforce State aid and competition decisions which were based on proceedings which started before the end of the transition period, but concluded afterward.  (I have discussed the CJEU provisions of the withdrawal agreement in more detail here).

It is possible that the future relationship will provide for continued EU/UK cooperation on some of these issues, in which case some of these separation clauses either will not come into practical effect at all, or will only apply in part. For instance, the EU and UK might end up agreeing in a new security treaty on another form of fast-track extradition instead of the European Arrest Warrant (EAW), and may therefore choose to agree different rules on transition from the EAW system to that new fast-track system.

Part Four: transition period 

This is a short part of the withdrawal agreement, yet it has the biggest effect: it keeps most substantive EU law in place in the UK until at least the end of 2020, with a possible extension.

The key elements of the transition period are that EU law (including new EU law) applies to the UK, except in areas covered by UK opt-outs (such as the single currency and justice and home affairs law; in the latter case, the UK retains part of its power to opt-in to new proposals on a case-by-case basis). There are special rules on external relations: for instance, the EU will notify non-EU countries that the UK should still be regarded as covered by EU free trade agreements, or other types of EU treaties between the EU and non-EU countries (the non-EU countries aren’t obliged to agree to this. For the text of the notification, see here). The current rules on the allocation of fisheries catches can’t be changed to benefit either the EU or UK fishing fleets.

However, the UK will not be represented on any EU institutions or bodies – including on the CJEU, which will continue to have its usual jurisdiction regarding the UK during the transition period. The UK will only be consulted on new EU measures as a special exception. In one area – foreign and defence policy – the UK can refuse to apply new EU measures if it has fundamental objections to them, and the withdrawal agreement foresees an early treaty between the EU and UK that will replace the transition period rules in this area. The UK will remain opted out from the rules on further defence cooperation between Member States (known as ‘PESCO’).

For a detailed annotation of the transition period clauses – except for the extension clause which was added later – see my earlier blog post.

Key question: Which EU laws does the transition period cover?

I’m often asked if the transition period covers a particular EU law like driving licences or aspects of the free movement of people, because readers can’t find a specific reference to that law in the withdrawal agreement. The simple answer is that the transition period covers all laws applying to the UK except a handful of exclusions, so the drafters didn’t bother with a list of those EU laws which are covered by it.

The EU laws which are not covered by the transition period are those about the European citizens’ initiative (on that process, see the case law discussed here) and also voting and standing for office in the European Parliament and local government. The UK (or its devolved legislatures) can, if it chooses, unilaterally continue to let EU27 citizens vote in local elections, and EU27 countries can choose to do the same for UK citizens. Also, as noted above, EU foreign and defence policy might not fully apply to the UK for the whole of the transition period.

This brings us to the potential extension of the transition period. It’s possible for the Joint Committee set up by the withdrawal agreement – which works by the mutual consent of the EU and UK – to decide by July 2020 if the transition period will be extended, for a single extension of up to one or two years.

In that case, the transition period rules continue to apply to the UK for that extended period, except there would have to be an ad hoc negotiation on how much the UK pays into the EU budget during the extended period.  There are also special rules on agricultural support.

Key question: Can the UK be forced to stay in the transition period indefinitely?

No. First of all, any extension of the transition period has to be agreed jointly, as noted already. So the UK could veto it. Secondly, any extension won’t be indefinite, since the withdrawal agreement sets a maximum extension time limit of two years.

On the other hand, the UK might theoretically end up applying the rules relating to Northern Ireland (discussed further below) indefinitely. However, these rules are more limited in scope than the transition period, as they concern only some EU laws (on equality law, external trade, customs, goods regulation, electricity, and State aids), and they only apply to Northern Ireland. In particular, the backstop does not concern the free movement of people or services, or contribution to the EU budget.

Part Five: financial settlement 

This part incorporates the earlier agreement that the UK takes part in the EU’s spending until the end of the current budget cycle (end 2020), which matches the end of the transition period (unless that period is extended). As noted above, though, if the transition period is extended, the UK and EU will negotiate a separate EU contribution to the EU budget. It also includes UK payments to the budget incurred because the EU often makes financial commitments in one year and then pays them out in later years (the system known as reste à liquider). Furthermore, it includes continued payments to ‘off-budget’ EU spending such as commitments to developing countries, until the current versions of those programmes expire. For a detailed discussion of the finances of the deal, see reports from the OBR, the National Audit Office and the Institute for Government.

Key question: Has the UK agreed to pay £39 billion in return for nothing?

No. First of all, some of that money has already been contributed during the period of extension of EU membership. Secondly, this begs the question: the EU regards the financial settlement as money which is payable in any event regardless of any future relationship, and took the view that the future relationship could not be formally negotiated before Brexit day anyway. Even on its own terms, the argument that ‘£39 billion is paid for nothing’ is wrong, since about half of of the money relates to the UK still applying substantive EU law during the transition period (see the OBR report), during which the UK still has its current access to EU goods and services markets (and vice versa).

Part Six: Institutional and Final Provisions

First of all, as noted above (in Part Two), the CJEU will have jurisdiction to rule on how the rules on citizens’ acquired rights apply to EU27 citizens in the UK, on the basis of requests from UK courts, for eight years after the transitional period ends. There will also be an independent monitoring body in the UK with power to bring court cases on their behalf. The two sides might agree to wind up the monitoring body at the end of the same time period.

Secondly, the CJEU will have jurisdiction, after the end of the transitional period, over the reference to EU law in the financial settlement part of the agreement, in references from national courts or as regards Commission infringement actions brought against the UK.

Next, there’s a Joint Committee set up to oversee and implement the agreement. It will meet at least once a year, and there are a number of sub-committees dealing with specific issues like Northern Ireland and citizens’ rights. It can take certain decisions to add to the agreement – such as an extension of the transition period – but for all these decisions the EU and UK must both agree.

There are detailed rules on dispute settlement, providing for arguments about the agreement to go to a panel of arbitrators. However, if the arbitrators have to decide an issue of EU law when settling the dispute, they will have to ask the CJEU to give a ruling. This is unavoidable, since CJEU case law insists that the EU and its Member States cannot be bound by an interpretation of EU law other than the CJEU’s (see, for instance, CJEU Opinion 1/92).

As noted above, the CJEU has jurisdiction over part of the Protocol on Northern Ireland, as well as the Protocol on bases in Cyprus.

Key question: Does the CJEU have jurisdiction over the entire agreement?

No. The Court has its usual jurisdiction under the transition period, and following that specific jurisdiction over EU27 citizens’ rights and EU law referred to in the financial settlement, as well as the protocols on Northern Ireland (in part) and bases in Cyprus. But the arbitrators can only refer disputes over EU law to it, not disputes over the entire agreement – although a lot of the agreement does refer to EU law.

Note that this part of the agreement differs a lot from the dispute settlement clauses as the Commission proposed them in March 2018 (see discussion here) – which included powers (tilted toward the EU) for both sides to impose sanctions on each other. The final version looks a lot more like traditional international dispute settlement, and is presumably a concession by the EU to the UK.

Finally, the last provisions of the main withdrawal agreement set out ‘boilerplate’ rules: confirming that the three Protocols and nine Annexes are binding; setting out the authentic languages of the text and the depositary; and setting the date of entry in force (which was amended in April 2019). The withdrawal agreement applies from that date, except the parts on citizens’ rights, separation provisions, dispute settlement and the three Protocols mostly apply from the end of the transition period (with specified exceptions which apply immediately). There’s also a commitment to negotiate on the future relationship, referring to the separate joint declaration on that issue, ‘with a view to’ agreeing those texts by the end of the transition period ‘to the extent possible’.

Protocol on Irish border issues

The changes to the Northern Ireland Protocol, as compared to the previous version of this Protocol, have been tracked here. Article 1 specifies that it does not affect the UK’s territorial integrity. But the provisions emphasising that the Protocol is meant to be temporary have been dropped, as have a link back to the possible extension of the transition period and a review clause. However, the possibility of replacing the Protocol by future UK/EU trade arrangements is maintained.

Next, Article 2 and 3 of the Protocol, which are unamended, refer to equality rights and the common travel area between the UK and Ireland (these issues were never controversial).

Key question: Does the common travel area continue the free movement of people between the UK and EU?

No. The absence of border checks makes it impossible to refuse entry to people at the border with Ireland, but that does not mean any EU27 citizens crossing that border (besides Irish citizens) have the right to reside or work in the UK (and vice versa for people crossing into Ireland, besides UK and EU citizens). There is UK legislation on liability for employers, landlords et al who hire or do business with people who are not authorised to work or reside that will be relevant here.

The revised Protocol then drops the previous UK-wide customs union backstop. This text had linked to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which meant some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

However, this had fallen short of the obligations of EU Member States; there had been limited obligations to keep up with new EU legislation and CJEU case law; and the arbitration rules (including CJEU jurisdiction) mostly had not applied to this ‘level playing field’. There’s a lot of EU law that wouldn’t have applied to the UK – most notably the free movement of persons, services and capital, and contributions to the EU budget. So while the backstop would still have committed the UK to a chunk of EU law on trade in goods, and in a limited way to some law in the ‘level playing field’ areas, the continued application of EU law would have been much less than under the rules on the transition period.

In place of the UK/EU customs union backstop, in the revised Protocol a new Article 4 first specifies that Northern Ireland is part of the UK’s customs territory for international trade purposes. A new Article 5 then, first of all, regulates trade between Great Britain and Northern Ireland. No customs duties are charged on goods moved from Great Britain to Northern Ireland, unless there is a risk that the goods may be sold in the EU. The further definition of what that means must be worked out by the Joint Committee by the end of the transition period. There is an exemption for personal property. As before, an Annex applies a long list of EU laws on customs, trade and goods regulation to Northern Ireland – although in the previous version some of these laws would have applied to the whole UK.  It’s now specified explicitly that customs duties charged for goods entering Northern Ireland are kept by the UK, not given to the EU.

The Protocol also retains provisions on the UK internal market, as well as lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, a single electricity market, and State aids. However, an Annex on agriculture and the environment has been dropped, and the VAT provisions have been amended to clarify that the UK keeps the revenue, can reduce VAT rates for Northern Ireland, and to give the Joint Committee powers to amend these rules. The vague reference to other North/South cooperation is retained.

The institutional provisions of the Protocol are retained, including the proviso that EU bodies, including the CJEU, have competence to apply or interpret the provisions of the Protocol that are specific to Northern Ireland.  Finally, a new provision on ‘consent’ specifies that the Northern Ireland Assembly can, under certain conditions, terminate the customs and other economic provisions of the Protocol. There’s also a unilateral UK declaration related to this. (The absence of a power to end the previous backstop unilaterally had been controversial).

Protocol on UK bases in Cyprus

This Protocol confirms that the bases in Cyprus remain within EU customs territory after Brexit, and EU regulations on goods, including agricultural and fisheries laws, still apply. EU law on excise taxes and VAT also continues to apply. Goods supplied to the staff on the bases are exempt from customs and taxes, and the UK and Cyprus may agree further rules on social security coordination. There are rules on checks at the border of the bases area, and a general obligation to cooperate to prevent fraud. Finally, the EU institutions, including the CJEU, have competence to apply and interpret EU law referred to in the Protocol.

Protocol on Gibraltar

First of all, this Protocol provides for the UK and Spain to cooperate on workers’ rights as regards the Spain/Gibraltar crossing. Next, it retains the status quo on access to aviation, unless the Joint Committee decides differently. It also contains general provisions on cooperation on tax and fraud, environmental protection and fishing, and police cooperation.

Assessment

The only changes in the revised withdrawal agreement as compared to the previous version relate to the ‘backstop’ (I’ll come back to changes to the political declaration in a further blog post). These changes replace the UK/EU customs union, with associated ‘level playing field’ rules on tax, the environment and labour law, which was theoretically temporary, with permanent provisions which relate to Northern Ireland only, moreover dropping the bulk of ‘level playing field’ rules. This entails new provisions on trade between Great Britain and Northern Ireland, as well as on the related Northern Ireland political process.

While the potential continued application of some EU laws to the UK as a whole has been dropped, most of the EU laws that would have continued to apply specifically to Northern Ireland have been retained, and the agreement now regulates aspects of internal trade and the internal political process. In short, the quid pro quo for limiting the ongoing relationship between the UK as a whole with the EU as compared to the previous withdrawal agreement is retaining, and even strengthening, the ongoing relationship between Northern Ireland and the EU.

The absence of a UK-wide backstop means that the end of the transition period will create a new ‘no deal’ cliff edge for the UK/EU relationship as regards trade – as there would no longer be a guarantee that the backstop provisions on trade in goods would apply in the event of any failure to agree a new broad trade relationship.  ‘Level playing field’ rules will not kick in either in this scenario. It’s therefore possible that the whole drama of a potential no deal outcome will simply be replayed at some point in the near future (except as regards Northern Ireland – unless the Assembly there wants to terminate the key provisions of the relevant Protocol, probably at a separate date).

The greater divergence from the UK and the EU provided for in this revised agreement also therefore has a cost of a potentially larger drop in reciprocal market access at the end of the transition period, which would be accompanied by a greater possibility for the UK to deregulate as regards tax, labour and environmental standards.

Those MPs who opposed the previous withdrawal agreement formed part of different groups, who opposed that agreement for various conflicting reasons: to obtain a ‘harder’ Brexit (fewer ties to the EU, more capacity to deregulate); a ‘softer’ Brexit (stronger ties to the EU, less capacity to deregulate); and to increase the chances of preventing Brexit completely. These three aims were necessarily in conflict: only one of the three groups could achieve its intended objective, and the other two groups would have gambled and lost, putting themselves further away than before from their ideal outcome.  As things stand, if the revised withdrawal agreement is approved, it’s the hard Brexiters who won their gamble, and the soft Brexiters and Remainers who made a serious tactical mistake.   

Barnard & Peers: chapter 27

Photo credit: Sky News

Third Time Lucky? The new law on extension of UK membership of the EU

Professor Steve Peers, University of Essex

Introduction

One of the many recent controversies about the Brexit process has been about the ‘Benn-Burt bill’, a new Act of Parliament that was fast-tracked through the legislative process earlier in September against the government’s wishes. It requires the Prime Minister to request a further extension of the UK’s EU membership; he has said that he will not do so. Some believe (wrongly) that the new law bans a ‘no deal’ exit from the EU.

To explain and analyse the new law, given the broad public interest, this blog post takes a question and answer format. At the end, there’s a longer discussion of the linked question of whether the UK would have to nominate a new European Commissioner in the event of an extension of EU membership.  

Q             Does the bill ban a no-deal outcome?

A             No. Its main purpose is to provide for the possibility of a further extension of EU membership. However, to avoid a no deal outcome it is necessary at some point – whether before Oct 31 or at a later date if membership is extended – to either ratify a withdrawal agreement or revoke the notification to leave the EU. The new law makes no mention of revoking that notification, and although it refers expressly to the possibility of parliament voting again on whether to accept a withdrawal agreement, it does not require Parliament to accept an agreement (or even to vote on whether to accept one).  It also provides for the possibility of parliament voting to accept no deal – although this seems unlikely given that Parliament passed this Act with the express intention of avoiding an imminent no deal outcome.  

Q             Does the new law block Brexit?

A             No.  As noted already, it provides expressly for the possibility of Parliament voting again on whether to accept a withdrawal agreement, or Parliament voting to accept no deal. Both of them are forms of Brexit. Also as noted already, it does not refer in any way to the revocation of the notification to leave. Nor does it refer to another referendum on whether to leave. Although some supporters of the bill support another referendum, the bill itself is silent on this. Extending EU membership to another date still leaves intact the possibility of leaving on that date with no deal (as the default position), or leaving at that date or earlier if a withdrawal agreement is ratified.

Q             Does Boris Johnson have to request an extension of EU membership?

A             In principle, yes (if he’s still the Prime Minister). He must request an extension to January 31 2020. However, there are exceptions. If Parliament votes for a withdrawal agreement or for a no deal no later than 19 October, then the obligation to request extension is never triggered. If Parliament votes for either before 30 October, then the obligation to request extension ceases to apply: the Prime Minister in that case ‘may modify or withdraw the request’.

It seems unlikely that Parliament would vote for no deal (given that the new law was backed by opponents of this outcome), but what about a withdrawal agreement? Here’s there’s an apparent loophole, as pointed out by Jolyon Maugham: it’s possible that Parliament could vote in principle to approve a withdrawal agreement, thus disabling the obligation to request an extension, but then not pass further measures in time for the agreement to be fully ratified by October 31. (See further Maugham’s analysis of the limited time available to pass the further measures).

According to the ‘Kinnock amendment’ added to the Act, the request has to be for the purpose of passing a bill to implement the withdrawal agreement, including provisions giving effect to inter-party talks, particularly possible amendments to the political declaration on the EU/UK future relationship (discussed here).  However, this is not reflected in the letter of request which the Prime Minister must send (the letter is a Schedule to the new law), and does not impact upon the separate obligation to accept (subject to an unrelated exception) an extension decision if the EU adopts one. There’s no explicit obligation to hold a vote on a withdrawal agreement, or to publish and/or vote on a bill to implement that agreement.

Q             Does the EU have to extend membership?

A             No. That’s up to the political discretion of the EU. It must act to adopt an extension decision with the unanimous vote of the 27 Member States’ heads of State and government (not including the UK). (I commented earlier on the legal issues of the first extension decision and the second extension decision.) It remains to be seen what the EU will do; remember that rumours about Member States vetoing extension proved to be unfounded in spring.  The European Commission and European Parliament have no formal role in the extension decision, although they can express a point of view that might influence national leaders.

Q             Does Boris Johnson have to accept an extension of EU membership, if the EU adopts one?

A             Yes, subject to a veto by Parliament. If the extension is to the date of January 31, the Prime Minister must accept it. Otherwise it’s possible for Parliament to veto it. It’s therefore false to claim, as some did, that the UK will be obliged to accept any extension decision, no matter what (see further my Prospect article on this point).

Some have argued that Johnson could veto the extension decision as a member of the European Council. This is false: Article 50(4) says that only the remaining Member States vote on this issue. The UK’s role comes at the stage of accepting that decision or not; and the new law specifically regulates that issue.

What if the EU sets conditions for extension? The CJEU has established in its Wightman judgment that the current status of a Member State cannot change during any extension; demanding that a Member State gives up its opt outs, etc would violate that principle.

There is a complicated question of the UK appointing a European Commissioner, which would conversely arguably be simply a matter of complying with its existing obligations as a Member State. I discuss this further below.

In the event that a modest extension goes ahead before the next election, this would shoot the fox of those arguing that the new law could mean the ‘imposition’ of a potentially indefinite or very lengthy extension, since it would be obvious that this had not taken place in practice.

Q             Would national law have to be changed to give effect to the extension of EU membership?

A             Yes.  The new law obliges this to take place automatically. The recent ‘commencement order’ setting the date of Brexit of October 31 would equally be delayed coming into force, as Professor Mark Elliott has explained.

Q             What else happens if an extension decision is adopted?

A             The UK will leave the EU on the new date without a deal, unless a further extension is granted, or it ratifies a withdrawal agreement, or it revokes the notification to leave the EU. It could also leave the EU beforehand if it ratifies a withdrawal agreement. Furthermore, some believe that the departure date can or must be brought forward to an earlier date if the UK requests it, but this interpretation is disputed. Note that, according to the Wightman judgment, the UK can revoke its notification to leave unilaterally, so cannot be subject to conditions like giving up opt-outs in return for staying.

The new law is silent on any of these further developments, including any further extension request. However, it does state that if an extension (presumably of any length) is granted, then the government must publish a report by 30 November 2019 on the progress of negotiations on the UK’s relationship with the EU. It must also table a motion in the Commons and the Lords about the report. If that motion is amended or rejected, the government must publish a further report by 10 January 2020 with a plan for further such negotiations. In any event, the government must make a further report on the progress of negotiations every 28 days starting on 7 February 2020 unless an agreement with the EU is reached or the House of Commons passes a resolution otherwise.

Politically, of course, developments in the period after an extension might be affected by a general election and/or a possible change of government.

Q             What if Boris Johnson refuses to comply with the law?

A             Politically, there might be challenges in Parliament. However, attempting to change the government in a short space of time might be legally and politically difficult. So might a further attempt by Parliament to pass another law circumventing the Prime Minister’s refusal to act. If the Supreme Court accepts that there are no judicial limits on the prorogation of Parliament, the government might advise the Queen to prorogue it again, which would cut off any attempts at legislation or confidence votes.

Legally, the possibility of non-compliance has already been brought before the Scottish courts, in a pending case.  It remains to be seen what remedies courts might be willing to order in order to enforce the law. Interim measures might be made in the event that the clock runs out before any appeals can be heard and/or decided.

Some have argued that the new law is illegal, because it infringes too much upon the executive’s power over international relations. If such an argument is raised in litigation, it would remain to be seen if a court accepts it; but the advocates of this view have not pointed to any precedents in which a court struck down an Act of Parliament on such grounds.

Q             Does the Act violate EU law?

A             No. This is an incredibly weak legal argument. Article 50 says nothing about a request for an extension, and therefore nothing about how a request must be made. It does refer to the withdrawing Member State accepting a request, but says nothing about how that process of acceptance takes place. It refers to national constitutional requirements determining whether a notification of leaving the EU is sent, but does not define what those requirements are. In the Shindler case (discussed here), the EU courts have said that it’s up to the UK’s legal and political system to define what these requirements are, and whether they have been met.

However, it’s possible that the EU might have legal or political doubts about considering a request for extension that is not from the Prime Minister in person. This remains to be seen.

Q             Does the UK have to appoint a European Commissioner?

A             It’s complicated. Article 17 TEU says that there shall be Commissioners equal to 2/3 of the number of Member States, but the European Council can change this number. It did so in 2013, with a decision that says that the number of Commissioners is equal to the number of Member States. The preamble refers to the Commission having ‘one national of each Member State’. Article 17 says that Commissioners must be appointed ‘on the basis of the suggestions made by Member States’.

At the time of the second extension, it was debated whether the UK would have to hold elections to the European Parliament. It was decided that it would, since the usual obligations of membership continued to apply. Logically the same applies to another extension of membership as regards the Commission.

There are several legal issues and possibilities though. EU law does not expressly state that a Member State must nominate a Commissioner, although arguably that is an implicit obligation. This could be enforced by legal proceedings, which could in principle be fast-tracked. The EU might be willing to approve an extension without a nomination (although that might be legally challenged), or to overlook the absence of a nomination if the extension is short. On previous occasions, the appointment of a new Commission has been delayed for a few months or weeks for various reasons. It is not clear whether or not the actions of a Commissioner lacking in numbers would be legal or not; but the new Commission could hold off from making proposals until the status of the UK was clearer. Most obviously, the European Council could amend the law so that only 27 Commissioners need to be appointed (that requires a unanimous vote, including the UK, although there can be extensions).

The notion of appointing a Commission with two Commissioners from another Member State might be challenged in light of the preamble to the decision on the number of Commissioners, which (as noted above) refers to one national of each Member State. Another notion of appointing a British Commissioner whom the government did not suggest might be legally problematic, due to the reference in the Treaty to making appointments based on ‘suggestions’ from Member States. Politically, either of those two outcomes might backfire politically on Remain advocates, for obvious reasons.

Analogies with non-replacement of retiring Commissioners on previous occasions don’t work, because the Treaties have an explicit procedure for non-replacement in those cases, and this is distinct from appointment of a new Commission.

It would remain to be seen how the EU might try to address these issues in the event that it wishes to adopt an extension decision and the UK is unwilling to suggest a nominee for the new Commission. Politically, the refusal to nominate a Commissioner might be intended to deter the EU from offering an extension decision in the first place. Time will tell whether it becomes an issue in practice.

Barnard & Peers: chapter 27

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Prorogation of Parliament: Conflicting judgments in England and Scotland

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The A-Z of Scots Law: From Avizandum to the Zany Antics of Boris Johnson

The recent, zany antics of Prime Minister Boris Johnson are being subject to intense interrogation by the Scottish legal system. The case of Cherry has seen the decision to prorogue the UK Parliament declared unlawful and the Prime Minister’s reported defiance to refuse to comply with the specific terms of the European Union (Withdrawal) (No.2) Act 2019 will be litigated upon in the Scottish courts next week. This new statute is designed to avoid a No-Deal Brexit on Halloween. It requires the Prime Minister to send a letter to the European Council requesting an extension to the Article 50 TEU negotiating period by the 19th of October 2019 if there is no deal in place (or no vote by parliament approving a no deal outcome) between the UK and EU by that date. 

These developments have exposed non-Scots lawyers and the general public in the UK to a whole new lexicon. In the Cherry case, they were treated to the terms ‘Avizandum’ and ‘stymie’ and in the prospective case forcing Boris Johnson to comply with the 2019 law, the general populace encountered the Latin term ‘nobile officium’.

The term ‘Avizandum’ is a Scots law term of art indicating that the court will take time to consider its judgment and deliver its reasoning at a later date. The word ‘stymie’ has been used in the case of Cherry to refer to the fact that proroguing Parliament will frustrate Parliament’s ability to scrutinise the work of the Executive while it is suspended. The etymology of ‘stymie’ is Scottish and refers to someone who can’t see very well and it was adopted as a golfing term to refer to a ball that prevents their opponent from having a clear shot at the hole. Thus, it is an apposite term for the actions of a Prime Minister attempting to deflect Parliament’s attention away from a No-Deal Brexit.

The ‘nobile officium’ is an ancient power of the supreme court of Scotland (the Court of Session) to offer an equitable remedy for pursuers when there is a perceived deficiency in the law.

This blog will discuss the significance of the unanimous decision of the Scottish judges in Cherry to declare the Prime Minister’s prorogation of Parliament unlawful, compare and contrast this with the English High Court’s decision to refuse to rule on the matter in Miller 2 and the potential ramifications of these cases for the Supreme Court hearing on Tuesday the 17th of September 2019. (For an overview of the prorogation case law with links, see here).

The original Cherry case (discussed here) was the first legal test of Boris Johnson’s decision to prorogue Parliament. At first instance, Lord Doherty roundly rejected the petitioner's pleas, holding that the decision to prorogue was an exercise of prerogative power (ie non-statutory) by the executive (the Government) that was non-justiciable (ie not amenable to review by a court), since it involved matters of high policy and political judgment. Thus, such matters were best left to be resolved in the political arena, primarily by the Prime Minister being held accountable for his actions by his equals in Parliament and subsequently by the electorate at the ballot box.

South of the border, Gina Miller, Shami Chakrabarti and Sir John Major instigated a similar claim against prorogation in the English High Court. At this level, both courts were at one on this point: the decision of the Prime Minister to prorogue was a classic exercise of prerogative power that was non-justiciable, since it involved matters of high policy and political judgment (see the Miller justifications at paras. 38, 42 and 60, the dicta of Lord Doherty in Cherry 1 at paras. 25 and 26 and the Scottish case law of MacCormcick v Lord Advocate 1953 SC 390, Gibson v Lord Advocate 1975 SC 136 and Lord Gray’s Motion 2000 SC (HL) 46). In their view, there were no legal standards from which to judge the legitimacy of the decision to prorogue (para. 51). The justifications for such an approach are plentiful and eminent. The long line of judicial precedent confirming such an approach stretch from de Freitas v Benny ([1976] AC 239), R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1975] 1 QB 811 the GCHQ case through to A v Secretary of State for the Home Department [2005] 1 AC 68 (aka the Belmarsh case) and the case of Shergill v Khaira [2014] UKSC 33.  In the Belmarsh case, Lord Bingham famously declared that:

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.”

Further, as I discussed last week, the dissenting judges in Miller 1 offered a stark warning to judges willing to embark on evaluations of matters involving high policy. Lord Reed expressed the view that:

“It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”

The English High Court heeded such warnings and tersely stated in the first paragraph of its judgment in Miller 2 that:

“It is not a matter for the courts.”

The non-justiciability argument appeared to have won the day north and south of the border. And further, to the west, beyond the Irish Sea, the High Court of Northern Ireland in Belfast decided not to rule on the prorogation issue at all, in a case brought by Raymond McCord.

Further, the English High Court also considered at the same time that, even if the contested order to prorogue had been reviewable, a number of legitimate and plausible reasons had been put forward by the Prime Minister that supplied sufficient reasoning for the prorogation (para. 51). Primarily, it is entirely normal and expected that a new Prime Minister would desire a Queen’s Speech in order to give legal effect to their policy priorities. Further, in the present instance, even with prorogation, there would still be time to debate and scrutinise Britain’s withdrawal from the EU; there would already be reduced Parliamentary time to scrutinize, given that the prorogation would fall in the middle of the traditional  party conference season when Parliament is recessed; and finally, the previous Parliamentary session had been one of the longest in living memory.

In the face of such insurmountable odds, it appeared that all was lost for the Remain Alliance. The activities of the Prime Minister were beyond legal reproach, even if not beyond political or ethical reproach. And yet...

The original decision of Lord Doherty in the Outer House of the Court of Session in Scotland was immediately appealed against. On Wednesday the 11th of September 2019, the three judges of the Inner House dropped their bombshell unanimous decision – the decision of the Prime Minister to prorogue Parliament was justiciable and upon subsequent forensic examination it had been found wanting.

The Scottish judges did not hold back, using rather forceful language to condemn the events laid before them. Lord Brodie found that the decision to prorogue was an ‘egregious case’ of improper behaviour (para. 91) falling well below the generally accepted standards of behaviour expected of public authorities and figures.

At first glance, the remarkable decision of the Scottish Supreme Court flies in the face of received legal orthodoxy. Proroguing Parliament is a classically political act, thus protected from legal challenge. So how do lawyers, north and south, square this circle?

The answer comes down to one of approach and the classification of the question that came before the courts in the three jurisdictions of the UK. As I discussed earlier, the question of the justiciability of royal prerogative powers is no longer a binary one, ever since the GCHQ case. Now, the test for justiciability rests on the nature of the prerogative power in question. The more legalistic in nature the power is, the easier it is for the courts to assume jurisdiction. Conversely, the more political or non-legal the power, the harder it is for the court to assume jurisdiction over that decision-making power. However, this sliding scale argument just outlined, does not help much in explaining the diametrically opposed judgments north and south of the border. Indeed, on this view, the English and Scottish courts should have been at one.

Legal clarification to this confusing situation may come, ironically some may say, from eminent Sassenach (used here in a non-pejorative sense) legal jurists, Professor Paul Craig and Professor Mark Elliott. Both Professor Craig and Elliott have cogently and eruditely explained the constitutional dilemmas borne out of Boris Johnson’s premiership. From their perspective, for the courts to absolve themselves from adjudicating upon a matter of such momentous proportions would be a gross dereliction of judicial duty (See Professor Craig’s view on this in his blog Prorogation: Three Assumptions of the 9th of September). The dangers to the UK constitution posed by the behaviour of Boris Johnson both necessitate and justify judicial involvement. This situation is such a singular affront to the democratic principles of the UK’s unwritten constitution that a judicial response is both right and necessary (See Professor Craig’s blog Prorogation: Constitutional Principle and Law, Fact and Causation, of the 31st of August).

To provide for no legal redress in this pivotal moment would create a legal vacuum and indirectly give succour and implicit legitimation to the decision of the Prime Minister (see the discussion of these matters by Alan Greene in his blog Miller 2, Non-justiciability and the Danger of Legal Black Holes, available here). For Professor Elliott, the sweeping, blanket refusal of the English High Court to entertain any possible review of the decision to prorogue is legally suspect on two main grounds. First, because the refusal to adjudicate goes against the liberalising tendency of the extant judicial precedence on non-justiciability, which is incrementally lessening the scope and reach of the non-justiciability barrier and, secondly, and in my opinion more forcefully, the judgment in Miller 2 misconstrued the legal question before it (see Professor Elliott’s blog Prorogation and justiciability: Some thoughts ahead of the Cherry/Miller (No. 2) case, available here).

Thus, the argument for intervention can be justified by looking at the questions before the UK courts from a slightly different perspective. The argument runs that the English High Court focussed, incorrectly, on the evaluation of the exercise of the discretionary power to prorogue. From this perspective, the English High Court fixated on the practical aspects of the decision to prorogue, asking itself questions about the justifications offered for the prorogation and the reasonableness of the length of time of the prorogation.  Therefore, the purpose of the judicial review appears to be one of substitution, that is the court is putting itself in the shoes of the Prime Minister and declaring whether it is reasonable for the Prime Minister to have asked for such a long period of prorogation. If that is so, then traditional legal orthodoxy kicks in: courts are not there to be a substitute for a bad decision maker, particularly when that decision is not made according to legal principles or considerations but rather, is a decision based on pure politics. Such decisions, rightly, cannot and should not be subject to supervision and substitution by the courts. The Inner House of the Court of Session chose another path for adjudication.

The Inner House, having reviewed the legal authorities, considered that the prerogative power to prorogue Parliament was justiciable (para. 31). The Court of Session approached the question from first principles of the UK constitution. The Court of Session asked a different question to that of the English High Court, namely does the legal power exist and if so, what are its boundaries? Questions about the scope of legal powers are classic judicial review questions that need resolution. Indeed, the fundamental grundnorm of the UK unwritten constitution is observance of the rule of law.

Lord Drummond Young, at para. 102, summed up this fundamental truth concisely when he said:

“The rule of law requires that any act of the executive, or any other public institution, must be liable to judicial scrutiny to ensure that it is within the scope of the legal power under which it is exercised.”

In applying this principle to the present case, the Scottish court was being asked if the exercise of the prerogative power to prorogue Parliament was being used for a purpose that was objectively outwith its scope (para. 104). This question could be answered by the Scottish court since the UK case-law evidenced a great deal of judicial flexibility in responding to these types of questions (see the case of Pham v Home Secretary [2015] 1 WLR 1591). In answer to this question, given the voluminous redacted information submitted to the court by Her Majesty’s Government, the answer must be yes: the Prime Minister had prorogued Parliament for an improper purpose, namely to stymie Parliamentary debate, oversight and scrutiny of the UK’s withdrawal from the European Union.

Regardless of their view on the justiciability and merits or otherwise of the case, the seriousness of the case, according to the Scottish judges, absolutely required a robust judicial response in any case. The actions of the Prime Minister had been an egregious case where there had been a clear failure to comply with generally accepted standards of behaviour of a public authority (see para. 91). The exceptional seriousness of the case would require the court to act.

It can be argued that the Scottish judges were not engaged in usurping power from Parliament. On the contrary, the Scottish judges, rather than emasculating Parliament, were, by delivering judgment, empowering Parliament.

The finding of the Inner House means that the decision to prorogue Parliament was illegal and as such the Order in Council is of no legal effect, that is the decision is void ab initio. However, given the constitutional significance of the case and its brethren cases in Belfast and London, the Lord President declined to enforce the judgment at once, given that all these judgments were the subject of an appeal to the Supreme Court of the UK. If the Supreme Court were to ultimately follow the dicta of the Inner House, then the judgment in Cherry 2 would be fully enforced and applied at that date.

The outcome of the conjoined appeals at the Supreme Court of the UK on Tuesday the 17th of September is far from certain. The Scottish judgment is a constitutional first: the first time a serving Prime Minister has been found guilty of acting illegally in relation to the proroguing of Parliament.

What is certain is that the 11 justices of the Supreme Court will once again make UK constitutional history after the hearing on Tuesday week.

Barnard & Peers: chapter 27

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