Our “Defend Brexit” case is mentioned in key Commons Debate
On Wednesday the former Conservative Leader, Iain
Duncan Smith, mentioned our case during the key debate on whether the Commons
was going to be able to vote to deny a ‘No Deal’ Brexit.
You can see the context
of the debate and his mention of the case on this link>>> https://youtu.be/DMZaDK2d4xk
(10 min
either side is left in for context
The point
at which he references us is at 11:47 in this video and at 15:06:12 in the
original https://parliamentlive.tv/Event/Index/a91e27e8-e525-4703-aaeb-036189f4caed )
If you watch Speaker Bercow’s reactions and
expressions and listen carefully to his reply you may feel, as I do, that he is
trying to be evasive and deceptive. My
guess is that while he had been advised that the Bill required “Queen’s
Consent” he had then decided to ignore that advice because it would mean that
the Government could refuse to give that “Consent” and the Bill which he
supported would then fail.
As Bercow is a prime example, of a MP who is
trying to use every trick in the book to pervent Brexit, that would come as no
surprise!
The question for Speaker Bercow was quite
simple and ‘binary’. Either the Royal
Prerogative was affected by the Bill (in which case “Queen’s Consent” was required)
or Royal Prerogative wasn’t affected (in which case no “Queen’s Consent” was required)!
Speaker Bercow ruled that there was no effect
on the Royal Prerogative which means that he ruled that the extensions to the
Article 50 Notice have not been agreed under the Royal Prerogative. We of course argued this point in our “Defend
Brexit” case but Lord Justice Hickinbottom ruled both that the Royal
Prerogative did apply and also that it was used and so he claimed that our case (and thus the
ruling of Speaker Bercow!) was “Totally Without Merit”!
Mr Justice Spencer on the other hand claimed
that our case was “Totally Without Merit” because he claimed that the extension was not under
the Royal Prerogative but instead was under the Statutory Instrument (passed
under the EU Withdrawal Act 2018) which changed the “Exit Day” from 29th
March!
So here we have it! EITHER Lord Justice
Hickinbottom is right and the extensions were made under Royal Prerogative and
so Speaker Bercow’s ruling is “Totally Without Merit”; OR Mr Justice Spencer is
right and the Brexit date was changed by statutory instrument and the Royal
Prerogative has been excluded; OR we are right and the Royal Prerogative has
been excluded and there was no Act of Parliament empowering an extension
and so we automatically left on the 29th March!
In a Learned Article on the LSE website Robert
Craig (who is a part-time lecturer in Public Law at LSE and is currently
pursuing a PhD at Bristol University considering the role of the Royal
Prerogative in the modern UK constitution) argues as follows:-
“… the reason why Queen’s Consent was not
needed for EUNoWA (EU Notification of Withdrawal Act 2017) was arguably because
the Supreme Court ruling meant that prerogative could not logically be affected
by conferring a power to notify under Article 50. It is by no means clear that
triggering the process and extending the process are legally equivalent just
because they are encompassed in the same Treaty Article. They are not even in
the same subsection. Notification was done under Article 50(2). Extensions are
done under Article 50(3).
Indeed this exact, and crucial, distinction
has very recently been explicitly confirmed by Lord Justice Hickinbottom in
rejecting the English Democrats’ judicial review application on 19 August 2019.
It must be noted that permission appeal decisions do not have the same status
as formal Court of Appeal judgments, but it is the most recent and best
evidence we have of the what the law is. Hickinbottom LJ drew a sharp legal
distinction between the Miller case situation of triggering the Article 50
process and the quite different legal scenario of extending the Article 50
process.
In short, international agreements (including
agreements as to extensions of time under article 50(3) are matters for the
Government in the exercise of prerogative powers and although such powers can
be displaced by Parliament this case is distinguishable from [Miller] because
Parliament, in its various interventions into the withdrawal process or
otherwise, has not arguably displaced those prerogative powers in respect of an
extension of time under article 50(3). Indeed, Parliament has consistently made
clear in the 2017 [EUNoWA] and 2018 Acts [European Union Withdrawal Act 2018],
and especially clearly in the European Union (Withdrawal) Act 2019, that timing
of withdrawal (including agreeing extensions to the withdrawal date under
article 50) was and is a matter for the Government.
Hickinbottom LJ must be right. This decision
can only be seen as highly persuasive that the legal basis for the power to
extend the Article 50 process is a matter of prerogative power.
Incidentally, this judgment is also relevant
to one possible reading of the Speaker’s ruling. EUNoWA conferred the power on
the Government to notify the EU of the intention of the UK to leave the EU. It
said nothing about extensions.
1. Power to notify withdrawal from the EU
The Prime Minister may notify, under Article
50(2) of the Treaty on European Union, the United Kingdom’s intention to
withdraw from the EU. 2.
On one reading of the Speaker’s ruling, it
might be thought that EUNoWA was being interpreted as conferring a general
statutory power on the government to notify and the power to extend. Even taken
in isolation, this would be a startling reading of EUNoWA because the wording
of EUNoWA says nothing about extensions – it only mentions notification.
However startling that may be as one possible reading, as a matter of law the
proposition that EUNoWA confers the power to extend is now untenable after the
decision of Hickinbottom LJ.”
(The original and full article can be found
here>>>
Proponents of the new Bill to stop No Deal
face a significant dilemma over Queen’s Consent
blogs.lse.ac.uk/Brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/)
In any case I respectfully suggest to both
Judges that Speaker Bercow’s ruling is either “Totally Without Merit” or that
they were both totally wrong to make such a ruling in our case as it clearly
had considerable merit!
