authorIn a recent Times article, Lord Pannick QC – leading Counsel in the Miller litigation – argues that if a Prime Minister were to advise HMQ to prorogue parliament to avoid a No Deal exit, an application could be made to the courts to determine the lawfulness of such advice. Sir John Major said on the Today programme on 10 July that he would personally bring a judicial review of any decision by the Prime Minister to advise prorogation.

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

While Lord Pannick’s argument is characteristically attractively presented, there are some significant difficulties with it. Of course, it must be borne in mind that a brief 800 word article in a newspaper cannot do justice to the full argument.

Space precludes detailed consideration of issues of timing but suffice to say that Miller was incredibly expedited, including leapfrogging the Court of Appeal, but it still took six months.

A caveat on the potential use of prerogatives in the Brexit context

I have previously defended the theoretical possibility of the use of Royal Assent and Queen’s Consent in some extreme circumstances if there were unprecedented moves by a shadow executive undermining the procedures of the House of Commons. I have ultimately justified these responses because the remedy of a vote of no confidence remains available.

My view on prorogation is considerably more conflicted, precisely because any overtly political prorogation to avoid a vote of no confidence contradicts what I view as the central principle of the political constitution which is the doctrine of confidence. Parliament represents a dialectical relationship between the two balancing forces of executive and legislature, both of which we choose in our bifurcated vote at general elections. When we vote in the UK, we choose a local MP, but in reality we also vote on a manifesto and on a slate of those seeking executive office.

Justiciability

The most serious problem facing any potential litigation relates to justiciability. In his article, Lord Pannick lightly touches on case law relating to passports, ex gratia payments and other successful applications to the court for review of the exercise of prerogative power. Unfortunately, these examples fall on one side of a clear red line for the courts in terms of the kinds of prerogative that they are normally prepared even to consider.

In GCHQ, Lord Roskill famously listed a series of prerogatives that he held would remain outside the court’s purview even after the test set out by the court for judicial review transitioned from the source of the power to the subject matter of that power. Technically the list is obiter dicta, of course.

The Roskill list includes ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ (p418). The prorogation of parliament falls squarely within the category of prerogatives set out in this list. This is particularly true in this case because Lord Roskill states that it is prerogatives ‘relating to’ any of the above list that are in this category – this obviously includes prorogation which is historically connected to dissolution.

It is also worth noting that in the later case of Everett, a ‘high policy’ test for the prerogatives on the list was instituted, and that test has never been doubted. Indeed, in Abbasi, Lord Phillips MR expressly endorsed the ‘high policy’ test in considering the actions of the government under the foreign affairs prerogative.

Lord Phillips also used the phrase ‘forbidden areas including decisions affecting foreign policy’ ([106]) which also underscores the unlikelihood of any judicial intervention in matters as controversial and politically explosive as a political decision to prorogue parliament to achieve a No Deal exit. It is perhaps also worth mentioning that, in this particular case, a decision to prorogue would have direct and dramatic effects on foreign policy.

It is suggested therefore that prorogation would therefore fall well within the ‘high policy’ test given the intense political controversy that would surround such an action. It is therefore extremely challenging to see how such advice could be justiciable on any orthodox reading of long established case law. This rule arguably rests, in large part, on a point blank refusal to be drawn into controversial political matters. This deeply wise judicial instinct is strongly to be commended.

Argument from Miller?

It might be thought that the justiciability argument must be tempered by the fact that in Miller itself, a high policy prerogative (treaty power) was considered to be justiciable – indeed the justiciability argument was not even raised at the Supreme Court stage having been resoundingly rejected by the High Court. This would be to miss a crucial distinction between Miller and a potential prorogation. The courts have never held that a prerogative is non-justiciable when it is used in a way that intersects with a statute. In those circumstances, a completely different test is applied.

If statute overlaps with the prerogative, it goes into abeyance. Where a statute does not overlap, the test is whether the exercise of the relevant prerogative would frustrate the intention of parliament in any Act (Miller [51]). In such situations, the court is not concerned in any way with whether the nature of the prerogative concerns ‘high policy’. This is for the simple reason that statute trumps prerogative and it is the duty of the courts to see that the will of parliament as expressed in statute prevails. That is why the justiciability of the treaty prerogative was not an issue in Miller, despite it being on Roskill’s list.

Parliamentary Sovereignty means the will of parliament as expressed in statute

It is trite law that the will of parliament can only be understood through Acts of Parliament as a matter of law. Mere motions will not suffice. If they had, the motion in the House of Commons in December 2016, calling for notification under Article 50 to be sent, would have disposed of the Miller litigation.

Lord Pannick’s appeal, therefore, to the generic idea of ‘parliamentary sovereignty’ must therefore be approached with some caution. Parliamentary sovereignty means nothing more, and nothing less, than that each and every Act of Parliament that is on the Parliamentary Roll is supreme over any other law or legal power. In other words, whatever the Crown-in-Parliament formally enacts is binding law, save that Parliament cannot bind its successors.

It follows that if Lord Pannick could identify a particular provision of a statute that would be frustrated then the objections based on justiciability would immediately dissipate. Unfortunately, it is difficult to identify any such statutory provision. Instead, the much more nebulous language of ‘evading parliament’ is deployed. This leaves his argument looking somewhat thin.

The problem is that isolating a sound legal argument from ’evading parliament’ is difficult, whatever the constitutional and political arguments. This is not least because there is no particular statute to which reference could be made. Evading political scrutiny and debate is not a legal argument.

It seems unlikely that the courts would declare something unlawful based on it frustrating a provision of a non-existent Act that the courts would be predicting parliament might pass at some unknown time in the future. That would be to extend the principle in Fire Brigades Union by some distance, to put it mildly.

Lord Pannick goes on to claim that one aspect of the claim would be that, in his view, parliament has ‘made clear its wish to prevent a no-deal Brexit’. This particular claim is hard to follow. Nowhere in EUNoWA, EUWA or elsewhere has parliament made clear in legislation that in the event of there being no deal agreed with the EU27, the government is legally required to take steps to prevent the UK exiting the EU on  that basis. It is true that a number of motions of the House of Commons have expressed that sentiment or similar but that is entirely another matter and, strictly speaking, irrelevant as a matter of law.

It could be argued that the silence in relevant statutes on any legal steps to be taken in the extensive legislation that has been passed since the referendum simply reflects the fact that few people expected that No Deal could actually happen. This is a reasonable stance. Nevertheless, it remains the case that the Article 50 process is in fact inexorable and (leaving aside revocation) remains outside the direct control of parliament, particularly if, say, the EU27 decided not to grant another extension.

It is also the case that there are no provisions altering the legal default outcome (for example by mandating a revocation) in the event that there is no agreement with the EU27 regarding the orderly withdrawal of the UK from the EU. The only possible exception might be the Cooper-Letwin Act which mandated the Prime Minister to seek an extension from the EU27 (I am grateful to Gavin Phillipson for suggesting this point in conversation).

It might be argued that this represents evidence that the will of parliament is that a delay is preferable to exiting without a deal. The problem with this argument is that Cooper I was very specific in terms of how and when it applied and its provisions are now spent. Really, the Act needed to have made further provision for the legal consequences in the event of No Deal. Attempting to read anything more into that Act seems implausible.

However alluring is the argument that the courts could step in, it is difficult to see how the exercise of the prerogative of prorogation in this case could be said to conflict with any particular provision of any statute.

Breaking new legal ground 

Given the strength of the judicial dicta against Lord Pannick’s position, it would require an innovative and bold approach by the judiciary for any case to succeed. The courts would have to construct a novel rule that the mere possibility of Parliament wishing to pass some future legislation means that a purely political prorogation would be unlawful. This possibility cannot be ruled out but it would drive a coach and horses through long standing case law on justiciability, with unknown future effects.

Political controversy

The idea of the courts ensuring that parliament can do its core job of considering Brexit throughout the Autumn is undeniably attractive. It is suggested, however, that the courts would be rightly reluctant to intervene in such an intensely controversial political question, especially without the protection of an existing Act of Parliament that intersects directly with the relevant prerogative. To do so would be to draw the judiciary into the centre of a political firestorm. However politically controversial a prorogation might be, judicial intervention would only make the situation worse. Two wrongs do not make a right.

In those circumstances, reliance must be placed on the relevant parties being persuaded that advising HMQ to prorogue would be deeply politically and constitutionally inappropriate, rather than illegal or ultra vires.

Conclusion

This post has sought to address the possibility of litigation to challenge the lawfulness of using the prorogation prerogative politically. The proposal suffers from serious flaws, not least lack of time. It has been argued that the use of the prerogative of prorogation is not justiciable as ‘high policy’ in a ‘forbidden area’.

It has also been suggested that the argument that parliamentary sovereignty would be frustrated by prorogation is flawed because there is no particular statutory provision that would be frustrated by prorogation.

Furthermore, it seems highly unlikely that the courts would be drawn into what remains, in a political constitution, a matter of purest politics that should be dealt with by elected politicians, when parliament reconvenes, or at the ballot box.

The author would like to thank Richard Ekins, Sir Stephen Laws QC, Gavin Phillipson, Meg Russell, Catherine Haddon, Tom Poole and Colm O’Cinneide for their helpful comments and suggestions. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Judicial Review of Advice to Prorogue Parliament’, U.K. Const. L. Blog (12th Jul. 2019) (available at https://ukconstitutionallaw.org/))

GCHQ

 

In recent days certain government backbenchers have proposed a new avenue to deliver a “no deal” Brexit. As Sir Edward Leigh put it:

 

“There are only two choices given the EU won’t change the deal and there’s no chance of parliament passing it. One is cancel Brexit: an intolerable denial of democracy. The other is leave without a deal on WTO terms on 31 October. But MPs, assisted by the Speaker, will block this. Solution: End this failed session immediately within a few hours of a new government and prorogue Parliament. Leave the EU on 31 October…”

While several Conservative leadership candidates have disavowed this course of action, Dominic Raab, one of the front runners, appears to have declined the opportunity to do so. It further appears that Andrea Leadsom, whilst Leader of the Commons, explored the implications of taking a similar course of action. The Speaker, John Bercow, has stated that he will not permit Parliament to be prorogued in such a way. Prorogation, however, is within the gift of the Monarch, not the Speaker. It is not clear what would happen if the Queen prorogued Parliament and the Speaker refused to be prorogued but it is certain that it would create a constitutional crisis.

Could such a crisis be worked out in the courts? The power to prorogue Parliament falls within the royal prerogative. This power was expressly preserved by section 6(1) of the Fixed Term Parliaments Act 2011. As established in Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 6 (“the GCHQ Case”), The prerogative is, with certain exceptions, subject to judicial review. As established in Bancoult (No. 2) [2008] UKHL 61, the same principles generally apply to a review of prerogative power as apply to the review of other government powers. Certain prerogative powers are, however, excluded from review. It is generally understood that these include matters of pure international law, the Royal Assent, and the use of “personal” prerogative powers. This third class includes the power to prorogue Parliament.

Does this make the “Brexit through prorogation” plan immune from judicial review? Not necessarily. Two avenues may be successful. First, as they did in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (pdf), the courts may determine the scope of the prerogative power even where that power is one of those excluded from the traditional principles of judicial review. The courts may determine that to prorogue Parliament so as to prevent Parliament from exercising control over Brexit is outside the scope of the prerogative power (the substantive reasons for this are set out below). Further, it was stated by the majority in Miller that the court could not accept that ‘a major change to UK constitutional arrangements can be achieved by ministers alone’. Parliament should be consulted on significant constitutional changes. Given that, by effect of Article 50, the UK will automatically leave the EU on 31 October, the government’s failure to stop it will create a substantial constitutional change by default. I do not think this argument is as strong in this case as it was in Miller, however, because it begs the obvious response that Parliament sanctioned the serving of a notice under Article 50 in the European Union (Notification of Withdrawal) Act 2017 in the full knowledge of the effect of Article 50. There has not been any subsequent Act of Parliament suggesting that the position has changed on that point.

Second, there is nothing to indicate that the Queen will exercise her personal prerogative to prorogue Parliament otherwise than on the advice of the Prime Minister. I would argue that the decision to advise the Queen to prorogue Parliament is separate from the Queen’s decision to do so. The latter could (constitutionally speaking) be made independently of the former. The courts may, therefore, entertain a judicial review of the Prime Minister’s decision to advise the Queen to prorogue Parliament without trespassing on the personal prerogative of the Monarch herself. Given the analysis below, the courts will have good reason to find such a constitutional fix.

What of the substantive grounds for review? It is almost certainly beyond the power of the Prime Minster to advise the Queen to prorogue Parliament in order to frustrate the will of that same Parliament. It is also arguably outside the scope of the Queen’s prerogative power to exercise it so as to frustrate the will of Parliament. As the House of Lords held in R (Fire Brigades Union et al) v Secretary of State for the Home Department [1995] 2 A.C. 513 (albeit in the case of a clear statutory steer from parliament), the executive is not permitted to use prerogative powers to frustrate the will of Parliament. Both Houses of Parliament have expressed the view that a “no deal” Brexit should not be permitted. Parliament has exercised control over the process of Brexit so as to ensure a “no deal” Brexit is avoided. It will likely seek to do so again in October. The act of advising the Queen to prorogue Parliament before (and across) 31 October would have the effect of excluding Parliament from the Brexit process.

Parliament’s democratic mandate is fundamental to the UK constitution. In Sir Jeffrey Jowell QC’s words, Parliamentary sovereignty “is the stone upon which our Constitution is not writ”. The government holds office because it is able to command a majority in the House of Commons. The Commons hold office because they hold a mandate from those they represent. Legitimacy flows upwards from the electorate. As Lord Hope of Craighead put it in Jackson v Attorney General [2005] UKHL 56 (pdf) at 126:

“It must never be forgotten that this rule [of recognition] … depends upon the legislature maintaining the trust of the electorate. In a democracy the need of the elected members to maintain this trust is a vitally important safeguard. The principle of parliamentary sovereignty… is built upon the assumption that Parliament represents the people whom it exists to serve.”

In the light of this, it seems absurd to suggest that the Prime Minister has the power to advise the Queen to take an action that would exclude Parliament from expressing its view (and potentially exercising its power to control the actions of the government) in relation to the most significant constitutional matter in a generation. Similarly, given the democratic basis of the constitution, and parliament’s fundamental position in that, it seems very difficult to argue that the Queen’s prerogative power extends to proroguing Parliament so as to silence Parliament in relation to a major constitutional issue.

It may be argued that, although Parliament has, in the past, indicated that it opposes a “no deal” Brexit, it is not for the courts to read such an intention into the future. In the European Union (Withdrawal) (No. 5) Act 2019 Parliament, in effect, ordered the Prime Minister to seek an extension to the Article 50 TFEU process so as to avoid a “no deal” Brexit on 12 April. Similarly, various motions all related to 29 March or 12 April. The order in the 2019 Act only mandated a single action.  It might be argued that, while Parliament ruled out a “no deal” Brexit in April, it has not done so indefinitely. The statements of various MPs do not carry the same weight as an Act of Parliament. Indeed, as Maddy Thimont Jack has pointed out, at the Institute for Government, it is not clear that Parliament will be able to take the same approach to a “no deal” Brexit in October as it took in March and April.

Such an argument, however, seems rather semantic. The core of the issue is the exclusion of Parliament from a matter of historic constitutional importance. The harm at which a review would take aim is not simply the frustration of Parliament’s will, but the fact that Parliament will be prevented from establishing a position at all.

The act of advising the Queen to prorogue Parliament would also, likely, be reviewable on the “bad faith” ground. The Prime Minister has a duty to exercise her powers in good faith (see R(C) v Secretary of State for Health [2000] 1 FCR 471 at 23). Advising the Queen to prorogue Parliament so to prevent it from frustrating the Prime Minister’s agenda cannot possibly be considered a good faith exercise of the power. There may be other grounds for review, but these seem to be the leading contenders.

A review such as this would undoubtedly push the boundaries of constitutional law. It must tease out numerous technical and principle issues (I have not begun to discuss the proper remedy, for example). It would, however, be an appropriate response to an extraordinary constitutional moment. It is, indeed, in the heat of such moments that the UK’s evolutionary constitution is forged.

Sam Fowles is a Barrister at Cornerstone Barristers and a Fellow at the Foreign Policy Centre.

(Suggested citation: S. Fowles, ‘Can the Prime Minister Prorogue Parliament to Deliver a No Deal Brexit?’, U.K. Const. L. Blog (10th Jun. 2019) (available at https://ukconstitutionallaw.org/))

Brexit Jigsaw

On 24 May, Prime Minister Theresa May announced her intention to resign as Prime Minister.  She will stand down as leader of the Conservative Party on 7 June (after President Trump’s visit and the D-Day commemorations), and as Prime Minister as soon as the Conservative Party has chosen a successor.  Her tenure in office had been looking increasingly challenged for some time.  The immediate trigger for her resignation was her final attempt to get her Brexit deal done, which included the offer of the possibility of a further referendum.  This proved more than her Party could accept, and the Party would have forced her out of office had she not agreed to resign.

The previous day, 23 May, the UK electorate voted in the European Parliament elections.  The results were announced on 26 May after polling had closed across the EU.  Turnout was slightly up on immediate previous EP elections, but at 37% below the EU average and well below both UK General Election and 2016 Referendum turnout.  The results were:

Share of vote EP seats
Brexit Party 31.6% 29
Liberal Democrats 20.3% 16
Labour 14.1% 10
Green 12.1% 7
Conservative 9.1% 4
SNP 3.6% 3
Change UK 3.4% 0
UKIP 3.3% 0
Others 2.5% Plaid Cymru 1,
NI Parties 3

This represents a notable success for Nigel Farage’s Brexit Party (which was only publicly launched on 12 April), a very bad result for Labour and a catastrophe for the Conservatives (their worst result in modern democratic history).  It also represented a very strong performance for the overtly anti-Brexit parties (Lib Dems, Greens, and Change UK[1], between them secured over 35% of the vote).  The immediate conclusion is that both the main parties have been punished by their electorate specifically for their indecisive stance on Brexit, and the division between those who favour a “pure Brexit” (no deal Brexit unless the EU agrees to a much better deal), and those who favour a further referendum in the hope of reversing the Brexit decision, or indeed an immediate Parliamentary revocation of Article 50, has sharpened in a country that remains deeply divided.  But neither “no deal” nor “people’s vote” secured anything close to a clear majority.  Both Conservatives and Labour have a lot of thinking to do.  In the case of the Conservatives, this will happen during the forthcoming leadership election.

The next Prime Minister…

The Conservative leadership election will formally start on 7 June, but eleven candidates have already declared.  The election is a two-stage process:  in the first stage, the Conservative MPs narrow the candidates down to two;  the Party membership then selects between the two.  All polling suggests that the Party membership will favour a candidate who both campaigned for “Leave” in the 2016 referendum and is willing to countenance a no deal Brexit.  However, leadership elections are unpredictable, and the favourite at the outset, in this case the former Foreign Secretary Boris Johnson, rarely wins.  The Party expects to have the election concluded before the end of July, at which point the winner will succeed Theresa May as Prime Minister.

The candidates face a complex trade-off between short-term electoral tactics and medium-term strategy.  The pro-Brexit European Research Group (ERG) within the Party has shown that its MPs (a substantial minority of the Party’s MPs) will only back a leader who supports no deal.  And the Party membership is believed to be overwhelmingly (70-80%) in favour of no deal as the best route to leave the EU.  But a number of Conservative MPs have indicated that their opposition to no deal is so strong that they would resign from the Party and cause the Government to lose a vote of confidence – only 3 MPs resigning would risk losing a no confidence vote, even with the support of the Northern Irish Democratic Unionist Party (DUP).  There also remains the problem that a no deal Brexit is not itself a final outcome: the UK and EU would still need to resolve the Irish border issue, and the UK would still need to negotiate trade and other agreements with the EU.

In short, the apparent conundrum for anyone aspiring to lead the Conservative Party is that they cannot win the leadership unless they are willing to espouse a no deal Brexit, and they cannot command a majority in Parliament if they do.

What does it all mean for the Parties?

The parliamentary arithmetic has not changed, although it is possible that the Brexit Party may win its first Westminster seat in the Peterborough by-election on 6 June (traditionally a Conservative-Labour swing seat).  These EP election results are likely to harden opinions on all sides, making compromise even more difficult to find.

For the Conservative Party, and therefore for the next Prime Minister, the idea of any further delay to Brexit beyond the 31 October deadline is unthinkable.  There are no verifiable statistics, but polling evidence suggests that as well as 70% of Conservative voters, around 70% of Conservative constituencies voted Leave in the 2016 referendum – many of these voters deserted the Conservatives in these EP elections because of their failure to deliver Brexit.  The focus of the new Prime Minister and Government is therefore likely to be a rapid attempt to renegotiate Theresa May’s Brexit deal with the EU, which  the EU has said it will not renegotiate, backed by a credible no deal fall-back.  But divisions within the Conservative Party remain, and looking to the future, it is not clear that if the Conservatives become the “hard Brexit” Party, they will be able to sustain a Parliamentary majority in future elections:  a proportion of the Brexit Party’s success was at the expense of Labour and these voters are unlikely to vote Conservative in future.  Polling suggests as many as half of those who defected to the Brexit Party in the EP elections will not return to the fold.  The Conservatives, or at least some of them, still harbour a strong “one nation” tradition, which sits ill with the divisiveness of a hard Brexit.  So there will be an intense debate in the Conservative Party about how to secure Brexit by 31 October and sustain future electoral success, against the backdrop of a Parliament which has a clear majority against a no deal Brexit.

The debate in the Labour Party will not be much easier.  While polling evidence suggests that around 70% of Labour voters voted Remain in the 2016 referendum, nearly 60% of Labour constituencies are believed to have voted Leave (the Leave vote was quite widely distributed, whereas the Remain vote was concentrated predominantly in urban constituencies).  So while the Party membership overwhelmingly favours a further referendum with the Party supporting Remain, as do many Labour MPs, a number of Labour MPs fear for their seats if the Party becomes a “Remain” Party.  The Brexit Party did well in traditional Labour seats in the North of England.  The pressure on the Party Leadership to come out more clearly in favour of a further referendum – rather than keeping it as an “option” – will be strong.  And if it is to aspire to win future elections outright, Labour needs to repair its poor performance in Scotland, which remains solidly anti-Brexit.

And where does that leave us on Brexit?

The new Prime Minister will inherit the Conservative Party’s parliamentary lack of majority, reliance on the DUP for a working majority, and division over whether a no deal Brexit is sustainable.  An early challenge will be whether to continue the current Parliamentary session (already the longest since 1651) or “prorogue” (i.e. end a session of) Parliament.  A new session would have to be opened with a Queen’s Speech, which would require a new confidence and supply arrangement with the DUP, which would be a further challenge – but failure to secure a Parliamentary majority for the Queen’s Speech would almost certainly lead to the collapse of the Government, and could well end the fledgling term of the new Prime Minister.  So a continuation of this “zombie Parliament” looks likely.  The Government normally enjoys a significant benefit through its control of the legislative timetable.  But the advent of a Prime Minister willing to pursue a no deal Brexit approach would strengthen the resolve of MPs to seek to use amendments to Brexit legislation to make no deal Brexit unlawful without, for example, holding a confirmatory referendum.  Significantly the Speaker, John Bercow, yesterday announced that he would not – as some had assumed – retire in July:  the Speaker’s willingness to use his position to ensure that the Government acts on the will of Parliament would make a new Prime Minister trying to drive towards a no deal Brexit much harder.

Although as a matter of international law, the UK leaves the EU regardless of whether it has negotiated a deal on 31 October, some domestic legislation is necessary for a no deal Brexit not to give rise to legal uncertainty.  The only way the new Prime Minister could avoid the risk of legislative amendment completely would be to avoid any new legislation before the date of Brexit, but that would be a high risk approach to Brexit, and create huge challenges for post-Brexit Government.  No deal Brexit has strengthened as an option in the polls, but remains far from enjoying majority support of the electorate.  Delivering a messy and chaotic no deal Brexit, over-riding the will of Parliament but then being unable to govern effectively, would be a triumph of hope over reason.

So while no deal Brexit has become more likely as a component of Conservative Party, and therefore Government, policy, significant obstacles to it remain in Parliament.  However, the prospects for a Brexit deal also remain complex – opposition to the Withdrawal Agreement as it stands has hardened in 2019, and probably even more so as a result of the EP elections.  There is no sign that the EU would be willing to re-negotiate the most contentious part of it, the Irish border backstop.  Without such re-negotiation a Parliamentary majority looks unachievable.

The Parliamentary deadlock makes prediction of the outcome as difficult as ever.  But the combination of a new Prime Minister and the disastrous performance by the two major parties in the EP elections means that the default of the UK leaving the EU without a deal on 31 October, if nothing else has happened before then, has become more likely.  The new Conservative Prime Minister would find it extremely difficult to ask for a further extension to prolong the deadlock.  However, that prospect in itself, combined with possible evolutions in the Labour Party’s position, also increase the possibility of Parliament using legislative amendment to frustrate a no deal Brexit.  One likely way to do this would be to impose a no-deal : no-Brexit referendum.  If Parliament were to do this, it is likely that the EU would agree to extend the Brexit deadline to allow the referendum to take place.

The position remains deadlocked, and the EP elections have reduced the incentive to compromise.  Both the legal default of no deal Brexit on 31 October, and the prospect of a further referendum with a choice between no deal Brexit and Remain, have increased in likelihood, and the prospect of leaving on the basis of an agreement with the EU has reduced.

[1] Although the SNP and Plaid Cymru are explicitly pro-EU in their Party platforms, polling evidence suggests that a proportion – perhaps as many as 30% – of those who vote for them are pro-Leave.  Polling evidence suggests the Conservative vote was roughly 70% pro-Leave, but with only a small %age favouring no deal.  The Conservatives attracted 9% of the Leave vote and 9% of the Remain vote.  The Labour vote was roughly 70% pro-Remain, with most of the Leavers favouring a deal (but not the deal negotiated by Mrs May).

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Brexit Jigsaw

On 24 May, Prime Minister Theresa May announced her intention to resign as Prime Minister.  She will stand down as leader of the Conservative Party on 7 June (after President Trump’s visit and the D-Day commemorations), and as Prime Minister as soon as the Conservative Party has chosen a successor.  Her tenure in office had been looking increasingly challenged for some time.  The immediate trigger for her resignation was her final attempt to get her Brexit deal done, which included the offer of the possibility of a further referendum.  This proved more than her Party could accept, and the Party would have forced her out of office had she not agreed to resign.

The previous day, 23 May, the UK electorate voted in the European Parliament elections.  The results were announced on 26 May after polling had closed across the EU.  Turnout was slightly up on immediate previous EP elections, but at 37% below the EU average and well below both UK General Election and 2016 Referendum turnout.  The results were:

Share of vote EP seats
Brexit Party 31.6% 29
Liberal Democrats 20.3% 16
Labour 14.1% 10
Green 12.1% 7
Conservative 9.1% 4
SNP 3.6% 3
Change UK 3.4% 0
UKIP 3.3% 0
Others 2.5% Plaid Cymru 1,
NI Parties 3

This represents a notable success for Nigel Farage’s Brexit Party (which was only publicly launched on 12 April), a very bad result for Labour and a catastrophe for the Conservatives (their worst result in modern democratic history).  It also represented a very strong performance for the overtly anti-Brexit parties (Lib Dems, Greens, and Change UK[1], between them secured over 35% of the vote).  The immediate conclusion is that both the main parties have been punished by their electorate specifically for their indecisive stance on Brexit, and the division between those who favour a “pure Brexit” (no deal Brexit unless the EU agrees to a much better deal), and those who favour a further referendum in the hope of reversing the Brexit decision, or indeed an immediate Parliamentary revocation of Article 50, has sharpened in a country that remains deeply divided.  But neither “no deal” nor “people’s vote” secured anything close to a clear majority.  Both Conservatives and Labour have a lot of thinking to do.  In the case of the Conservatives, this will happen during the forthcoming leadership election.

The next Prime Minister…

The Conservative leadership election will formally start on 7 June, but eleven candidates have already declared.  The election is a two-stage process:  in the first stage, the Conservative MPs narrow the candidates down to two;  the Party membership then selects between the two.  All polling suggests that the Party membership will favour a candidate who both campaigned for “Leave” in the 2016 referendum and is willing to countenance a no deal Brexit.  However, leadership elections are unpredictable, and the favourite at the outset, in this case the former Foreign Secretary Boris Johnson, rarely wins.  The Party expects to have the election concluded before the end of July, at which point the winner will succeed Theresa May as Prime Minister.

The candidates face a complex trade-off between short-term electoral tactics and medium-term strategy.  The pro-Brexit European Research Group (ERG) within the Party has shown that its MPs (a substantial minority of the Party’s MPs) will only back a leader who supports no deal.  And the Party membership is believed to be overwhelmingly (70-80%) in favour of no deal as the best route to leave the EU.  But a number of Conservative MPs have indicated that their opposition to no deal is so strong that they would resign from the Party and cause the Government to lose a vote of confidence – only 3 MPs resigning would risk losing a no confidence vote, even with the support of the Northern Irish Democratic Unionist Party (DUP).  There also remains the problem that a no deal Brexit is not itself a final outcome: the UK and EU would still need to resolve the Irish border issue, and the UK would still need to negotiate trade and other agreements with the EU.

In short, the apparent conundrum for anyone aspiring to lead the Conservative Party is that they cannot win the leadership unless they are willing to espouse a no deal Brexit, and they cannot command a majority in Parliament if they do.

What does it all mean for the Parties?

The parliamentary arithmetic has not changed, although it is possible that the Brexit Party may win its first Westminster seat in the Peterborough by-election on 6 June (traditionally a Conservative-Labour swing seat).  These EP election results are likely to harden opinions on all sides, making compromise even more difficult to find.

For the Conservative Party, and therefore for the next Prime Minister, the idea of any further delay to Brexit beyond the 31 October deadline is unthinkable.  There are no verifiable statistics, but polling evidence suggests that as well as 70% of Conservative voters, around 70% of Conservative constituencies voted Leave in the 2016 referendum – many of these voters deserted the Conservatives in these EP elections because of their failure to deliver Brexit.  The focus of the new Prime Minister and Government is therefore likely to be a rapid attempt to renegotiate Theresa May’s Brexit deal with the EU, which  the EU has said it will not renegotiate, backed by a credible no deal fall-back.  But divisions within the Conservative Party remain, and looking to the future, it is not clear that if the Conservatives become the “hard Brexit” Party, they will be able to sustain a Parliamentary majority in future elections:  a proportion of the Brexit Party’s success was at the expense of Labour and these voters are unlikely to vote Conservative in future.  Polling suggests as many as half of those who defected to the Brexit Party in the EP elections will not return to the fold.  The Conservatives, or at least some of them, still harbour a strong “one nation” tradition, which sits ill with the divisiveness of a hard Brexit.  So there will be an intense debate in the Conservative Party about how to secure Brexit by 31 October and sustain future electoral success, against the backdrop of a Parliament which has a clear majority against a no deal Brexit.

The debate in the Labour Party will not be much easier.  While polling evidence suggests that around 70% of Labour voters voted Remain in the 2016 referendum, nearly 60% of Labour constituencies are believed to have voted Leave (the Leave vote was quite widely distributed, whereas the Remain vote was concentrated predominantly in urban constituencies).  So while the Party membership overwhelmingly favours a further referendum with the Party supporting Remain, as do many Labour MPs, a number of Labour MPs fear for their seats if the Party becomes a “Remain” Party.  The Brexit Party did well in traditional Labour seats in the North of England.  The pressure on the Party Leadership to come out more clearly in favour of a further referendum – rather than keeping it as an “option” – will be strong.  And if it is to aspire to win future elections outright, Labour needs to repair its poor performance in Scotland, which remains solidly anti-Brexit.

And where does that leave us on Brexit?

The new Prime Minister will inherit the Conservative Party’s parliamentary lack of majority, reliance on the DUP for a working majority, and division over whether a no deal Brexit is sustainable.  An early challenge will be whether to continue the current Parliamentary session (already the longest since 1651) or “prorogue” (i.e. end a session of) Parliament.  A new session would have to be opened with a Queen’s Speech, which would require a new confidence and supply arrangement with the DUP, which would be a further challenge – but failure to secure a Parliamentary majority for the Queen’s Speech would almost certainly lead to the collapse of the Government, and could well end the fledgling term of the new Prime Minister.  So a continuation of this “zombie Parliament” looks likely.  The Government normally enjoys a significant benefit through its control of the legislative timetable.  But the advent of a Prime Minister willing to pursue a no deal Brexit approach would strengthen the resolve of MPs to seek to use amendments to Brexit legislation to make no deal Brexit unlawful without, for example, holding a confirmatory referendum.  Significantly the Speaker, John Bercow, yesterday announced that he would not – as some had assumed – retire in July:  the Speaker’s willingness to use his position to ensure that the Government acts on the will of Parliament would make a new Prime Minister trying to drive towards a no deal Brexit much harder.

Although as a matter of international law, the UK leaves the EU regardless of whether it has negotiated a deal on 31 October, some domestic legislation is necessary for a no deal Brexit not to give rise to legal uncertainty.  The only way the new Prime Minister could avoid the risk of legislative amendment completely would be to avoid any new legislation before the date of Brexit, but that would be a high risk approach to Brexit, and create huge challenges for post-Brexit Government.  No deal Brexit has strengthened as an option in the polls, but remains far from enjoying majority support of the electorate.  Delivering a messy and chaotic no deal Brexit, over-riding the will of Parliament but then being unable to govern effectively, would be a triumph of hope over reason.

So while no deal Brexit has become more likely as a component of Conservative Party, and therefore Government, policy, significant obstacles to it remain in Parliament.  However, the prospects for a Brexit deal also remain complex – opposition to the Withdrawal Agreement as it stands has hardened in 2019, and probably even more so as a result of the EP elections.  There is no sign that the EU would be willing to re-negotiate the most contentious part of it, the Irish border backstop.  Without such re-negotiation a Parliamentary majority looks unachievable.

The Parliamentary deadlock makes prediction of the outcome as difficult as ever.  But the combination of a new Prime Minister and the disastrous performance by the two major parties in the EP elections means that the default of the UK leaving the EU without a deal on 31 October, if nothing else has happened before then, has become more likely.  The new Conservative Prime Minister would find it extremely difficult to ask for a further extension to prolong the deadlock.  However, that prospect in itself, combined with possible evolutions in the Labour Party’s position, also increase the possibility of Parliament using legislative amendment to frustrate a no deal Brexit.  One likely way to do this would be to impose a no-deal : no-Brexit referendum.  If Parliament were to do this, it is likely that the EU would agree to extend the Brexit deadline to allow the referendum to take place.

The position remains deadlocked, and the EP elections have reduced the incentive to compromise.  Both the legal default of no deal Brexit on 31 October, and the prospect of a further referendum with a choice between no deal Brexit and Remain, have increased in likelihood, and the prospect of leaving on the basis of an agreement with the EU has reduced.

[1] Although the SNP and Plaid Cymru are explicitly pro-EU in their Party platforms, polling evidence suggests that a proportion – perhaps as many as 30% – of those who vote for them are pro-Leave.  Polling evidence suggests the Conservative vote was roughly 70% pro-Leave, but with only a small %age favouring no deal.  The Conservatives attracted 9% of the Leave vote and 9% of the Remain vote.  The Labour vote was roughly 70% pro-Remain, with most of the Leavers favouring a deal (but not the deal negotiated by Mrs May).

The post Where does the past week leave the UK? appeared first on Brexit Legal.

Brexit Jigsaw

On 24 May, Prime Minister Theresa May announced her intention to resign as Prime Minister.  She will stand down as leader of the Conservative Party on 7 June (after President Trump’s visit and the D-Day commemorations), and as Prime Minister as soon as the Conservative Party has chosen a successor.  Her tenure in office had been looking increasingly challenged for some time.  The immediate trigger for her resignation was her final attempt to get her Brexit deal done, which included the offer of the possibility of a further referendum.  This proved more than her Party could accept, and the Party would have forced her out of office had she not agreed to resign.

The previous day, 23 May, the UK electorate voted in the European Parliament elections.  The results were announced on 26 May after polling had closed across the EU.  Turnout was slightly up on immediate previous EP elections, but at 37% below the EU average and well below both UK General Election and 2016 Referendum turnout.  The results were:

Share of vote EP seats
Brexit Party 31.6% 29
Liberal Democrats 20.3% 16
Labour 14.1% 10
Green 12.1% 7
Conservative 9.1% 4
SNP 3.6% 3
Change UK 3.4% 0
UKIP 3.3% 0
Others 2.5% Plaid Cymru 1,
NI Parties 3

This represents a notable success for Nigel Farage’s Brexit Party (which was only publicly launched on 12 April), a very bad result for Labour and a catastrophe for the Conservatives (their worst result in modern democratic history).  It also represented a very strong performance for the overtly anti-Brexit parties (Lib Dems, Greens, and Change UK[1], between them secured over 35% of the vote).  The immediate conclusion is that both the main parties have been punished by their electorate specifically for their indecisive stance on Brexit, and the division between those who favour a “pure Brexit” (no deal Brexit unless the EU agrees to a much better deal), and those who favour a further referendum in the hope of reversing the Brexit decision, or indeed an immediate Parliamentary revocation of Article 50, has sharpened in a country that remains deeply divided.  But neither “no deal” nor “people’s vote” secured anything close to a clear majority.  Both Conservatives and Labour have a lot of thinking to do.  In the case of the Conservatives, this will happen during the forthcoming leadership election.

The next Prime Minister…

The Conservative leadership election will formally start on 7 June, but eleven candidates have already declared.  The election is a two-stage process:  in the first stage, the Conservative MPs narrow the candidates down to two;  the Party membership then selects between the two.  All polling suggests that the Party membership will favour a candidate who both campaigned for “Leave” in the 2016 referendum and is willing to countenance a no deal Brexit.  However, leadership elections are unpredictable, and the favourite at the outset, in this case the former Foreign Secretary Boris Johnson, rarely wins.  The Party expects to have the election concluded before the end of July, at which point the winner will succeed Theresa May as Prime Minister.

The candidates face a complex trade-off between short-term electoral tactics and medium-term strategy.  The pro-Brexit European Research Group (ERG) within the Party has shown that its MPs (a substantial minority of the Party’s MPs) will only back a leader who supports no deal.  And the Party membership is believed to be overwhelmingly (70-80%) in favour of no deal as the best route to leave the EU.  But a number of Conservative MPs have indicated that their opposition to no deal is so strong that they would resign from the Party and cause the Government to lose a vote of confidence – only 3 MPs resigning would risk losing a no confidence vote, even with the support of the Northern Irish Democratic Unionist Party (DUP).  There also remains the problem that a no deal Brexit is not itself a final outcome: the UK and EU would still need to resolve the Irish border issue, and the UK would still need to negotiate trade and other agreements with the EU.

In short, the apparent conundrum for anyone aspiring to lead the Conservative Party is that they cannot win the leadership unless they are willing to espouse a no deal Brexit, and they cannot command a majority in Parliament if they do.

What does it all mean for the Parties?

The parliamentary arithmetic has not changed, although it is possible that the Brexit Party may win its first Westminster seat in the Peterborough by-election on 6 June (traditionally a Conservative-Labour swing seat).  These EP election results are likely to harden opinions on all sides, making compromise even more difficult to find.

For the Conservative Party, and therefore for the next Prime Minister, the idea of any further delay to Brexit beyond the 31 October deadline is unthinkable.  There are no verifiable statistics, but polling evidence suggests that as well as 70% of Conservative voters, around 70% of Conservative constituencies voted Leave in the 2016 referendum – many of these voters deserted the Conservatives in these EP elections because of their failure to deliver Brexit.  The focus of the new Prime Minister and Government is therefore likely to be a rapid attempt to renegotiate Theresa May’s Brexit deal with the EU, which  the EU has said it will not renegotiate, backed by a credible no deal fall-back.  But divisions within the Conservative Party remain, and looking to the future, it is not clear that if the Conservatives become the “hard Brexit” Party, they will be able to sustain a Parliamentary majority in future elections:  a proportion of the Brexit Party’s success was at the expense of Labour and these voters are unlikely to vote Conservative in future.  Polling suggests as many as half of those who defected to the Brexit Party in the EP elections will not return to the fold.  The Conservatives, or at least some of them, still harbour a strong “one nation” tradition, which sits ill with the divisiveness of a hard Brexit.  So there will be an intense debate in the Conservative Party about how to secure Brexit by 31 October and sustain future electoral success, against the backdrop of a Parliament which has a clear majority against a no deal Brexit.

The debate in the Labour Party will not be much easier.  While polling evidence suggests that around 70% of Labour voters voted Remain in the 2016 referendum, nearly 60% of Labour constituencies are believed to have voted Leave (the Leave vote was quite widely distributed, whereas the Remain vote was concentrated predominantly in urban constituencies).  So while the Party membership overwhelmingly favours a further referendum with the Party supporting Remain, as do many Labour MPs, a number of Labour MPs fear for their seats if the Party becomes a “Remain” Party.  The Brexit Party did well in traditional Labour seats in the North of England.  The pressure on the Party Leadership to come out more clearly in favour of a further referendum – rather than keeping it as an “option” – will be strong.  And if it is to aspire to win future elections outright, Labour needs to repair its poor performance in Scotland, which remains solidly anti-Brexit.

And where does that leave us on Brexit?

The new Prime Minister will inherit the Conservative Party’s parliamentary lack of majority, reliance on the DUP for a working majority, and division over whether a no deal Brexit is sustainable.  An early challenge will be whether to continue the current Parliamentary session (already the longest since 1651) or “prorogue” (i.e. end a session of) Parliament.  A new session would have to be opened with a Queen’s Speech, which would require a new confidence and supply arrangement with the DUP, which would be a further challenge – but failure to secure a Parliamentary majority for the Queen’s Speech would almost certainly lead to the collapse of the Government, and could well end the fledgling term of the new Prime Minister.  So a continuation of this “zombie Parliament” looks likely.  The Government normally enjoys a significant benefit through its control of the legislative timetable.  But the advent of a Prime Minister willing to pursue a no deal Brexit approach would strengthen the resolve of MPs to seek to use amendments to Brexit legislation to make no deal Brexit unlawful without, for example, holding a confirmatory referendum.  Significantly the Speaker, John Bercow, yesterday announced that he would not – as some had assumed – retire in July:  the Speaker’s willingness to use his position to ensure that the Government acts on the will of Parliament would make a new Prime Minister trying to drive towards a no deal Brexit much harder.

Although as a matter of international law, the UK leaves the EU regardless of whether it has negotiated a deal on 31 October, some domestic legislation is necessary for a no deal Brexit not to give rise to legal uncertainty.  The only way the new Prime Minister could avoid the risk of legislative amendment completely would be to avoid any new legislation before the date of Brexit, but that would be a high risk approach to Brexit, and create huge challenges for post-Brexit Government.  No deal Brexit has strengthened as an option in the polls, but remains far from enjoying majority support of the electorate.  Delivering a messy and chaotic no deal Brexit, over-riding the will of Parliament but then being unable to govern effectively, would be a triumph of hope over reason.

So while no deal Brexit has become more likely as a component of Conservative Party, and therefore Government, policy, significant obstacles to it remain in Parliament.  However, the prospects for a Brexit deal also remain complex – opposition to the Withdrawal Agreement as it stands has hardened in 2019, and probably even more so as a result of the EP elections.  There is no sign that the EU would be willing to re-negotiate the most contentious part of it, the Irish border backstop.  Without such re-negotiation a Parliamentary majority looks unachievable.

The Parliamentary deadlock makes prediction of the outcome as difficult as ever.  But the combination of a new Prime Minister and the disastrous performance by the two major parties in the EP elections means that the default of the UK leaving the EU without a deal on 31 October, if nothing else has happened before then, has become more likely.  The new Conservative Prime Minister would find it extremely difficult to ask for a further extension to prolong the deadlock.  However, that prospect in itself, combined with possible evolutions in the Labour Party’s position, also increase the possibility of Parliament using legislative amendment to frustrate a no deal Brexit.  One likely way to do this would be to impose a no-deal : no-Brexit referendum.  If Parliament were to do this, it is likely that the EU would agree to extend the Brexit deadline to allow the referendum to take place.

The position remains deadlocked, and the EP elections have reduced the incentive to compromise.  Both the legal default of no deal Brexit on 31 October, and the prospect of a further referendum with a choice between no deal Brexit and Remain, have increased in likelihood, and the prospect of leaving on the basis of an agreement with the EU has reduced.

[1] Although the SNP and Plaid Cymru are explicitly pro-EU in their Party platforms, polling evidence suggests that a proportion – perhaps as many as 30% – of those who vote for them are pro-Leave.  Polling evidence suggests the Conservative vote was roughly 70% pro-Leave, but with only a small %age favouring no deal.  The Conservatives attracted 9% of the Leave vote and 9% of the Remain vote.  The Labour vote was roughly 70% pro-Remain, with most of the Leavers favouring a deal (but not the deal negotiated by Mrs May).

The post Where does the past week leave the UK? appeared first on Brexit Legal.

This is the first of a series of posts in which Richard Ekins reflects upon Lord Sumption’s Reith Lectures.

Hart PublishingIn his second Reith lecture, “In Praise of Politics”, broadcast on Tuesday, Jonathan Sumption aims “to make the case for the political process, with all its imperfections.”  He develops a forceful argument for the capacity of representative politics to secure political legitimacy and elucidates, in sharp contrast, the limits of law as a technique to restrain majority rule.

Sumption is no radical democrat.  Even more than his first lecture (on which I commented elsewhere), this second lecture is at times ambivalent about democracy.  It opens with the premise that “In a democracy, the state… is ultimately in the hands of electoral majorities”, which gives rise to the dilemma of how to “control the potentially oppressive power of democratic majorities without undermining democracy itself”.  This framing obscures, it seems to me, the truth that control of the state by electoral majorities is not the default but is a hard-won, precarious political achievement.  Quite how this control should be exercised is obviously vital.  Democracy changes who it is that should govern, not what it is to govern.  The exercise of self-government should involve the people participating in government that is capable of securing the common good.

In a striking passage, Sumption says that “an important object of modern democratic constitutions is to treat the people as a source of legitimacy, while placing barriers between them and the direct operation of the levers of power.”  This is necessary, he says, “to contain the fissiparious tendencies of democracy; to counter the inherent tendency of democracy to destroy itself when majorities become a source of instability and oppression.”  I agree that the people are not well-placed to govern themselves directly and should instead be governed by way of representative institutions capable of reasoned choice.  This is how majorities exercise control.  The lecture’s argument that “all democracies have evolved methods of limiting or diluting the power of majorities” nicely upends expectations but also risks understating the moral force of political equality and the moral importance of the people having a share in their own government.

The lecture’s analytic foundation is the idea of legitimacy.  Sumption argues, rightly I think, that the state’s power turns on its perceived legitimacy – on the people’s willingness to comply without widespread use of force.  He takes legitimacy to be “a collective instinct that we owe it to each other to accept the authority of our institutions”, which depends in turn “on an unspoken sense that we are in it together”, to which a common history, language and culture are all highly relevant.  The point of the political process is to enable us to live together, in one political community, despite our conflicting interests and opinions.  It follows, I say, that fostering this political unity, and thus the capacity to act jointly despite sharp disagreement, is a weighty responsibility.

In a democracy, majority and minority disagree, but this is “transcended by their common acceptance of the legitimacy of its decision-making processes”.  For Sumption, however, majority rule itself “does nothing to accommodate our differences”, and a state in which “a bare majority takes 100% of the political spoils… would harbour large and permanently disaffected groups in their midst, who had no common bonds to transcend their differences with the majority… and would quickly cease to be a political community”.  There is something to this analysis, no doubt, but it also contains at least two questionable assumptions.  The first is that the division between majority and minority is deep and enduring, rather than temporary and fleeting.  The second is that the majority acts for itself, rather than acting for the common good which includes the interests of the minority.  Majority rule, as Sumption says, is a technique.  It can be abused and it can be abandoned.  But it is fully consistent with the priority of reasons (principles) rather than preferences.  And it has an obvious and justified attraction to any group that needs to and intends to make a decision together, namely that it treats all members as equals and is not biased in favour of the status quo.

The people should not govern directly and Sumption makes an eloquent case for representative politics.  Relying on Madison and Burke, he notes that a legislative assembly may be better placed than the people themselves to perceive the national interest, to avoid short-term thinking or surrender to sectional interests.  For Burke, Parliament’s responsibility to deliberate about the common good of the polity requires representatives to exercise judgment rather than to carry out instructions; this is a long way, rightly, from public choice theory.  Sumption stresses the virtues of political elites, who are duty-bound to reflect on where the national interest lies, which may depart from public opinion.  True, but note that of course public opinion is not static – politicians lead as well as follow – and public opinion is relevant to whether some course of action will be stable or effective.  The power of representative politics, Sumption argues, is that it enables robust action for the national interest “while at the same time accommodating the differences among our people”.  I agree.  And I share his view that political parties and their competition for parliamentary and electoral support are utterly vital to this end.  As he says, they have long been “powerful engines of national compromise and effective mediators between the state and the electorate”.

How does this analysis bear on the UK’s present political turmoil?  Sumption notes that there are serious arguments for and against leaving the EU but says they are irrelevant to his theme.  I am not sure he is right about this, but I understand why one might bracket them.  The arguments for leaving the EU are arguments about legitimacy, about who should govern and how they should be held to account.  The decline of political parties and public engagement in politics, which Sumption rightly laments, is related to EU membership, as the late Peter Mair argued in Ruling the Void.  The process by which the UK eventually came in June 2016 to decide to leave the EU confirms that while an elite consensus can keep major questions of political legitimacy off the political agenda for a time, party political competition can in the end force them back on the agenda.  The referendum was the technique our parliamentary democracy reasonably chose to attempt to settle this question.

However, Sumption’s main focus in this lecture is on the political aftermath of the referendum.  He notes that the two main parties have revised their previous support for membership of the EU, but that many people remain hostile to Brexit, such that one would “ordinarily expect the political process to produce a compromise not entirely to the liking of either camp, but just about acceptable to both”.  This has proven difficult precisely because the referendum bypassed the ordinary political process, obstructing compromise by producing “a result in which 52% of voters feel entitled to speak for the whole nation, and 48% do not matter at all.”  But pace Sumption the whole nation did decide, by majority vote, to leave the EU.  There is room for compromise, certainly, about the terms on which the UK leaves but not on the question of whether to leave itself.

What Sumption welcomes as the return of politics in the last six months, with Parliament forcing “compromise on those who feel that the referendum entitles them to absolute outcomes”, I would say has instead been a failure to keep faith with the electorate.  Parliament should have approved the withdrawal agreement or supported withdrawal without an agreement.  Responsibility for this political debacle is widely shared, but the refusal of so many in public life to accept the legitimacy of the decision to leave the EU has been significant and ought to be scandalous.

While my analysis of our present troubles differs from Sumption’s, I admire his exposition of the virtues of representative politics.  The balance of his lecture considers the rise of law and elucidates “the limits of what law can achieve in controlling majorities, and the price to be paid if it tries too hard”.  In adjudicating disputes fairly and in accordance with settled law, courts help uphold the rule of law and instantiate reciprocity between rulers and ruled.  This does not involve or require authority to override government policy or Parliament’s lawmaking choices.  However, Sumption notes that in the last thirty years courts have increasingly deployed “a broader concept of the rule of law which greatly enlarges their constitutional role”.  They have asserted “a wider supervisory authority over other organs of the state” and “have inched their way towards a notion of fundamental law overriding ordinary processes of political decision-making” which has “carried them into the realms of legislative and ministerial policy.”  This is a claim to political power.

This new assertion of judicial power is starkly evident in Evans v Attorney General, Sumption argues, a case in which “The majority’s reason, however dressed up, was that they did not approve of the power that Parliament had on the face of it conferred on ministers”.  Like Sumption, and the two judges in dissent, I take this to have been a wholly unjustifiable decision, but a revealing one.  Evans is an example of a wider trend, a trend the lecture outlines vividly and to which it will hopefully draw public attention.  The risk, as the lecture notes, is that attention may focus simply on the outcome of judgments rather than on the problem of legitimacy.  Sumption makes clear that there is a problem: the expansive judicial approach “confers vast discretionary power on a body of people who are not constitutionally accountable to any one for what they do… [and] undermines the single biggest advantage of the political process”, which is its capacity to accommodate difference.  I would add that the trend also involves departure from settled law, undercutting the rule of law, which should discipline courts, and thus chipping away at the legitimacy of the judicial process itself.

Law is now politics by other means, Sumption says, but a means that is incapable of delivering the compromises that are necessary if we are to live together peacefully.  His adaptation of Clausewitz calls to mind Lord Justice Singh’s recent ringing statement of principle that “judicial review is not, and should not be regarded as, politics by another means”.  Sumption overstates for rhetorical effect the extent to which litigation is now simply politics, but likewise Lord Justice Singh’s statement of principle is alas often observed in the breach, and was uttered in a case in which, as he says, the claimants seemed to have forgotten it.  Not all judges are enthusiasts for a broader constitutional role.  How the tradition will develop, and whether it will resile from this role, turns in part on how judges and lawyers think about the political process and about the limits of law, as well as on whether parliamentarians and the public notice and object to the idea that litigation is simply politics by other means.  The power of this second Reith lecture, which I expect the lectures yet to come will supplement, is not only that it may alert the public to the rise of judicial power, but that it makes clear to all the illegitimacy of displacing representative politics with litigation.

Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).

(Suggested citation: R. Ekins, ‘Representative Politics and the Limits of Law’, U.K. Const. L. Blog (29th May 2019) (available at https://ukconstitutionallaw.org/))




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