Written by Robert Harneis
This article was first published in Briefings for Brexit and we re-publish with their kind permission.
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The ambiguity in the Act may be a deliberate attempt to wriggle through our constitutional conventions and please two sets of lawyers and two legal requirements.
A further question arises from the strange hiatus in the European Union (Withdrawal) (No. 2) Act 2019 between the terms of the act itself and the terms of the letter it demands the Prime Minister send. The act was put together by sharp legal minds. Why this strange ambivalence?
On careful consideration it seems reasonable to conclude that this arises from having to satisfy at least two sets of lawyers. First the Act itself had to be phrased in such a way that it gave the Speaker of the House of Commons and his legal advisers plausible grounds to rule that no Royal Consent was required because the Royal Prerogative was unaffected. That would explain why it is aimed at the Prime Minister personally and not the Government. Note that the case in the Scottish Court to compel compliance with the Act were against the Prime Minister personally but that significantly the plaintiffs went to great lengths to persuade the court to widen its application to the government as a whole. So far, they have failed subject to appeal.
The second set of legal advisers that the supporters of the Act will have had to take into account are those advising the EU. Philip Hammond has been reported to have sought their advice. Article 50 requires that any extension of the leaving date must be sought in a manner that conforms with the UK constitution. That would explain why the letter the Prime Minister is required to send, unlike the Act, refers to ‘Her Majesty’s Government’. On reflection it is highly unlikely that the EU lawyers are unaware that the Prime Minister is not the constitutional government of the UK, hence the need for a wider phraseology in the letter required in an attempt to show that the extension is in accord with the constitution.
There is of course a third group that is targeted by the Act. One of the strengths of this government, as opposed to that of Theresa May, is that all Ministers, willingly or unwillingly, committed themselves to the No Deal possibility. For all its shortcomings the Act serves the purpose of giving a fig leave to those that would not be unhappy to go back on their word. After all, if No Deal is ‘illegal’ how can they be expected to support it? The government should be prepared for resignations and have some names ready to replace potential resigners.
It is of course a grave condemnation that the way in which the Act was forced through meant there was no examination of just these issues. Had the House of Lords done its job the issues discussed here would have emerged before the bill was passed. The government can expect more legislation of this sort and should be prepared to refuse Royal Assent where Royal Consent cannot be refused. True, the last occasion this happened was 1709 but the fixed Term Parliament Act has created a new situation. The opposition cannot expect the government to accept legislation that is not properly scrutinized and with which they do not agree. At the end of the day their remedy is to vote for a general election or attempt to change the government.
The final point that emerges from all this is the urgent need for the government to take action to remedy the outrageously unrepresentative composition of the House of Lords. The government should be prepared to install a sufficient number of peers to redress the balance in line with the result of the general election and the referendum. It is hard to see how, without the undemocratic, unaccountable cooperation of the House of Lords with the opposition and the Conservative rebels, this Act would have passed, at least in the form that it did.
(Robert Harneis lives and works in Strasbourg.)