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Today the Court of Justice of the European Union delivered its judgment in Wightman. This followed the opinion of Advocate General Campos Sánchez-Bordona, concluding that the UK may unilaterally revoke its notification of its intention to leave the EU. In a similar manner to the AG, the CJEU placed conditions on this unilateral revocation. A formal process would be needed to notify the European Council of the UK’s intention to revoke article 50. Such notice of revocation would have to be unequivocal and unconditional (para 74), and, importantly, ‘in accordance with the constitutional requirements of the Member State’, in this case, the UK, and following a ‘democratic process’ (para 66). It would also have to take place before the end of the Article 50 negotiation period, or any agreed extension, and before a Withdrawal Agreement between the exiting state and the EU had been ‘concluded’ – i.e. entered into force (para 73). In addition, the AG’s opinion was that any revocation would have to be in ‘good faith’ and in line with the requirement of ‘sincere cooperation’ between the Member State and the EU and. Further, although not required, it would be reasonable for the Member State to provide its reasons for revoking the Article 50 notification.

This raises an important question for UK constitutional lawyers:  what would be the constitutional requirements for the UK to lawfully notify the Council of its intention to revoke its Article 50 notification in order to remain in the EU? In particular, is AG Campos Sánchez-Bordona correct in his suggestion that ‘if the national constitutional requirements include, for example, prior parliamentary authorisation for the notification of the intention to withdraw from the European Union (as is the case in the United Kingdom, according to the Miller judgment), it is logical, in my view, that the revocation of that notification also requires parliamentary approval’ (para 145)?

This post will argue that primary legislation would be legally and constitutionally required in order to empower the Prime Minister to revoke Article 50. It will contend that the clear legal arguments in favour of this conclusion are reinforced by concerns of both political reality and arguments of constitutional legitimacy.

The need for legislation in UK law

Is the Advocate-General right to suggest that Miller means that legislation would be needed to empower the Prime Minister to revoke Article 50, in a similar manner to the legislation found to be required to empower the Prime Minister to trigger Article 50? Miller concluded that legislation was needed due to limits on the scope of prerogative powers and their lawful use. It found that triggering Article 50 was beyond the scope of the broad prerogative power to enter into and withdraw from Treaties as it would lead to a modification of domestic law, remove rights, and frustrate the purpose of the European Communities Act 1972 (‘ECA’) and the European Parliamentary Elections Act 2002.

Not all of the above limitations on the prerogative are applicable here. Unlike use of the prerogative to leave the EU, its use to revoke the UK’s Article 50 notification would not remove rights or alter domestic law. The UK remains a member of the EU throughout the negotiation period, and will lose this status only when it leaves the EU. As such, revoking Article 50 would merely maintain the status quo in terms of domestic law and the protection of rights. The rights, powers, liabilities, obligations, restrictions, remedies and procedures UK citizens currently enjoy through their membership of the EU would simply continue as Article 50 was revoked.

The principle that we do argue is applicable and engaged is that the prerogative may not be exercised in a way that frustrates the intention of Parliament as expressed in statute.  Critics of Miller might argue that the majority judgment did not rest on this principle but on the more controversial contentions that notifying Article 50 would result in the removal of a source of law in the UK (EU law) and hence precipitate a major constitutional change. However, those arguments may be regarded as flowing from the majority’s recognition of the unique constitutional importance of the ECA, which lead them to emphasise that rendering it a dead letter via the prerogative would actually remove a (de facto) source of law from the UK Constitution and thereby make a major change to the constitution.  However, we contend that even if one disagrees with those arguments as applied to the ECA, that does not affect the central argument we make in this blog.

That is because Miller did not invent the principle that the prerogative may not be exercised in a way that frustrates the intention of Parliament. Rather the majority judgment explicitly endorsed it as a pre-existing principle, flowing from the prior, unchallenged authorities of Fire Brigades Union (‘FBU’) and Laker Airways, which they cited with approval (para 51). Lord Browne Wilkinson summarised the basic principle in FBU:

it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute…

The majority in Miller affirmed this basic principle. ‘Ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation’ (para 51).  This principle follows logically from a basic aspect of parliamentary sovereignty – that Acts of Parliament rank higher than other sources of law, including the prerogative. Moreover, Article 1 of the Bill of Rights 1689 makes clear that the prerogative may not be used to ‘dispense with or suspend the execution of the laws’.  The dissenting judgments in Miller did not call the frustration principle into question; they merely considered that it did not apply, given their construction of the nature and purpose of the ECA. Thus our argument does not need to rely on any controversial aspect of the majority judgment in Miller and indeed would be the same even if Miller had never been decided. It simply applies the well-established frustration principle, which derives from FBU and Laker, and was expressly affirmed in Miller. 

What are the statutes whose purposes may be frustrated by revocation of Article 50? We suggest that there are two – the European Union (Notification of Withdrawal) Act 2017 and the European Union (Withdrawal) Act 2018 – and we take them in turn.

Frustration and the European Union (Notification of Withdrawal) Act 2017

Of the two Acts, it is less clear that the European Union (Notification of Withdrawal) Act would be frustrated. If we merely look at the title of the legislation, then its purpose may appear to be frustrated, given that it refers to the UK’s notification of its intention to withdraw. Moreover, section 1 states, ‘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’. Whilst the purpose of this legislation was to empower the Prime Minister to notify the EU of the UK’s intention to leave in order to implement the wishes of the majority who voted in the 2015 referendum, the statute itself only grants a power. It does not require the Prime Minister to notify the European Union. The words ‘intention to withdraw’ also play an important role. These words mirror the requirements of Article 50(2) TEU. As the Advocate-General recognised, intentions may change. The decision of Parliament to give the Prime Minister power to notify the EU of the UK’s then intention to leave is not thwarted if the UK’s intention changes and the PM subsequently also notifies that changed intent.

Nor would the 2017 Act be rendered devoid of purpose by revocation. The legislation was used to trigger Article 50, negotiations have taken place, and a Withdrawal Agreement and Future Framework drawn up and agreed. Indeed, if the statute’s purpose had not been fulfilled then there would no need for the Prime Minister to revoke article 50; the UK would not need to revoke a notification of intention to withdraw if that notification had never been given to the EU under the power bestowed by the Act. So, whilst an argument may be made that this legislation would be frustrated, we do not consider it a particularly strong one. However, since we will argue that primary legislation is in any event needed due to the 2018 Withdrawal Act, our conclusion on this Act is not decisive for our overall argument.

Frustration and the European Union (Withdrawal) Act 2018

In relation to the European Union (Withdrawal) Act 2018 (EUWA), a much stronger argument can be made that using the prerogative to revoke Article 50 would frustrate its purposes. First, the whole purpose of the Act is to facilitate the UK’s actual exit (not its mere initial intention to exit) from the European Union. In our view, this would be frustrated were the UK to revoke Article 50 using the treaty prerogative. It could be argued that the 2018 Act merely provides evidence of an intention to leave the European Union, but that it is not a direct expression of that intention. But this is unpersuasive: the Act provides for the implementation of this intention, aiming to achieve certainty and stability by enabling existing EU law to continue to be applied in the UK as EU-derived law, unless and until this is amended by delegated or primary legislation. It also provides a means of remedying deficiencies in retained EU law which arise due to leaving the EU, or making provision to implement the Withdrawal Agreement prior to exit day.

However, an argument about the EUWA could be made that was similar to one advanced in Miller in relation to the European Communities Act 1972 (ECA). That statute was said by the Government side merely to provide a means of facilitating EU membership should the Government decide to join the then EEC, by allowing, inter alia, such EU rights and obligations as existed from ‘time to time’ to take effect in UK law. As such, it was argued that the ECA’s purpose would not be frustrated were the category of those rights and obligations to become an empty one (as would be the case when the EU Treaties ceased to apply to the UK).

Similarly it could be argued that the EUWA merely provides the means to implement the withdrawal of the UK from the EU should the UK Government finally decide to do so under the prerogative. However, this narrow approach to statutory purpose was emphatically rejected by the majority in Miller. It would be odd, therefore, if the courts were to prefer this more narrow reading of the EUWA having used a more purposive reading of the ECA in Miller. In a question of equal constitutional importance to that raised in Miller, there are strong constitutional arguments for adopting the same approach.  

This conclusion is reinforced when we examine the following provisions of the EUWA, which are currently in force (much of the Act has not yet been commenced). Sections 8 to 11 of the Act empower Ministers to enact delegated legislation when the Minister considers it appropriate to deal with defects that arise when the UK leaves the EU, or in order to implement the Withdrawal Agreement prior to exit day. These sections would be frustrated by revocation. It would no longer be the case that measures would be required to implement the Withdrawal Agreement, or to remedy defects in delegated or primary legislation arising from the UK’s withdrawal from the EU. Hence these provisions would be rendered devoid of purpose.

Sections 12(2), 12(4) and 12(6) of the Act modify the powers of the devolved legislatures and executives. Prior to the Act coming into force, the devolved legislatures were unable to enact legislation which contravened EU law. Nor could the devolved executives act in a manner which contravened EU law. Section 12 modifies this restriction, replacing it with a restriction not to act contrary to the provisions of section 12 of the EUWA. To revoke Article 50 unilaterally would frustrate the purposes of section 12, the aim of which is to allow powers repatriated from the EU to return to the devolved legislatures, enabling them to modify EU-derived law, unless Ministerial orders of the UK government have temporarily removed this power from the devolved legislatures in order to develop common frameworks.

Section 20 meanwhile defines ‘exit day’ while s 20(4) provides for a power to vary exit day by ministerial Order. This provision too would be rendered devoid of purpose were the UK to revoke; moreover it appears fairly clearly to provide evidence of parliamentary intention to exit, without which the whole notion of ‘exit day’, which runs through the provisions of the EUWA, would be meaningless.

Section 13 provides for the meaningful vote. Whether it would also be frustrated by revocation is perhaps more debatable. It might be argued that the narrow purposes of this section is only to provide for a process of parliamentary approval in relation to the Withdrawal Agreement and the Framework for the Future Relationship should the Government wish to ratify the former. In other words, it could be seen as merely a conditional provision, such that, were the Government to decide instead to revoke the Article 50 notice, the condition required for its application would not have come into play.

The contrary argument is that the aim of this provision is to provide Parliament with the opportunity to debate, and vote on, the Withdrawal Agreement and the Framework for the Future Relationship if they are agreed with the EU, as is the case now. The condition precedent for making section 13 “live” has thus been fulfilled and the Government has laid the relevant documents before the House, thus commencing the application of the process set out in that section. Revoking article 50, using the prerogative, would render both the Withdrawal Agreement and Future Framework otiose and hence frustrate the purpose of section 13, which is to enable Parliament to approve or disapprove those instruments, once agreed. (If the Government’s Withdrawal Agreement were to be approved by the meaningful vote, only for the Government later to revoke Article 50, then section 13 could be said to be frustrated after the fact because the approval of the Withdrawal Agreement that Parliament had bestowed would be rendered retrospectively nugatory).  More broadly, it could be said that the purpose of this provision is to enable Parliament to exert control over the decisive stage of the Brexit process; were the Government to revoke its Article 50 notice using the prerogative, that would seem to run counter to that broader aim.

An implied statutory power to revoke?

The above has assumed that the foreign affairs prerogative would be the domestic law power used to revoke Article 50. It could be argued instead that there is an implied statutory power to revoke, flowing from the 2017 Notification Act. Plainly there is no mention of any such power in the statute. Hence the argument would have to be that a power to notify under Article 50 also included the implied corollary power to withdraw which, the CJEU has now found, inheres in Article 50. Or it could be suggested that the power bestowed by the 2017 Act was to commence and conduct the negotiations with the EU that notifying Article 50 entails, and that this more general power included the power to withdraw the notice. This argument does not seem particularly strong, especially given our conclusion that the basic purpose of the Act was simply to empower the Prime Minister to notify the UK’s then intention to leave. To find an implied positive power to revoke in the face of that basic purpose would seem something a stretch, to say the least.

Law, politics and the constitution

The above arguments are reinforced by the following considerations of political and constitutional legitimacy. Given that a majority of those who took part in the referendum voted to leave the EU and Parliament has passed two Acts that allowed for the UK to withdraw from the EU, it would seem inconceivable that the Executive, acting alone through the prerogative, could legitimately make the decision to cancel that process via revocation.

Moreover, giving Parliament a full legislative role in the decision to revoke may be relevant to an EU law requirement. The A-G saw the need for adherence to national constitutional requirements as providing evidence for the EU law requirement that a Member State was not abusing its power to unilaterally revoke Article 50 by using this tactically to negotiate a better deal. To revoke Article 50 without legislation might not satisfy this evidential requirement, especially when coupled with the AG’s suggestion of reciprocity between the criteria for triggering and revoking Article 50. The decision of the CJEU appears to take this requirement further. To allow a Member State to revoke Article 50 without adhering to a democratic process ‘would be inconsistent with the Treaties’ purpose of creating an ever closer union among the peoples of Europe’ (para 67). Moreover,  ‘to force the withdrawal of a Member State which, having notified its intention to withdraw from the European Union in accordance with its constitutional requirements and following a democratic process, decides to revoke the notification of that intention through a democratic process’ would further undermine the EU’s value of respect for democracy (para 67). Use of the royal prerogative alone could surely not satisfy the requirements of ‘a democratic process’.

Our main legal conclusion is clear: should the decision be made to revoke the UK’s Article 50 notice, legislation would be required explicitly empowering the Prime Minister to do so. For the avoidance of any doubt, any such legislation would need to state that the power to revoke applied ‘notwithstanding any provision’ in the 2017 and 2018 Acts ‘or any other enactment’. At the very least, there is a strongly arguable case that legislation would be required: to seek to revoke without it would simply invite immediate litigation.

A further referendum?

Many argue that democratic legitimacy would require not just an Act of Parliament but also a second referendum to be held before a decision to revoke Article 50 could properly be made. Their argument may be reinforced by the decision of the CJEU, with its focus on the need for reciprocity and democratic legitimacy to uphold values of liberty and democracy in the EU – although it is clear that it is for the UK and not for the EU to determine the UK’s constitutional requirements.

Should the Commons refuse to approve the Withdrawal Agreement and Future Framework in the vote on the 11th December then a further motion is required under section 13(4)-(6) of the EUWA, taking note of how the Government proposes to proceed, in light of that rejection. However even were an amendment to be passed to that motion that called for a further referendum, that would not itself have any empowering legal force. Fresh legislation would still be needed to authorise the holding of any such referendum.

Were Parliament to pass such legislation, and were it to provide that remaining in the EU was to be one of the choices on the ballot paper, then that Act could provide the statutory authorisation for revocation that we have argued is constitutionally required. Indeed, to avoid arguments about the referendum’s legal status, it would make sense for the enabling Act to specify that, in the event that a majority voted ‘Remain’, the Prime Minister was required to revoke the Article 50 notice. Thus the referendum legislation itself could provide the necessary legal authority to the Prime Minister. It is hard if not impossible to see that such legislation could be passed and a referendum held before 29 March. Hence such a course would almost certainly require the UK to request an extension under Article 50(3), which would require the unanimous approval of the European Council.

The authors would like to thank Robert Craig for comments on an earlier version.

Gavin Phillipson is Professor of Law at Durham University. He is also currently a Parliamentary Academic Fellow in the Parliament and Constitution Centre in the House of Commons Library. The views above represent his personal view, which should not be taken as representing the views of the Library.

Alison L Young is the Sir David Williams Professor of Public Law, Robinson College, University of Cambridge.

(Suggested citation: G. Phillipson and A.L. Young, ‘Wightman: What Would Be the UK’s Constitutional Requirements to Revoke Article 50?’, U.K. Const. L. Blog (10th Dec. 2018) (available at https://ukconstitutionallaw.org/))

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The UKCLA Annual General Meeting will be held at 12 o’clock on the 7th of January 2019 in the Keeton Room, Bentham House, University College London, WC1H 0EG. The AGM is open to all paid up members of the UKCLA. The AGM will be followed by a Roundtable looking at important issues affecting the UK democracy and its constitutional arrangements. The Roundtable will run from 1-4pm consisting of two panels. The Roundtable is open to all UKCLA members and invited guests.

More details to follow.

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On Wednesday, 21 November, the House of Lords Delegated Powers and Regulatory Reform Committee (the ‘Lords Committee’) held a unique concurrent meeting with the House of Commons Regulatory Reform Committee (the ‘Commons Committee’) to take evidence as part of its scrutiny of a draft Legislative Reform Order (‘LRO’) entitled the Legislative Reform (Horserace Betting Levy) Order 2018 (the ‘Levy Order’).

The Levy Order proposes to change the horserace betting levy scheme by amending the Gambling Act 2005 and repealing statutes relating to the levy. It would abolish the Horserace Betting Levy Board and transfer some of its functions to the Gambling Commission while allowing the minister to designate an authority to apply levy funds (the newly established Racing Authority). The government’s rationale for the reforms is to streamline the administration of the levy. During initial scrutiny by the Lords Committee concerns were raised about whether the Levy Order was an appropriate use of the LRO process and whether it met the relevant statutory tests.

LRO framework

Pursuant to the Legislative and Regulatory Reform Act 2006 (the ‘LRRA’), an LRO is a special kind of statutory instrument that can be made by a minister to directly amend primary legislation and therefore bypass the ordinary parliamentary process. The power to amend primary legislation by subordinate legislation is referred to as a Henry VIII clause, recently characterised as a “departure from constitutional principle” in a report of the House of Lords Constitution Committee (discussed in a post by Mark Elliott and Stephen Tierney).

The LRRA is designed to assist deregulation. It permits an LRO to be made when it would reduce a burden that results from legislation, which is defined broadly to mean a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability, or a sanction (criminal or otherwise) that affects the carrying out of a lawful activity. The government’s guidance advises that LROs can be “a useful tool for routine and urgent deregulatory changes that are unable to find a bill”.

The LRRA imposes preconditions to an LRO including that its policy objective could not be secured by non-legislative means, that it is proportionate, that it strikes a fair balance between the public interest and persons adversely affected, that it does not remove any necessary protection, that it does not prevent anyone from continuing to exercise a right or freedom which they might reasonably expect to continue to exercise, and that it is not of constitutional significance. LROs are also subject to restrictions on their ability to sub-delegate legislative powers.  In addition, an LRO cannot create a serious criminal offence or significantly increase criminal penalties, impose, abolish or vary a tax, authorise forcible entry, search or seizure, or compel the giving of evidence.

Before making a draft LRO, the minister must consult with persons substantially affected by the changes. Following consultation, the minister is required to lay the draft LRO and an explanatory document before Parliament. The minister must also recommend the negative, affirmative or super-affirmative resolution procedure, each of which involves a different level of parliamentary scrutiny of the draft LRO before it can become law.

In the case of the Levy Order, the minister originally recommended the affirmative procedure, which was later upgraded by the Lords Committee to the super-affirmative procedure in light of concerns raised. The super-affirmative procedure is the most stringent as it subjects the draft LRO to two periods of committee scrutiny and requires an affirmative resolution of each House before it can become legally effective.

Committee scrutiny of draft LROs

In examining a draft LRO under the super-affirmative procedure, both the Commons and Lords Committees consider whether it meets the statutory requirements described above and, according to the LRO guidance, “whether the consultation [in relation to the reform] was adequate, meaningful and genuinely enabled consultees to understand, judge and comment” on the proposal within a reasonable period of time.  The LRRA provides that either Committee may recommend that the LRO should not proceed, in which case the minister is prevented from making the LRO except where the Committee’s recommendation is overruled by the House.

The LRRA does not refer to an appropriateness test in the LRO scrutiny process. The Lords Committee takes the view that it should consider whether a draft LRO is appropriate in addition to the statutory tests, while acknowledging that it should not examine policy questions relating to the draft LRO in depth.  This additional layer of scrutiny is undoubtedly useful although it is not clearly expressed in the Committee’s remit, which provides for the Committee to assess the appropriateness of delegation provisions in bills. By contrast, the Commons Committee’s remit under the Commons Standing Orders provides for it to review the appropriateness of draft LROs. It would appear that the Lords Committee has simply extended its usual approach from the scrutiny of bills to the LRO process.  For both Committees, an appropriateness review of a draft LRO carries an increased risk of politicisation.  In working out whether a concrete exercise of legislative power like a draft LRO is appropriate provides a tempting opportunity to critically reflect on government policy as compared to, for example, the more conceptual enquiry of examining a provision in a bill.  Fortunately, the skilful leadership of both Committees appears to have mitigated this risk.

How is appropriateness defined?  Past Committee reports make clear that a detailed explanation from the minister justifying the use of the draft LRO will be required, particularly in relation to the decision to select the vehicle of an LRO as opposed to that of primary legislation.  The Committees are likely to question draft LROs that deal with the public revenue, those that create criminal offences or impose significant penalties, those that interfere with the exercise of existing rights, those that seek to sub-delegate wide powers, and those that involve matters of political controversy or that would make significant reforms which are more appropriately dealt with through the bill process and a full debate in Parliament.  Some of these grounds are covered by the statutory tests and there is inevitably overlap between the specific LRRA requirements and the more general appropriateness assessment.  The usefulness of the appropriateness assessment lies in its gatekeeping function: in circumstances where either Committee concludes that its scrutiny process is not up to the job and further debate and judgement is required, the draft LRO will be deemed inappropriate.  The yardstick for measuring what is appropriate can be expected to continue to develop over time as the Committees scrutinise new draft LROs and report on their findings.  It is conceivable that the Commons and Lords may develop somewhat different approaches to appropriateness given their different compositions.  The potential for divergence should not be problematic provided clear principles guide the appropriateness assessment for each Committee.

The Levy Order hearing

The Levy Order hearing is believed to be the first time that both the Commons and Lords Committees sat concurrently.  The purpose was to take evidence on the appropriateness of the government’s decision to bring in the Levy Order reforms through an LRO as opposed to primary legislation.

The first witness, Lord Lipsey, former chairman of the Greyhound Board, gave evidence opposing the Levy Order.  His main ground of attack was that the Levy Order was a “wholly inappropriate” use of the LRO procedure although he believed that it also failed the LRRA tests.  The real purpose of the Levy Order was not to reduce a legislative burden but to reform the way in which the levy was collected and to abolish the Horserace Betting Levy Board. Lord Lipsey argued that the Levy Order was too substantial for an LRO and did not fall within the expected use of the LRO power under the LRRA.  The attenuated debate of the LRO process was inadequate for an LRO of the magnitude and importance of the Levy Order, which required primary legislation.  Lord Lipsey noted the “grave risk” of delegated powers that could be exercised in the absence of robust parliamentary scrutiny and argued that government officials would be quick to see the Levy Order as an important precedent on the available scope of the LRO procedure.  If the Levy Order was approved, it would open the floodgates and pave the way for more substantial LROs in the future.

The second witness, Minister Mims Davies (accompanied by a number of departmental officials) defended the Levy Order.  On its appropriateness, members of the Committees questioned whether the Minister (or her predecessor) had considered primary legislation.  The Minister argued that the LRO process was “absolutely” the correct way to bring in the reforms.  An official noted that the government had taken legal advice when it formulated the policy, which identified an LRO as the appropriate vehicle.  Members questioned the transfer of the levy application function from an existing statutory body to a non-statutory body which would be exempt from ordinary transparency regulations (e.g., those related to freedom of information).  Members also questioned why the racing authority was not identified on the face of the Levy Order.  The Minister argued that a power to designate the authority would “future proof” the legislation in case a change needed to be made.  Members were critical of this power on the basis that it was too broad and lacked parliamentary oversight. Members questioned whether the real reason for bringing in the reforms through an LRO might have been simply that the government ran out of room in its legislative agenda.  At one point, the Minister reiterated that the reforms were supported by the industry, prompting a sharp interjection from a member that the role of the Committees was not to promote an industry but to protect the broader public interest. Members reiterated that they were supportive of the racing industry but the question for the Committees was not whether the reforms were sensible but whether an LRO was the appropriate way in which to bring them in. One member noted that it would have been preferable to have a full debate about the reforms in Parliament.  While the Minister reiterated her confidence in the Levy Order, she acknowledged that she was “not feeling it” in relation to having made her case.

Final observations

The scrutiny period for the Levy Order expires 12 December.  The hearing suggests that the Committees are prepared to knock back the Levy Order as an inappropriate use of the LRO procedure (and possibly also on the grounds that it fails one or more of the statutory tests) – or at a minimum, recommend significant amendments in relation to the concerns raised.  While rare, a recommendation against a draft LRO is not without precedent.

The forthcoming Committee reports stand to be highly valuable to better understand how the Committees see their role in relation to the LRO scrutiny process and their interpretation of the statutory tests and the appropriateness assessment.  Greater clarity of the LRO scrutiny process will be useful both for the Committees and for the government in relation to future cases.

It also worth noting the increasing attention being paid by parliamentarians to delegated legislation, no doubt driven by the need to scrutinise numerous regulations in light of Brexit.  This is a welcome development, particularly in context of the increasing reliance on broad delegated powers and Henry VIII provisions that should be tightly restricted.  The scrutiny of delegated powers must achieve a balance that gives the government the legislative flexibility intended by Parliament while providing accountability and transparency in the exercise of those powers.  While the scrutiny of regulations will always be a contextual exercise, a principled approach can provide an efficient and effective check on executive power that serves the public interest.

Lorne Neudorf is a Visiting Fellow at the Bingham Centre for the Rule of Law and Deputy Dean of Law and Associate Professor at the University of Adelaide. His research compares formal and informal parliamentary scrutiny of delegated legislation in Australia, Canada, New Zealand and the United Kingdom to learn from best practices and develop more efficient and effective scrutiny mechanisms.  The support of the Social Sciences and Humanities Research Council of Canada is acknowledged.

(Suggested citation: L. Neudorf, ‘Scrutinising Legislative Reform Orders: The Case of the Horserace Betting Levy’, U.K. Const. L. Blog (5th Dec. 2018) (available at https://ukconstitutionallaw.org/))

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The Fixed Term Parliaments Act 2011 removed the ability of Prime Ministers to call early general elections and handed that power to Parliament. Parliament has two options: a motion supported by two thirds of MPs (434 votes) that an early election should take place; or a motion of no confidence in Her Majesty’s Government, in the precise wording set out in s. 2(4) of the Act, carried by a simple majority, which is followed by a 14 day period in which the Commons can install a new government (or re-install the previous government) by a precisely worded motion of confidence.

The early election mechanism was used in 2017, on a motion put down by the government and supported by the opposition. The no confidence route has not yet been used but it is already having an important if paradoxical effect: some, including the former government Chief Whip, Mark Harper, argue that, despite what the government said at the time, the Act now constitutes the only way in which the House of Commons can declare its lack of confidence in the government, so that all the previous conventions about governments having to resign if defeated in a vote of confidence worded in a variety of ways or just declared by the participants to be a motion of confidence no longer apply. The argument is that the FTPA has replaced not only the previous method for calling a general election but also the previous method for replacing a government without calling a general election. The argument flows from the view that oppositions should not be permitted to move motions of confidence without risking a general election. Under the old system that risk existed because the government could choose between resignation and calling an election. Now, according to this view, because s. 3(2) of the Act abolishes any other way of dissolving Parliament, the old conventions would lead to governments having to resign with no prospect of an election, which would result in the possibility of risk-free motions of confidence. To avoid this result, supporters of Mr Harper’s view contend that the only possible method of declaring no confidence should be the one in s. 2(4) of the Act, a method that still carries the risk of an early election after the 14-day period.

Serious difficulties arise, however, if one adopts the view that the government cannot be changed except through the no confidence and 14-day process. First, as the Cabinet Manual illustrates, the doctrine still exists that after a general election an incoming Prime Minister must demonstrate that she commands the confidence of the House – usually by winning approval for a Queen’s Speech. What if, after an inconclusive election, the incoming Prime Minister loses on the Queen’s Speech? Will that now make no difference unless the Commons additionally passes a vote of no confidence? If so, what, apart from the inconveniences that flow from the Commons’ Standing Order 51 on Ways and Means motions, would be left of the requirement to pass a Queen’s Speech? No dissolution can follow, because of s. 3(2), but Mr Harper’s view implies that the Prime Minister would not need to resign either. The Queen’s Speech would have become irrelevant. That seems an unlikely consequence of the Act.

Perhaps more obviously, does the Fixed Term Parliaments Act mean that governments may no longer resign? If a government lost on supply, losing the Finance Bill or the Supply and Appropriation Bills, for example, so that at the end of the financial year the administration of the state would largely grind to a halt, would it have to carry on in office unless defeated on a no confidence motion? That seems very unlikely. And it seems just as unlikely that a government can no longer announce that it is treating a certain vote as a matter of confidence and will resign if defeated. Those involved the debate on the Fixed Term Parliaments Bill certainly envisaged that the government retained the power to resign (see e.g. P. Norton, ‘The Fixed-term Parliaments Act and Votes of Confidence’ (2016) 69 Parliamentary Affairs 3, 14).

Most fundamentally of all, does the Fixed Term Parliaments Act mean that the monarch no longer retains a reserve power to dismiss the ministry? As the Cabinet Manual points out, the last time a monarch exercised that power was in 1834, in circumstances that turned out to be something of a disaster. But the power is generally still acknowledged to exist, and it would be extraordinary for it to have been abolished purely by implication. Indeed, one can argue that without it the Fixed Term Parliaments Act itself could not work. What if, following a vote of no confidence, the outgoing Prime Minister sought to frustrate the formation of a new government within the 14-day period by the obvious method of refusing to leave office? The Act could only operate if the monarch exercised the reserve power to dismiss.

As a result, it seems wrong to treat the Fixed Term Parliaments Act as a comprehensive code not only for calling general elections but also for changing governments without an election. Governments can still be ousted by being defeated on the Queen’s Speech, can still threaten to resign if they lose on votes they specify as matters of confidence, and can still, ultimately, be dismissed by the monarch.

But that conclusion still leaves open a more practical question. How, outside the occasion of a Queen’s Speech, can an opposition put itself into government without risking a general election? What if the government says that it has adopted the view, regardless of whether it is correct, that no votes of confidence now exist except those mentioned in the FTPA and so will not allow any other sort of no confidence motion to be debated in government time? And what if it says that it will ignore any motions passed on opposition or back-bench days that do not use the magic words set out in the FTPA, for example a motion declaring that the House had ‘lost confidence’ in Her Majesty’s Government? The problem would be that the monarch would take some convincing that she should use her reserve power where doing so could lead to an impasse, with no one else being able to win the confidence of the House but no general election being possible.

But perhaps there is a solution in the newly rediscovered mechanism of moving humble addresses. A motion could be moved on an opposition or back-bench day in the form ‘That an humble Address be presented to Her Majesty, That she will be graciously pleased to dismiss her current ministers and to appoint X as Prime Minister’. If such a motion passed, the monarch could be confident not only that the current government had lost the confidence of the House but also that a specific person (presumably the Leader of the Opposition, but another person could be proposed) already commanded that confidence. In effect, we would find ourselves with the sensible rule in Article 67 of the German Basic Law that the Bundestag can only declare no confidence in one Chancellor by declaring confidence in another Chancellor.

No doubt this proposal would cause some trepidation at the Palace. No problem would arise as long as the sitting Prime Minister is an honourable person who would implement the House’s wishes without embarrassing the monarch. But what if the Prime Minister were not honourable? The basic principle the monarchy follows is that it should always take the least politically controversial course of action. The question would be, which would be less controversial – to defy the Commons or to accede to its request?

David Howarth, Professor of Law and Public Policy, University of Cambridge

(Suggested citation: D. Howarth, ‘How to Change the Government Without Causing a General Election’, U.K. Const. L. Blog (26th Nov. 2018) (available at https://ukconstitutionallaw.org/))

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The House of Lords Constitution Committee has today published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. (The first report in this series, concerning the preparation of legislation for Parliament, was published in October 2017; reports on the passage of legislation through Parliament and post-legislative scrutiny will be published in due course.) In this post, we highlight key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin from the unworldly premise that parliamentary delegations of law-making authority are inherently problematic; after all, they are, and will remain, a fact of life. The Committee does, however, adopt as its premise the position that the legitimacy of such delegations is governed by “constitutional standards” whose enforcement amounts to a “constitutional obligation” on Parliament’s part.

The Committee goes on to articulate two key principles by reference to which the legitimacy of delegations of power ought to be judged. First, it is “essential that primary legislation is used to legislate for policy and other major objectives”, with delegated legislation used only “to fill in the details”. Against this background, the Committee laments the “upward trend in the seeking of delegated powers in recent years”. Second, and relatedly, the Committee states that it is “constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken” — a phenomenon in which there has been “a significant and unwelcome increase”. Having thus nailed its colours to the mast, the Committee goes on to identify a suite of constitutionally dubious trends and practices to which its attention was drawn during the course of the inquiry and which it has itself discerned in recent years through its constitutional scrutiny of all Bills that reach the House of Lords.

First, the Committee draws attention to the increasing tendency “for bills to be introduced with broad or vaguely worded delegated powers that leave considerable discretion to ministers”, citing its earlier reports on the Cities and Local Government Devolution Bill, the Psychoactive Substances Bill and the Charities (Protection and Social Investment) Bill, the Immigration Bill 2015–16, and the Space Industry Bill. The Committee observes that the last of these “conferred around 100 delegated powers and that some fundamental policy choices would be made using the powers”. On this point, the Committee concludes that: “Where broad powers are sought, the Government should publish draft secondary legislation in time to allow Parliament to assess its potential.”

Second, the issue of “skeleton bills” are flagged up. Lying at the “extreme end of the spectrum of legislative uncertainty”, such Bills are characterised by “broad delegated powers [that] are sought to fill in policy details at a later date”. The Constitution Committee points to the Agriculture Bill, which is currently before Parliament, as a particularly egregious example, noting that the Delegated Powers and Regulatory Reform Committee had reported on that Bill in excoriating terms. Indeed, the DPPRC went as far as to state that “it cannot even be said that the devil is in the detail, because the [Agriculture] Bill contains so little detail”. The Constitution Committee concludes that skeleton bills “inhibit parliamentary scrutiny” and that it is “difficult to envisage any circumstances in which their use is acceptable”. If the Government does seek to use such Bills, it must “provide an exceptional justification for them” and “cannot rely on generalised assertions of the need for flexibility or future‐proofing”.

Third, the Committee addresses Henry VIII clauses: that is, clauses that authorise the making of delegated legislation that amends or repeals primary legislation. Increasing recourse to Henry VIII powers is noted, the Data Protection Bill being cited as a particular example. Repeating a view that it expressed in its report on the Public Bodies Bill, the Committee states that Henry VIII clauses represent “a departure from constitutional principle” and that such departures “should be contemplated only where a full and clear explanation and justification is provided”. The Committee goes on to say that such justification “should set out the specific purpose that the Henry VIII power is designed to serve and how the power will be used”, concluding that: “Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility.”

Fourth, a recent trend is noted concerning the interaction of (on the one hand) legislative powers delegated to UK Ministers and (on the other hand) the devolution settlements. For instance, as the Committee notes, the Digital Economy Bill “included a Henry VIII power that permitted primary and secondary legislation passed by the devolved legislatures to be amended by secondary legislation passed by the UK Parliament without the consent or involvement of the relevant devolved legislatures or governments”. The Committee has flagged the same issue in its reports on several other Bills, including the Space Industry Bill and the Sanctions and Anti‐Money Laundering Bill, and in correspondence with the Government concerning the Telecommunications Infrastructure (Relief from Non‐Domestic Rates) Bill. The Committee concludes in its latest report that: “Where UK ministers seek a power to amend devolved legislation, they must be subject to a statutory requirement to consult the relevant devolved administration.”

Fifth, the Committee expresses concern about the use of guidance (as distinct from delegated legislation) to fill in gaps in legislation, particularly where such guidance relates to significant aspects of the legislative scheme or represents the expression of a significant policy choice. Here, the Committee relies on its recent report on the Counter‐Terrorism and Border Security Bill. That Bill contains significant new powers to stop, search, question and detain people on the grounds of “hostile activity”. However, the concept of hostile activity is only vaguely and broadly defined in the Bill itself, while and the Government sought to provide reassurance by stating that guidance would be issued as to how the power would be exercised in practice. Noting that the draft code of practice was not published until the committee stage in the Lords was well underway, the Committee points out that “this meant that a crucial supporting document was not available to the House of Commons for the entirety of its consideration of the Bill” — a situation it considers to be “unacceptable”. On this point, the Committee concludes that: “Guidance is not legislation and should not be treated as such.” It follows that: “If there are policy lacunae in the legislation itself, it is unacceptable that guidance, which for the most part avoids parliamentary scrutiny, should serve to fill them.”

Scrutiny of delegated powers’ exercise

The Committee’s deep disquiet about the uses to which delegated legislation is put makes parliamentary scrutiny and regulation of secondary powers all the more salient. In addressing these questions, the Committee focuses upon three issues: the complexity of existing procedures, the level of scrutiny to which delegated legislation is subjected, and the relationship between Parliament’s inability to amend statutory instruments on the one hand and the nuclear option of rejection on the other.

The Committee expresses considerable concern with the multifarious, and at times bewildering, range of scrutiny procedures that lie at Parliament’s disposal, a complexity that grows as new forms of scrutiny emerge, often at the initiative of government itself. The Committee concludes that this proliferation adds unnecessary complexity. One recommendation is that the Government use “an existing model of the enhanced affirmative procedure in any future bill, when strengthened scrutiny is required, rather than creating a new variation.”

A more significant concern for the Committee is the extent to which these powers are scrutinised at all. It notes that the overwhelming weight of evidence received about the scrutiny of secondary legislation “was critical.” This failing was attributed by witnesses in particular to the House of Commons which has no equivalent to the Secondary Legislation Scrutiny Committee (SLSC) of the Lords. The Constitution Committee praises the SLSC for performing “a vital role in scrutinising whether delegated powers are being used for matters of detail not policy.” The Lords Constitution Committee is however aware that it is not its place, in constitutional terms, to make recommendations in relation to the procedures of the other House. Instead, somewhat diplomatically, it observes that: “The House of Lords undertaking important scrutiny functions without duplicating the work of the Commons is a good example of the complementary roles of the two Houses.”

Having highlighted the gaps in scrutiny of delegated legislation, the Committee turns to the power which Parliament has to regulate its creation.  It balances, on the one hand, evidence from prominent witnesses, including Lord Hope of Craighead who suggested that delegated legislation should be amendable, with, on the other, submissions, including from the SLSC itself, that such a process would be unworkable, largely due to the demands it would place upon parliamentary time. The Committee also notes the submissions given by David Lidington for the Government, seemingly with no hint of irony, that a power of amendment would blur the distinction between the primary and secondary legislative processes. In the end the Committee does not go so far as to propose the introduction of an amendment process for draft delegated legislation, but it does take the opportunity to emphasise that the lack of such a power “places a greater onus on the Government to respond to the concerns raised by parliamentarians, and to withdraw and re‐lay statutory instruments where appropriate.”

The Committee then turns to the only formal remedy available to Parliament for deficient secondary legislation — rejection. It is remarkable how rarely this option has been used: the Hansard Society has calculated that Parliament has only rejected 16 SIs out of over 169,000 (0.01%) since 1950 — 11 by the House of Commons and five by the House of Lords.

In this context, the Committee discusses the controversy surrounding the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 to which the Lords objected, prompting the Strathclyde review. The Committee reported on this review at the time and considered that its focus upon the Salisbury-Addison convention, and the balance of power between the two Houses of Parliament, was largely a distraction; the real issue being the efficacy of scrutiny itself and how Parliament holds the Executive to account. In its new report the Committee maintains its robust view that the Lords must be entitled to reject statutory instruments, particularly in light of current trends. If ministers attempt to use statutory instruments to give effect to significant policy decisions there needs to be proper oversight — and without a genuine risk of defeat, and no amendment possible, “Parliament is doing little more than rubber‐stamping the Government’s secondary legislation.” The Committee concludes bluntly: “This is constitutionally unacceptable.”

Concluding remarks

The Committee’s report lays out detailed examples of the ways in which Government now uses delegated powers to allow it not only to fill in policy details but in fact to make and implement policy in the future; a trend that is growing in legislation relating to Brexit. The Committee is blunt in recognising that these trends, illustrated by the rise of skeleton bills and the use of Henry VIII powers to create criminal offences and establish public bodies, represent a shift, by stealth, in the balance of constitutional power towards the executive: “it is unacceptable that the delegation of power is seen by at least some in the Government as a matter of what powers they can get past Parliament.”

The constitutional concerns which this raises are exacerbated both by the limited scrutiny to which these powers are subjected and by Parliament’s lack of ultimate control. On the former issue the Committee is careful not to criticise the dearth of scrutiny in the Commons. A crucial point should, however, not be missed. The chamber with greater democratic legitimacy should surely have a more robust mechanism with which to review, bill by bill, the disturbing trend by which Parliament effectively abdicates many of its law-making functions to the executive.

As to parliamentary control of delegated powers, while the Committee does not recommend the introduction of an amending power, it is aware that without such a power Parliament is left potentially emasculated by the use of SIs to give effect to policy initiatives. In this context all that is left to Parliament is the ultimate power of rejection. While noting the deferential approach which Parliament in general, and the Lords in particular, has hitherto adopted in relation to this nuclear option, the Committee’s warning is clear: “If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained.” Far from accepting the suggestion that the second chamber has no legitimacy to resist the misuse of delegated powers, the Committee strongly reasserts that the House of Lords has a constitutional duty to do so.

Mark Elliott is Professor of Public Law at the University of Cambridge and a Fellow of St Catharine’s College, Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They both serve as Legal Advisers to the House of Lords Constitution Committee. However, they have written this post in their purely personal capacities.

(Suggested citation: M. Elliott and S. Tierney, ‘House of Lords Constitution Committee Reports on Delegated Powers’, U.K. Const. L. Blog (20th Nov. 2018) (available at https://ukconstitutionallaw.org/))

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Northern Ireland employment law is a devolved issue and its statute book has always been largely distinct and separate from that applicable in GB. This always had the potential to allow for NI-specific protections of EU-derived labour law rights post-Brexit, as I have suggested on other occasions. Had there been political consensus in the Northern Assembly on this issue it might have been done there, but once the DUP stuck rigidly to its approach to Brexit that was always unlikely. What has emerged, however, is that the Protocol on Ireland/Northern Ireland to the Draft Withdrawal Agreement – in seeking to create a literal and notional ‘customs space’ applicable to NI alone – has offered up a number of features which will, I suggest, have the effect (if the Deal is agreed!) of entrenching some EU-derived labour law rights as they apply in NI.

The Protocol on Ireland/Northern Ireland: A ‘floor’

The Protocol states that its provisions ‘shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement’ (Protocol, Article 1 para 4, p307). This means that despite the statement that it is ‘temporary’, the Protocol would continue in force until something else took its place. On the basis that it was negotiated to avoid the ‘hard-border-on-the-island-of-Ireland’ issue by creating a deeper relationship between NI and the EU than for the rest of the UK, it would seem unlikely that the terms of the Protocol would be superseded by a later Agreement that would water those terms down. On that assessment, the Protocol is intended to be a statement of the minimum legal rights that would apply between NI and EU post-Brexit – a ‘floor’ of rights, if you will.

‘Entrenching’ EU equality law

This Protocol guarantees ‘no diminution of rights, safeguards and equality of opportunity’ as set out in the section of the Good Friday Agreement entitled ‘Rights, Safeguards and Equality of Opportunity’ including ‘in the area of protection against discrimination’ those rights set out in Annex 1, and the Annex lists 6 key EU legislative enactments underpinning equality law. The UK would then undertake to implement this commitment through ‘dedicated mechanisms’, which presumably would be statutory enactments giving domestic effect to this commitment. There is nothing new in the restatement of the GFA protected rights, in my view, but there is something novel in the inclusion of the EU law enactments listed in Annex 1. These include the Race Equality Directive and the Employment Equality Directive, for example. Their inclusion in the Protocol in this way, means that they cannot be diminished or diluted as long as the Protocol is in force. Presumably, this guarantee would manifest itself in a specific domestic statutory limitation on the legislative powers of the Westminster Parliament and of the Northern Ireland Assembly. In this way, any legislative attempts to reduce these rights would be outside the competence of those legislative bodies.

This protection appears to be unlimited in time, in the sense that it is not pegged to when the transition ends. In that sense, to put the matter very simply, these six Directives would apply in NI law in perpetuity.

And there’s more: ‘Entrenching other employment law rights’ in NI

There are further protections of ‘Labour and Social Standards’ in the Protocol, however. Annex 4 Part 3, Article 4,(p360) prevents the diminution of common labour and social standards below the common standards applicable in the EU, at the date of the ending of the transition period. Article 6 of the Protocol states that ‘With a view to ensuring the maintenance of the level playing field conditions required for the proper functioning of this paragraph, the provisions set out in Annex 4 to this Protocol shall apply.’ This the Protocol refers to as the ‘non regression of labour and social standards’.

This would have the effect of ensuring that the standards as regards ‘labour and social protection and as regards fundamental rights at work, occupational health and safety, fair working conditions and employment standards, information and consultation rights at company level, and restructuring’ that were in place at transition would remain applicable post-transition. This appears to ‘ring-fence’, in NI law, a wide range of EU-derived labour law rights. It would include things like the Working Time Regulations, to pick an obvious example. And if the Protocol continues without any further Agreement superseding it, it would mean that those rights would continue in perpetuity, albeit in the state in which they existed at the date of transition. As the UK would have committed itself to implement these undertakings through ‘dedicated mechanisms’ as mentioned above, one can presume that this aspect of the Protocol would also appear in domestic legislation in the form of limits on the legislative competence of Parliament and the NI Assembly, though the ‘entrenchment’ of these rights would only be as to the ‘proper functioning of the single customs territory’. This limitation of the protection to the functioning of the single customs territory might mean that workers in the haulage industry, for example, might benefit, but that one might see an argument that the protection of those rights did not apply to persons who worked in service occupations that had no contact or connection with the single customs territory (because they were not involved in the ‘goods’ economy). However, enacting legislative changes to these guaranteed common labour standards so that would apply only to workers in the (pure) services industries would be a difficult and complicated exercise and the NI Assembly (or Parliament) might not consider it worth the effort.

And what about the post-transition day labour law rights?

The Protocol does not address the status of labour law rights that are created post-transition, even those that relate to the ‘proper functioning of the single customs territory.’ This seems an odd omission, as it appears to allow divergence – in a post-transition world – between labour standards in NI and the EU even in relation to the making, sale and supply of goods. One would have thought that this was anathema to the EU as opening the possibility in the future of NI distorting the ‘level playing field’ in relation to the operation of the customs territory on which the EU was so keen.

Reducing this dense legal text to some key messages, I suggest the following short-hand analysis:

‘Headline thoughts’

  1. Certain EU equality law enactments will continue in NI law in perpetuity.
  2. EU-derived labour law rights relating to the ‘single customs territory’ in existence on ‘transition day’ will last in perpetuity in NI law also.
  3. EU-derived labour law rights created after transition day would not have to be observed in NI law.

The ‘entrenchment’ of these EU-derived equality rights, with their roots likely to be in an international treaty incorporated into domestic UK law, will be a significant and singular feature of the NI constitutional landscape, with very long-term implications indeed.

Ciaran White is a Senior Lecturer in Law at the School of Law, Ulster University and a Barrister at Law at the Bar of Northern Ireland.

Suggested citation: C. White, ‘Northern Ireland Workers’ Rights and the Draft Withdrawal Agreement: The Quasi-constitutional Entrenchment of EU-derived Labour Law Rights’ U.K. Const. L. Blog (19th Nov. 2018) (available at: http://ukconstitutionallaw.org))

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Now that a draft withdrawal agreement has been settled with the European Commission, the next step is a ‘meaningful vote’ in the House of Commons pursuant to s 13 European Union Withdrawal Act (‘EUWA’) which I analysed recently on this blog with Gavin Phillipson. This post seeks to explore what the Prime Minister might do if the draft agreement is voted down. Three potential scenarios are suggested. The theme of this post is that the ripple effects of the Fixed-term Parliaments Act (‘FTPA’) mean that previously accepted constitutional norms may have been affected and it may be helpful to explore what could happen as a result.

Scenario 1 – Theresa May resigns as party leader but not Prime Minister

If Theresa May were to lose the “meaningful vote” on her proposed agreement, a central plank of her premiership will have been rejected by her party and by the House of Commons. As I have argued elsewhere with Gavin Phillipson, it is likely that a “clean” vote without substantive amendment would be necessary.

Historically, it is likely that the loss of such a vote would have meant going to the Palace to precipitate a General Election but the FTPA now prevents that. One alternative is resignation as party leader not as Prime Minister. 23 years ago, John Major decided to resign as leader of the Conservative Party without resigning as Prime Minister in order to face down critics in his own party, telling them to “put up or shut up”.

Mrs May might consider that one key advantage of resigning as leader but not as Prime Minister is that it would likely prevent the leader of the Opposition, Jeremy Corbyn, from somehow moving in to Number 10. This is because she could carry on as caretaker Prime Minister until a new Conservative leader was chosen and that new leader would be very likely to command the confidence of the House of Commons given the parliamentary arithmetic.

It will be recalled that the confidence and supply arrangement with the DUP is with the Conservative Party, not the Prime Minister. Furthermore, the terms of paragraph 2.18 of the Cabinet Manual would arguably apply because that alliance officially has an overall majority.

Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Conservative party leadership process

A Conservative party leadership contest is now governed by their internal party procedures (see this House of Commons library paper and here for a short summary). It may seem strange to be considering the internal rules of a political party in a constitutional law blog post but it must be remembered that, as Griffith pointed out, the constitution is ‘what happens’ and ‘everything that happens is constitutional’. In the modern era, large political parties dominate the House of Commons and the confidence of the House is now umbilically linked to who leads those parties. Consideration of Conservative party leadership election rules is therefore unavoidable.

The first point to make is that Mrs May could not fully replicate the John Major precedent because she could not resign as leader and then stand in the resultant contest against alternative candidates within the current party rule structure. There is therefore no “back me or sack me” option except perhaps by way of a non-statutory vote of no confidence of the whole House which would be a quite different matter (see below). The second point is that the Conservative leadership process is designed to whittle down candidates to a final pair who then put themselves to the general party membership for a final vote. In theory, this could take a considerable period of time – which may not be a luxury available to the country.

Fortunately, Mrs May’s own victory in the last Conservative leadership election is a good precedent whereby a clear winner amongst MPs could lead to the immediate withdrawal of the second candidate from the final ballot of party members. The entire process took 17 days. The internal rules, therefore, appear to leave considerable room for recognition of more pressing political realities.

More difficult would be if the two final candidates secure roughly equal votes amongst MPs or if the candidate with fewer votes believes the ordinary party members would prefer them as Prime Minister – perhaps due to his or her Brexit stance – and therefore refuses to withdraw. In those circumstances, it is to be hoped that the relevant grandees would bring about a seriously curtailed timetable. Party members are likely to be well informed in any event as to the candidates. It is suggested that such a ballot could, and with respect should, be organised within a far shorter period than is perhaps envisaged during a normal party leadership election process.

As an aside, the British system is grounded in representative democracy and the doctrine of confidence. It is unfortunate that MPs from both major parties have abdicated their representative responsibilities on this most crucial issue. How is it possible that a leader who does not command the confidence of the majority of the party MPs (and therefore of the House in fact), could ever be Prime Minister? Edmund Burke must be spinning in his grave.

Scenario 2 – The Prime Minister resigns

The forthcoming vote of MPs on the draft agreement needs every possible vote in its favour if it is to succeed. One of the weapons available to Mrs May would be to threaten to resign immediately as Prime Minister if she loses the vote. Under the FTPA, resignation is the only option because she cannot call an election. Such threats to resign must be believable to be effective and if she loses, she may feel resignation is unavoidable. In addition, the fact that her central policy has been rejected could lead her to the view that she is honour-bound to resign as Prime Minister – not just as party leader as in Scenario 1. Either way, we must consider what could happen if Mrs May resigns as Prime Minister.

The 2010 precedent

Some appear to think that the Queen must call the leader of the opposition if the Prime Minister resigns, or that she has some discretion as to what to do in such circumstances. This is mistaken. It is not clear exactly when understandings changed but there is a clear precedent. After the 2010 election, there was some uncertainty as to who should go to the Palace as negotiations were ongoing. The Palace made it crystal clear that it would not get involved under any circumstances. It was and remains

the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. (Cabinet Manual [2.9]).

This unfortunately left Gordon Brown in a fairly awkward position in 2010 where he was forced to stay in post whilst negotiations proceeded – indeed, some think he still resigned too early. Whilst this was difficult, it was essential due to another core principle of the constitution: Her Majesty’s Government must always be carried on. To put it more bluntly: there must always be a Government. Technically, the Prime Minister becomes a caretaker prime minister (Cabinet Manual [2.20]) when there is doubt over the continued confidence of the House of Commons (see further this Select Committee report, section 3).

In such circumstances, there are clear limitations on a caretaker Prime Minister’s freedom of action until a new mandate is secured – those restrictions mirror those that occur during the purdah period [Committee Report para 21] when a General Election is triggered. These restrictions are constitutionally necessary precisely because the confidence of the House of Commons – the sole source of Prime Ministerial authority – is arguably absent. Parliament and Prime Minister are inextricably intertwined in the UK’s political constitution, as Bagehot famously pointed out. That is why the ripple effects of the FTPA have spread so far. It is an error to claim that elections to Parliament and the tenure of a Prime Minister are wholly distinct issues.

It is suggested, then, that responsibility now rests solely with the politicians to decide who should go to the Palace. Her Majesty will rightly refuse to do anything except confirm whoever eventually emerges from the political maelstrom. The politicians must sort it out.

Some say the outgoing Prime Minister can, or should, advise on whom to call at the moment when they formally resign. I respectfully disagree. A Prime Minister who has lost the confidence of the House must lose the general right to advise the Monarch. It arguably follows that the outgoing Prime Minister cannot advise who should then be called to the Palace. Further, such advice would arguably constitute a major policy decision that falls outside their limited ”caretaker” role. It is submitted that the decision is a matter for MPs in the House of Commons.

In the event of a Prime Ministerial resignation, therefore, someone must be chosen by the politicians to replace her. There is, at least at the time of writing, a deal in place between the DUP and the Conservative party. The starting point, therefore, must be that someone – preferably without leadership ambitions themselves – should be nominated to act as a caretaker Prime Minister whilst a leadership election takes place (Cabinet Manual [2.18] – see above). The obvious candidate would normally be the Deputy Prime Minister, if there is one.

That candidate could announce to the House that following discussions with colleagues, he or she would go to the Palace until a new leader of the party was formally chosen. The situation would then be similar to Scenario 1 except Mrs May would not be the caretaker Prime Minister.

Alternative government

It is possible to envisage an alternative pathway. The Leader of the Opposition (or someone else) could, say, promise to organise another referendum. In those circumstances, what might be termed a “Conservative Remainer” caucus of MPs might hypothetically agree a “confidence and referendum” agreement – rather than the more common “confidence and supply” agreement – with a majority of Labour MPs. They would be unlikely to approve any domestic policy proposals and no doubt any such referendum would need to be organised as quickly as possible. This assumes the EU would grant an extension under Article 50(3). In those circumstances, the leader of this alternative Government could claim the right to go to the Palace.

In none of these scenarios would the Queen be involved in any way save the formality of appointment.

Scenario 3 – The Prime Minister carries on

Whilst it seems unlikely, it is entirely possible that if the meaningful vote is lost, Mrs May could continue in office. Some take the view that the FTPA now means that only a formal statutory vote of no confidence requires the Prime Minister to resign. This includes, for example, Mark Harper MP, former Conservative Chief Whip (see his recent evidence to the Public Administration and Constitutional Affairs Committee from: 15.37.28. Transcript here @Q195). If the meaningful vote was lost, Mrs May could argue that there is no time for a leadership election or general election and she must go back to the EU and attempt to renegotiate.

If Mrs May did attempt to carry on, it is possible that Conservative MPs could precipitate a leadership election through their internal procedures. If Mrs May survived that process, she would be safe for a year. If she lost, then we would be back in Scenario 1.

Vote of no confidence

The next potential situation could be that the Opposition bring a motion claiming that the House has no confidence in the Prime Minister because she has lost the meaningful vote under s 13 EUWA but has not resigned. This could be done via a statutory motion under the FTPA or by a non-statutory motion. If a non-statutory motion were chosen and the Prime Minister lost, that could lead to Scenario 2 again if Mrs May decided the loss of a straightforward vote of no confidence meant she ought to resign, even though the motion was non-statutory.

Matters are a little different if there were a statutory vote of no confidence under s 2(4) FTPA. The motion must be in the following form.

“That this House has no confidence in Her Majesty’s Government.”

The first point to make is that the Prime Minister could win. In those circumstances, she would then be able to continue in office until 2022 unless there were an internal leadership election in her party or a successful vote of no confidence.

If the Prime Minister lost a statutory vote of no confidence, then a 14 day period would ensue before an automatic general election is called. A general election will only be prevented if a vote of confidence in Her Majesty’s Government is secured within 14 days. In theory, due to the uncharted waters caused by the FTPA, Mrs May could carry on and seek such a vote of confidence in order to continue in office. Alternatively she might resign. If so, a caretaker candidate could be nominated and they could then seek a statutory vote of confidence within 14 days. If successful, they could then carry on as caretaker whilst a full leadership election took place in the Conservative party.

Alternative government

It is possible that if a statutory vote of no confidence is lost by Mrs May, an alternative potential Government could form, following an agreement with a putative Conservative Remainer caucus (as above). At this point it is necessary to highlight a further drafting issue in the FTPA, first highlighted by Gavin Phillipson.

Section 2 (5) FTPA states that a motion in the following terms must be passed.

“That this House has confidence in Her Majesty’s Government.”

The problem is that such an alternative slate would not technically be “Her Majesty’s Government” because the leader of the alternative government would not yet have been appointed as Prime Minister. One potential solution might see a three step process. The first step would be that a non-statutory motion would be passed expressing the confidence of the House in the alternative potential Government. This would be a direct analogue of an “Investiture Vote” for which the Political and Constitutional Reform Select Committee persuasively argued in their 10th report of 2014-5 at [61].

The leader of the alternative Government would then be in a position to claim the right to go to the Palace as the person best placed to command the confidence of the House. The incumbent Prime Minister would be expected to resign (Cabinet Manual [2.19]). Once appointed as Prime Minister, and as long as 14 days had not passed, a statutory vote of confidence could then be sought and a general election would be prevented if it passed.

Conclusion

This post has sought to map out three potential scenarios if the meaningful vote in Parliament under s 13 EUWA is lost by the Prime Minister. It has argued that there is no longer any role for the Queen in any part of this process except to confirm whoever has demonstrated that they possess the confidence of the House of Commons. It has also been suggested that matters have been perhaps unnecessarily complicated by the ripple effect of the FTPA. Many will recall that the FTPA is so unpopular in the House of Commons that, for example, the latest Conservative party manifesto is committed to repealing it.

The author would like to thank Gavin Phillipson, Petra Schleiter, Jack Simson-Caird, Graeme Cowie and Tom Poole for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig, PhD Student, Durham University

(Suggested citation: R. Craig, ‘What Happens Constitutionally If the Draft Withdrawal Agreement Is Voted Down?’, U.K. Const. L. Blog (16th Nov. 2018) (available at https://ukconstitutionallaw.org/))

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