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Another seismic week, one in which it turns out Parliament was never suspended. The unanimous Supreme Court decision declared the prorogation as unlawful. Meanwhile, the EU is increasingly sceptical that a workable deal will be presented by the UK.

Supreme Court Judgement 

  • Prorogation ruled unlawful, void and of no effect

  • President of the Supreme Court said the effect of prorogation on the fundamentals of our democracy ‘was extreme’

This Tuesday the Supreme Court of the United Kingdom ruled unanimously (11-0) that the Prime Ministers decision to prorogue (suspend) Parliament was unlawful. The immediate effect of this was to null the prorogation, therefore, meaning Parliament was still sitting.

The court ruled this was unlawful because the effect of prorogation was to frustrate and prevent Parliament from carrying out its scrutiny role on the Executive.

The core argument of the court was that ‘A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.’

The focus of the court was not on Johnson’s intentions but on the effect of his actions. The length of prorogation and unique time of political change are what persuaded the court that the propagation was preventing Parliament from fulfilling its scrutiny role.

The long term effect of this ruling is that it has enforced in law, rather than convention, Parliament’s role in holding the government to account. As Raphael Hogarth at the Institute for Government explains the courts will protect this in future if it is threatened by a future government. This asserts the balance of power between the Executive and Legislature and will have effects on many governments to come.

The other effect of this result is that because Parliament was never prorogued all the bills that fell, such as the Brexit bills are now revived, having technically never fallen in the first place.

MP’s have since returned to the Commons, however, the business of the House has been sparse and no Brexit bills have been given time. It is unclear how the MP’s will use this time in regard to Brexit, especially if the key Bills are not being debated. However, there is speculation the anti-no-dealers will try and tighten the “Benn-Burt” Act to prevent any wiggle room by Johnson but we wait to see if this is true.

Read the summary of the Supreme Court judgement here.
Read the full judgement here.

EU Negotiations: is a deal in sight?

  • EU is growing increasingly sceptical of the UK government bringing anything new and practical or being able to pass it

  • Not enough time to implement the Brexit deal in domestic law

In the latest in negotiations between the UK and the EU, the EU is growing increasingly sceptical of the UK government bringing anything new and practical or being able to pass it.

The UK has submitted more papers this week, such as their 4th technical paper building on its agri-food alternative to the backstop, however, the EU remains unconvinced. Meanwhile, the politics in the UK has taken a turn for the worse when it comes to a deal passing. Remember, the government not only need to put any agreement to a ‘meaningful vote’, but they also have to pass an Act of Parliament to implement a deal. Time is incredibly short (11 sitting days between 19th and 31st October) to pass what will likely be a momentous piece of legislation- both constitutionally and politically. As we’ve been saying for quite some time, not only does that short timeframe present significant problems for proper scrutiny- the government is reliant on a stable majority to pass the implementing legislation.

Multiple news organisations have reported that the EU has watched the political fight over prorogation and the courts with concern. They believe that Johnson’s prorogation tactic has defeated any chance of Labour MP’s supporting a deal he may present. Alongside this the “Benn-Burt” Act requires an extension so MP’s can’t be scared into voting for a deal. Negotiations between the UK and EU continue to stall, the UK government is focused on its own domestic campaign and the EU is ever sceptical about the documents presented and the ability for a deal to actually get through the Commons.

In Policy

Conference Season: Brexit battles

  • Labour and Lib Dem adopts new policy positions during party conference season

  • A hung parliament with Labour, Lib Dem and SNP could make a second referendum more likely 

Brexit is a big issue at the party conferences this year. Shocked I’m sure.

Labour had its party conference this week and passed a motion affirming the Labour Brexit policy as

  1. Securing a new deal with the EU within three months of getting in power

  2. A referendum with the choice between Remain and their deal within six months

The details, in the motion passed, about the contents of a Labour party deal include “a new UK-EU customs union, a close relationship with the Single Market, protections of the Good Friday Agreement with no hard border, securing the permanent rights of 3 million EU nationals in the UK and 1 million UK nationals in Europe, guarantees of workers’ rights and environmental protections, and membership of key bodies to ensure join cooperation in areas like climate change, counter-terrorism and medicines.”

This followed a controversial vote on the conference floor but was declared the winning motion among the votes. It is now Labour’s Brexit policy.

Last week the Liberal Democrats passed a policy of revoking Article 50, if the party won a majority of seats in the Commons. This pushes the Lib Dems to a stronger Remain position than previously.

However, despite Conservatives, Liberal Democrats, and Labour all at similar levels in the polls, the First Past The Post voting system means we are incredibly unlikely to have a Liberal Democrat majority in the Commons after the next election. But it does mean that we inch closer to having a second referendum. In a hung Parliament with Lib Dems, SNP and Labour all pro-second referendum there is potential for an agreed position there to get through the Brexit gridlock after a general election.

The Conservatives were denied a small recess of Parliament for their conference, due to be held next week, by MP’s who voted against the government's request. However, their conference will go ahead but with Conservative MP’s having to split their time between London and Manchester. Keep your eye out to see what deal Johnson may talk about as it comes before the EU council on the 17th - 18th October

Can the government bypass the ‘Benn-Burt Act’? 

  • The short answer is no, the government cannot bypass the ‘Benn-Burt Act’ to avoid seeking an extension to Article 50

A central question since MPs pass the legislation to extend Article 50, has been whether the Prime Minister will, in fact, comply with it. It says something about the times we live in when this is something we even have to contemplate. In any case, constitutional experts say there aren’t any loopholes the government can exploit to avoid seeking an extension to Article 50.

Some has speculated the government could use the Civil Contingencies Act 2004 to amend or repeal the Benn-Burt Act. David Allen Green, law and policy commentator for the FT has confirmed that the government cannot use the Civil Contingencies Act, that would be an improper use of the Act and likely to be challenged in the courts. Another possibility floated is whether the government may attempt to use an Order of Council to suspend the Benn- Burt Act. Mark Elliot, Professor of Public Law at the University of Cambridge reckons there is no sound legal basis for doing so. Using prerogative powers to suspend an Act of Parliament would also be contrary to fundamental constitutional principle- that primary legislation enacted by Parliament takes precedence over the prerogative. No matter how smart the government may try to be about this, failing to comply with the rule of law is not something you can spin your way out of.

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