Supremely Troubled



As we’ve said many times before, if there is one thing Brexit has exposed, it is the fragility of the UK’s (uncodified) constitution. What we’ve always been dependent on is the Executive behaving appropriately and not playing fast and loose with the conventions that underpins the UK’s constitution. More on this below, plus the state of the negotiations and the impacts of no-deal on citizens’ rights.

Jacob Millen-Bamford

In Politics

Supreme Court Case on Prorogation

  • The Supreme Court is deciding “whether it was lawful for the Prime Minister to advise the Queen to suspend Parliament”

  • The UK government argues decision is outside courts remit as it is "political"

  • Lord Pannick argues the courts can and should intervene and the effect of prorogation is preventing Parliament from scrutinising the Executive

The question of where power lies was brought again to the fore this week with the Supreme Court hearing appeals on the lawfulness of the prorogation of Parliament. This court case in the Supreme Court is hearing two appeals. One from the government who are appealing the decision, made in the Scottish Court of Session, that the prorogation is illegal. The other is Gina Miller appealing the decision, made in the High Court for England and Wales, that the courts should not be involved in deciding this issue as it is “political”.

The Supreme Court is deciding “whether it was lawful for the Prime Minister to advise the Queen to suspend Parliament”.

The government is arguing that the Scottish court went outside of its remit and should not be getting involved in “political” decisions.

Lord Pannick, on behalf of Gina Miller argued first that the case is “justiciable” which means that the court can and should take a view on the issue and it is appropriate for the Supreme Court to rule on the lawfulness of prorogation. Secondly they are arguing that the effect of the 5-week prorogation is to prevent Parliament from legislating on or scrutinising Brexit (and anything else) at a time when it ‘self-evidently’ wishes to do so. This, they argue, is in opposition to Parliament being sovereign and the Executive accountable to it.

Alliance member, the Public Law Project intervened in the case arguing that the advice of the PM was unlawful as he “did not consider the impact on Parliament’s ability to scrutinise the secondary legislation required for an orderly Brexit”. Read more from them on their intervention here.

Lord Pannick said during the hearing that “The basic principle is that parliament is supreme. The executive is answerable to parliament...This is a unique case. It has never before occurred”. It is indeed a fundamental case, one which will have huge impact on the constitution. Whichever way the judges rule, it will fundamentally rule on where power lies- is it an invalid use of prerogative power for the Prime Minister to exercise it to avoid parliamentary scrutiny, does the government have unfettered powers to do whatever it sees fit or is it ultimately Parliament that is sovereign and who the Government is accountable to? The answer to those questions will come early next week.

If the prorogation is ruled as unlawful then technically Parliament was never suspended and this allows MP’s to sit. This has two key effects. First the legislation that fell, outlined by the BBC, due to prorogation would continue, as does normal business in the Commons meaning potential for more Brexit debates and legislation. Secondly, scrutiny which was suspended, such as Parliamentary Questions, statutory instruments and Select Committees, can continue.

Brexit Negotiations

  • EU leaders hadn't seen any new solutions from the UK government

  • UK has now sent "non-papers" with ideas that are not official policy

  • UK refusing to share documents with EU to as UK worries about leaks

This week the Prime Minister has been to Europe to continue talks on his deal he intends to bring to Parliament after the EU council meeting on 17-18th October.

On Monday he headed to Luxembourg to meet with the European Commission President Jean-Claude Juncker and Luxembourg Prime Minister Xavier Bettel. Both meetings ended poorly with the leaders saying the UK had brought nothing new to the table. Johnson skipped doing a press conference with Bettel leading to infamous images of a missing Prime Minister at what was meant to be a joint press conference.

The government said this week it would not send proposals for a deal to the EU, claiming they would be leaked. This is after EU leaders repeatedly said they have yet to see anything new from the Prime Minister for proposals to get through the impasse.

The government has since submitted “non-papers”, which means it is not their official position but a series of potential ideas. A spokesman for the UK government describes them as “confidential technical non-papers which reflect the ideas the UK has been putting forward”. There are key questions here as to what solid plans the government does have, when they plan on publishing them, and how will the EU respond. All while the clock continues to countdown. Parliament will have less than two weeks to scrutinise any potential deal brought back from the EU Summit. Refusing the publish these proposals for a deal further reflects the government's continued desire for minimal levels of scrutiny.

In Policy

No-deal and Citizens Rights

  • Government intends wide-ranging use of secondary legislation

  • Wants to end Freedom of Movement in no-deal

  • No appeals process for settled status applicants

The Labour MP Paul Blomfield published a reply he received from James Duddridge MP, Permanent Under Secretary of State for Exiting the European Union in the Department for Exiting the European Union. It can be found on his twitter here. It is worth a read.

There are several key takeaways from the reply from James Duddridge MP.

  1. Confirms the government intends to make wide-ranging use of secondary legislation in the event of a no-deal. States they have used them already for policy related to EU citizens

  2. Confirms it aims to end Freedom of Movement if the UK leaves the EU with no-deal on the 31st October 2019

  3. States that until December 2020, EU citizens should use their passport or national identity card to take up employment and rent property

  4. Confirms that there will be no appeal process implemented for settled status in the event of a no-deal. There will only be administrative or judicial review

In no-deal the government shouldn’t be able to repeal FoM without primary legislation. The Immigration Bill that has now fallen due to prorogation and therefore it implies the government will rely on secondary legislation. This is not possible as outlined by Alexandra Sinclair which leads to confusion to how the government intends to end FoM without primary legislation.

The letter confirms concerns organisations have about settled status with the lack of appeal process, and difficulty in proving you have residency and employment rights.

The government responded to Blomfield’s original letter a few days before the Benn-Burt bill received Royal Assent. It is nonetheless concerning the government’s continued assumption was that the UK will leave with no-deal on the 31st October, despite Parliament’s clear intention to legislate to the contrary and place a legal requirement on the PM to ask for an extension.

Settled Status Progress

  • Only 38% of estimated eligible applicants have applied for settled status

  • iPhones still can't use the app

  • Large scale accessibility issues including difficulty reaching scanning centres

The House of Commons Library has also published an insight into the progress of the settled status scheme. View it here. The data within produces questions about the accessibility of the scheme.

First only 38% of the estimated eligible applicants have applied. This leaves huge numbers of citizens who have not applied. It leaves questions around who the government is reaching. With the application rate is so low why are citizens not applying? How is the government reaching vulnerable groups who either have not heard of the scheme or have difficulty applying?

A second key concern about accessibility is the large blank spots across the UK in accessing the scanning centres. These are needed as many people cannot use the app, whether it's because they own an iPhone (the scanning feature is still unavailable) or because they have no access to a compatible Android phone. This map shows areas covered by a 60 minute drive (one way). Half of Northern Ireland, half of Sheffield, most of east England, everywhere in Scotland above Perth, half of Cornwall, most of Wales and the entirety of the Isle of Wight all are further than a 60 minute (one way) drive to a scanning centre. This is a clear accessibility issue for the estimated 3 - 5 million EU citizens who have the right to apply for settled status.

In Events

Equality and Human Rights Commission are Hiring

Recommended Reading

  • David Guake on his views of the way forward in Brexit here

  • Do people want a General Election? LSE explores here

  • Wales promises £2 million for food banks if there is a no-deal here

  • Katy Hayward has written for UK in a Changing Europe on weighing up Alternative Arrangements here


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