ANDREW FARRAN. UK Supreme Court thwarts Boris’ sneaky exit from the EU

Sep 25, 2019

The implications of the UK Supreme Court’s decision in holding the Boris government’s Prorogation of Parliament as unlawful, null and void, have far reaching implications for the Westminster system both in the UK and elsewhere. As for Brexit, the decision has made a UK exit from the EU by 31 October without a deal less likely, and more in accordance with legitimate process.

Does the unanimous and unprecedented decision of the UK Supreme Court declaring as improper and unlawful the use of the Prerogative power by the Johnson government to prorogue Parliament for 5 weeks to stymie Parliamentary scrutiny of the Brexit process make the UK’s exit from the EU without a deal more or less likely? The decision which upholds Parliamentary sovereignty, the separation of powers and the tenets of responsible government, has profound implications for all countries that govern under the Westminster system, both in the UK and not least Australia. While there is still much water yet to flow under the bridge, in this writer’s view a no-deal exit is now less likely. Will a discredited Boris Johnson government try this move again, albeit more correctly, to run down the clock until 31 October, and again seek to stymie Parliament’s scrutiny, or will they have more regard this time for the proprieties around the process as explained by the Court?

In holding that the issue before it was justiciable the Court was recognising that without appropriate intervention, the separation of powers in the UK would remain a fiction and ultimately unenforceable. The matter was not purely political, it was legal and constitutional – the latter derived from a bundle of statutes, the Bill of Rights, written and unwritten conventions, decrees, rules and practices accumulated down the ages. The Settlement of 1689 had in effect remained unsettled formally. While this pointed to a need for a written constitution (the Court appears not to have made that explicit) the implications of the case made that clear.

Prime Minister Boris Johnson and his advisers had clearly believed and calculated that bluff and bluster, and legal uncertainty, would enable his minority government to push its way through all institutional obstacles to leaving the EU without a deal by 31 October. The purpose of the Prorogation was intended in that context to prevent Parliament from interfering with the Executive’s policies and avoid scrutiny of those policies, in particular Brexit, over an excessively long period – some 5 weeks. As observed by The Financial Times correspondent, Philip Stephens (20 September): ‘The government’s lying reveals a profound disdain for the traditions, institutions and laws that sustain Britain’s Parliamentary ecosystem…Strip democracy of trust, self-restraint and shared truths and what remains is a majoritarianism of the mob’.

The PM’s political embarrassment at being seen by the nation’s highest court to have advised the Queen to act on a basis of an unlawful or improper purpose, as never before, would surely cause him to proceed more prudently and circumspectly over all further stages of the Brexit process. To crash out on the 31 October would furthermore, in the face of a Parliamentary prohibition, close off a number of other more acceptable options for which there is growing support in the electorate, namely a deal or Remain. Boris’ guru, Dominic Cummings, had stated before the Court decision that it would be a ‘complete calamity’ if it went against them, which is a pretty good indication of what they had in mind for their next steps had they got their way. Now there are calls from the other parties for Boris to resign. But if he did this would risk crashing out without a deal.

The Court limited itself to a mere Declaration, without prescribing remedies which could lead to a further legal challenge and further delays as the Brexit deadline approached. The Declaration of itself abrogated the Prorogation rendering it null and void and of no effect. The Speaker and Lord Speaker have directed the immediate resumption of Parliament to enable it to get on with the business of government which could, sooner or later, include a possible vote of no-confidence in the present minority government and a General Election. But an election now is not favoured by the opposition parties as they don’t trust Boris not to push through a no-deal Brexit by 31 October with all the dire consequences foreshadowed by the government’s own but prematurely leaked assessment in its document ‘Yellowhammer’. The business community is acutely anxious about this and are complaining that they are being criticised by the government for drawing attention to its inadequate planning for a no-deal exit.

Parliament, if not prorogued again, will monitor and scrutinise the government’s actions from now, through to 31 October and beyond, and prepare for whatever deal the government might be intending to submit to the EU at its summit (Council) meeting on 17–18 October. Meanwhile, the Queen’s Speech projected for 15 October has been cancelled.

Prior to the EU Council meeting what might await?

First, the government might by 19 October have settled a withdrawal agreement agreed by Parliament and accepted by the EU, and on that basis the UK would be exiting the EU before or by 31 October. What that agreement might look like on present indications is outlined further below.

Second, if the government hasn’t got a withdrawal agreement by 19 October, as required by the EU, it is bound by law – as enacted by Parliament – to request the EU for additional time, to 31 January, to finalise its negotiations. However, to be in this predicament would be a political disaster, not to say humiliation, for Boris who had promised “do or die… no ifs or buts” to take the UK out of the EU by 31 October with or without an agreement. By then, of course, he may have resigned, to avoid requesting an extension of time from the EU, or another government might have been formed to transmit the request to the EU. The EU would probably have acceded to the request, particularly if the UK might be embarking on a General Election or a second Referendum in that period – or even extended the additional time to 2022, bearing in mind that year is currently set for the next General Election under the fixed parliamentary terms statute – which many now think should be repealed!

However, if by 31 October, or as extended, the UK were still in the EU, the options would be an early General Election or a second plebiscite, or both. The Parties’ positions on this are various, essentially because a General Election would not in itself resolve or clarify the Brexit issue decisively as it crosses party lines and most of the parties are divided on it. The Tories might have unified behind a hard Brexit having purged its Remainers and other moderates but in doing so severely reduced itself to a 42 seats minority in the Parliament. Further, if not having achieved an exit before a General Election, Boris would have to contend with Nigel Farage’s Brexit Party which would cream off Tory votes with a real risk of the Tories losing government altogether. The Labour Party, struggling for unity under Jeremy Corbyn, would, should they be in government, seek to conclude a withdrawal agreement with the EU within 3 months of the elections and hold a referendum within 6 months to decide between their negotiated agreement and Remaining. When put to the recent Labour Party conference the Corbyn proposal was mauled by those supporting a Remain only ticket. Their final position is yet to be decided! The Liberal Democrats at their recent national conference under their youthful and impressive leader, Jo Swinson, opted for Remaining and a straight out revocation of Article 50 of the EU Treaty – being not too fazed about any democratic deficit in their position, claiming as they might that the Leave vote in the 2016 referendum was only at 37% of the electorate, well short of a majority after allowing for non-voters.

Obviously a lot will turn on the outcome of events on 17–18 October. No one has any special insight on that.

Returning to the matter of a withdrawal agreement by 19 October, the government appears to be considering a written down version of the Theresa May agreement with some elaborations to the accompanying Declaration on future trade relations, but with only a skeletal ‘backstop’. How the latter would work with an open border between a state in a customs union and a single market involving 26 countries on one side and an adjoining non-conforming territory (Northern Ireland) on the other is as problematical as before. The sketchy UK proposals to date have been scorned by the EU Commission. There would seem a fair measure of agreement concerning established movements of agri-food products but little or none on goods and services, manufactures, cross-borders transportation, VAT issues, and complex product standards – not least on sanitary and phytosanitary products. Difficult issues to have been left unresolved to this stage.

As pointed out in a letter to The Times (14 September) from Jonathan Powell, the Downing Street Chief of Staff 1997–2007, unavoidable is a border between Northern Ireland and the Republic of Ireland (an EU member), or between Northern Ireland and the rest of the UK, or between the Republic of Ireland and the rest of the EU – one or the other and nothing less. The remaining 26 members of the EU have made it clear that they will not accept any border arrangement that threatens the integrity of their single market. A possible solution could involve the whole of Ireland being constituted as a single economic zone with the trade border being placed out to sea. Any border structures on land at any point throughout its length would, it is assessed, create serious security problems regardless of whether the IRA, in some form or other, may be involved. The EU for their part are emphatic that there must be effective controls at the border however defined.

Not to overstate a point, the Boris Johnson government has got itself into a tight corner and mere talk and vague promises will not get it out. Given that the current Tory Cabinet has been fashioned around a bevy of Brexiteer hardliners, particularly the intransigent European Research Group, both the Irish issue and the UK’s future trading arrangements with the EU will require a more open and less ideological approach to negotiations. Plain ‘vanilla’ WTO would not suffice being inferior to the level of trade access now enjoyed by the UK. A free trade agreement with substantial tariff and product alignment could mitigate the ‘backstop’ issue. A Canada ++ FTA following a no-deal Brexit would not work, it is said, as the EU would not buy it. An FTA with the EU would need to be aligned (not divergent) with the EU’s other FTAs and with third country FTAs elsewhere, including those up-coming with the US and Australia. Such a pattern of negotiations can be expected to take years, in some cases decades. Having jumped where then might the UK land?

If the deep divisions in Britain created by Brexit are not to erupt into something much more serious there is only one sustainable outcome – a Brexit with a deal. Remaining will stir deep-seated emotions among those who would understandably feel cheated. The issue has gone on too long. Talk of the judiciary frustrating their objective is incorrect. It was doing its job. Neither side can expect to get its own way entirely. The situation requires a settlement by way of common sense and compromise. For now, unless the rhetoric is calmed, a powder keg lies under this polity.

Andrew Farran, recently in the UK, is a former diplomat, law academic and trade policy adviser.

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