The updated written submissions in the case, submitted by over seventy MPs in a bid to stop Boris Johnson treating Parliament as an inconvenience that he can suspend, can be read Here.
One of our arguments is that No Deal is unlawful under domestic law and, in an extreme case, a court would order Boris Johnson to repeal Article 50.
That’s a pretty striking claim, and so I thought it might be helpful to explain in a little more detail how the argument goes.
1. With regard to United Kingdom constitutional law: Müller the UKSC determined this (correctly).
(i) EU law could be seen as a direct source of individual rights
(ii) the Crown has no inherent power to limit, diminish or abolish the substantive rights of individuals
(iii) If the rights of individuals derived from EU law are to be removed, altered or diminished by action (or omission) of the Crown, this can only be lawfully and constitutionally done if the Crown is specifically authorized to do so by Parliament by the enactment of a law was authorized/empowered this effect.
2. The majority in Müller assumed (this is the common position of the parties) that the notification of a Member State under Article 50(2) TEU of its intention to withdraw was an irrevocable act under Union law and Therefore, for the purposes of UK law, it could be seen as the start of a process which would inevitably lead to the loss of the individual’s EU legal rights. On this basis, the majority concluded that a law under British law was necessary to authorize a communication under EU law. As it turns out, they were wrong. Lord Carnwath of the UKSC had the better analysis on this point, namely that the restriction of rights as a result of the notification was not inevitable as it would be It took up to two years of negotiations before it was actually known what concrete consequences a withdrawal would have for individuals’ EU legal rights.
3. Wightman The ECJ confirmed Lord Carnwath’s analysis Müller It is all the more substantiated to conclude that the Article 50 notification, which could be unilaterally withdrawn, did not have an irreversible or unavoidable impact on the rights of individuals At any time as long as the United Kingdom remained a member state.
4. Application of the ECJ Wightman Analysis for the correct interpretation of the EU Withdrawal Notification Act In 2017, it can now be assumed that this law does nothing more than authorize the Crown to begin negotiations over withdrawal. What it didn’t approve of was the Crown to restrict or deprive individuals of EU legal rights. Parliament did not issue a blank check – not a check of any kind – to the government.
5. The Müller However, the majority analysis remains good and confirms that under UK constitutional law the Crown has no power – whether through its action or inaction – to deprive individuals of their rights derived from EU law, except with express statutory authorization in order to do this.
6. If the UK leaves the EU without a withdrawal agreement in place, this would represent a massive change to individual rights under EU law. This means that under UK constitutional law the government cannot allow one No-deal Brexit without express legal authorization for this express purpose. There is currently no such legal authorization.
7. This means that if the government’s policy is indeed a no-deal Brexit, it cannot use the power to suspend Parliament to advance that policy. It would, in effect, nullify it as if Parliament were to adjourn the relevant and necessary points It will not be possible to pass a law authorizing transactions in time for Exit Day.
8. In these circumstances, if the suspension power were to be used, the only relevant active constitutional actor would be the courts, which, in order to uphold EU law, derive individuals’ rights from the inevitable significant reduction and/or cancellation of those rights This would necessarily arise from the Crown’s action or inaction in failing or refusing to enter into a withdrawal agreement with the EU, and would require making a binding order directing the Government to exercise the UK’s power to revoke Article 50 to exercise.
9. However, in a representative constitutional democracy, it is far better and more constitutionally appropriate for the legislature, rather than the courts, to make such a decision in order to keep the government within lawful and constitutional limits.
10. Having said that, not only is it clearly Parliament’s intention to decide what options it will grant to the Government in the run-up to exit day, but the overall dynamic of the Constitution requires that the suspension power should not be used until Parliament has passed Government has given clear legal authority to decide what to do in light of exit day — whether or not a further extension is sought On exit day, repeal Article 50 entirely or explicitly allow a no-deal exit.
