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Stress Testing the UK Constitution – Part II

Stress Testing the UK Constitution – Part II


Last week, the European Court of Justice heard the arguments in the Article 50 Brexit case. I shared my thoughts on how, in times of upheaval a country’s constitution is stress tested, and the important role of the courts comes to the forefront, see here. This morning, the Court’s Advocate General, an eminent Spanish lawyer called Manuel Campos Sánchez-Bordona, published his “Opinion” in the case.

Mr Sánchez-Bordona has come down firmly on the side of the Scottish politicians who raised the case, and against the massed legal teams of the UK Government, the European Council and the European Commission. He agreed that the UK Parliament has the power under European Law to unilaterally revoke its Article 50 notification of withdrawal from the EU.  According to him, this was the best way to avoid putting obstacles in the way of continued EU membership, and was consistent with the goals of advancing the process of European integration, and protecting the rights acquired by EU Citizens.

Mr Sánchez-Bordona’s Opinion represents his independent analysis and proposals for resolving the case.  The final resolution will be for the judges, who it seems will be deliberating for a few weeks yet.  The Opinion is significant because these Opinions are often a good indicator of which way the wind is blowing through the European Court.

Her Majesty’s (UK) Government has fought the Scottish Brexit case at every stage, arguing that the courts should not even entertain it because it is hypothetical. After all revocation is not HM Government policy - but the Brexit era has been a strange time for HM Government. 

At a basic level, HM Government is a cohort of Members of Parliament, led by the Prime Minister, who together exercise the powers of the Crown (the state), by passing legislation and exercising other discretionary “royal prerogative powers” which do not require Parliamentary approval.  

Theresa May’s Government wanted to bypass the UK Parliament by using royal prerogative power to give the Article 50 withdrawal notification. The English High Court had other ideas, deciding in Gina Miller’s case that notification needed the authority of the UK Parliament.  This led to the hurried passing of the European Union (Notification of Withdrawal) Act 2017. This restraint of the exercise of royal prerogative power was a set back for Theresa May, albeit not as terminal as that suffered by Charles I in 1649.

Before this morning, the stage was already set for a showdown between HM Government and the rest of the UK Parliament. Since the EU Withdrawal Agreement was agreed by the European Council on 25 November, much of the media coverage has been predicting that Theresa May’s Government will struggle to get enough MPs to vote it into law. 

Mr Sánchez-Bordona’s Opinion has the potential to up the stakes considerably. In days gone by HM Governments could be toppled by a majority vote of “no confidence” in the House of Commons, but the Fixed-term Parliaments Act 2011 makes that much more difficult. Mr Sánchez-Bordona has said that if the UK Parliament can authorise Article 50 notification, it can also revoke it.  Soon, the boot may well be on the other foot, with the UK Parliament attempting to bypass HM Government.

A postscript: Fast forward just a few hours after I wrote this blog yesterday, and HM Government had lost three Brexit votes in the House of Commons by yesterday evening.  Dominic Grieve MP, formerly the Attorney General of England and Wales, and now a Brexit rebel, was saying “No longer must the will of Parliament - reflecting the will of the people - be diminished,” and “Parliament must now take back control and then give the final decision back to the public because, in the end, only the people can sort this out."

By Will Cole

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