Stopping no-deal: can parliament fortify the legal position? 


We know, due to the so-called Benn Act passed last month, that a majority in parliament is opposed to leaving the EU without a deal on 31^st October. But the government position is that it will not implement the central obligation of the Act—to request an extension of EU membership (if parliament has not agreed to a withdrawal agreement, or accepted a no-deal outcome) by 19^th October.

However, thanks to last week’s Supreme Court judgment ruling that the government’s prorogation was unlawful, parliament is now back in session, with some unexpected time to take further measures to ensure that the government complies with its legal obligations. How might it use this time?

First of all, further political action might turn out to be unnecessary, since there is a pending legal case aiming to ensure that the new law is enforced. But it would be unwise to assume that this case will be successful (it might be judged premature, for instance). Further political measures might be useful. In any event, there’s a possibility that the law might face its own legal challenge. If that challenge were successful, parliament would have to rethink its strategy completely.

Parliament could pass a no-confidence vote in the government, and aim to form a replacement that would comply with the obligation to send the extension request. The problem with this option is first of all political: it’s not clear that the government’s opponents in parliament can agree on who the prime minister should be in this scenario. It’s also not clear if they agree on an agenda: should the new government simply send and agree an extension request, then call for an election? Or should it have a bigger agenda, including holding another referendum and/or electoral reform?

There’s a legal issue with this option too: the prime minister might refuse to resign, interpreting the Fixed-term Parliaments Act to mean that’s there no obligation to do so even if there’s enough support for an alternative PM, simply “timing out” the Act until an election is called two weeks later. This interpretation of the constitution is highly contested, and it’s possible that the Queen would intervene to fire the PM, or indicate her displeasure strongly enough to lead to his monarchical constructive dismissal.

But such regal intervention isn’t certain either: as chess players know, the Queen can move in any direction—or not move at all. In this case, the Queen might conclude that it’s too politically toxic to fire a prime minister. So an option open to parliament is to amend the Fixed-term Parliaments Act instead, to confirm when the prime minister has an obligation to resign to let another government form—for instance, after parliament passes a motion expressing its support in someone else. (A law like this might need “Queen’s Consent” to be debated in parliament, as it arguably affects the monarch’s powers. That would introduce further complications as the government would be given an effective veto. But the drafters could try to get around this by specifying that the new rules would coexist with the Queen’s powers to dismiss prime ministers, rather than replace them).

Another possibility is to amend the Benn Act itself. For instance, the date of the obligation to request an extension could be brought forward, although the problem is that some still have hope an agreement will be reached with the EU on 17^th and 18^th October. Another option is to confirm that someone else must act on behalf of the prime minister if he refuses to comply with his obligations. It’s possible that the EU will only consider a request from the prime minister himself, although amendments to the Act could refer to international law, which accepts that “full powers” to negotiate can be given to someone other than a PM.

It might be useful to amend the Act to state explicitly that it cannot be amended, suspended or repealed by anything except a later Act of Parliament—confirming that the various government legal wheezes mooted to suspend the Act by emergency powers or otherwise, or refuse to comply with it in other ways, are doomed. (The Act already says that “The provisions of this Act override any statutory or other provision which would otherwise require the UK to leave the European Union on any specified date”; and it’s hard to argue that it conflicts with EU law, including the EU Charter of Rights, since the domestic process of a withdrawing state requesting an extension of EU membership is not regulated by EU law.)

A no-deal outcome could be definitively avoided by making revocation of the notification to leave the EU, or the approval of the current version of the withdrawal agreement, the default, instead of the current default of leaving with no deal. But there may not be a majority for such amendments. In any event it would be politically prudent to provide for an upper time limit of any acceptable extension, so as to avoid accusations the EU could insist the UK remains a member indefinitely, and to require the UK to nominate an EU commissioner if extension is agreed.

None of these options is certain to succeed—or certain to fail; and the EU might refuse an extension in any event. Parliament has to make a judgment call as to whether further action is necessary, and then find a majority for any particular course.

Steve Peers, Professor of Law, University of Essex