09 September 2019

If it respects the rule of law, the government should not be flirting with the idea of an ugly fight with the courts to get around legislation to stop no deal, argues Raphael Hogarth.

Parliament has now legislated to avert a no-deal Brexit on 31 October. The European Union (Withdrawal) (No. 6) Act, formerly the 'Benn bill', says that if the government cannot get Parliament’s agreement for either a withdrawal agreement or a no-deal Brexit, then the prime minister must seek to obtain an extension of the Article 50 period until 31 January 2020.

Yet since Boris Johnson entered Downing Street, he has argued that no deal must remain on the table in order to give the UK leverage with the EU and to ensure that the government delivers on the result of the referendum. He has promised to take the UK out of the EU by the end of next month, deal or no deal, “do or die”.

A 31 October no-deal Brexit was the government’s right – until MPs legislated to take it away

Johnson’s promise means that government policy clashes with the statute book. He therefore wants an early general election to get a public mandate for repealing the Benn Act and keeping his Halloween pledge, but opposition parties have twice declined to give him an election. The government’s attention has therefore shifted to how it can escape the effect of the Benn Act.

However, The Telegraph reports that the government may accompany the extension request required by the Act with a 'political explainer'. This would set out that the government’s policy is to leave the EU with no deal and argue that an extension would be undesirable for the UK and the EU.

Sending a 'political explainer' to undermine the Article 50 extension request would be unlawful 

The Benn Act says that the government “must seek to obtain” an extension by sending a letter to the president of the European Council, the wording of which is specified in the Act. If the PM sends the letter but makes clear he is not actually 'seeking to obtain' an extension, he would not be complying with the legislation and his actions would be subject to judicial review in the courts.

He would be inviting legal challenges on other grounds as well. The courts are generally reluctant to declare ministers’ actions unlawful on the grounds of 'bad faith' or dishonesty, but if the prime minister sends an extension request while simultaneously arguing against it then he would be vulnerable to such a finding.

In previous cases, the courts have also decided that ministers must exercise their powers under any Act of Parliament to promote the object of that Act. It is clear that the object of the Benn legislation is to ensure that the UK does not leave the EU with no deal on 31 October, and a 'political explainer' arguing for no deal on 31 October would frustrate, not promote, that objective.

This ruse would inevitably end with a court case in which claimants seek a court order compelling Johnson, or perhaps an official, to send an unequivocal extension request. If the person directed by the order failed to comply with it, they would be in contempt of court and could go to prison.

The government seems to be spoiling for a fight with the courts

The government must know that this plan would not work. It has access to plenty of good legal advice; the foreign secretary himself, who has said that he wants to test the law “to the limit”, is a former government lawyer.

The plan being briefed by the government suggests it is asking to get taken to court – and is asking to lose. However, it has been reported that the prime minister hopes this stance – painting the courts, like MPs, as part of an establishment that is attempting to frustrate the delivery of Brexit – may assist the Conservatives in any upcoming election campaign.

A fight between the government and the courts for political purposes threatens the rule of law

But this is an alarming strategy. The rule of law requires that the government obeys the law and respects the courts that interpret, apply and enforce the law. If ministers drag judges into an already toxic political argument and paint them as villains, then they invite any would-be law-breaker to shrug off whatever the courts compel them to do. Judges, who must maintain their political impartiality, would be badly positioned to defend themselves from any political attacks.

That the government abides by the law is a basic principle that should be independent of any debate about when, how or whether the UK leaves the EU. The prime minister has said that the UK government stands for the rule of law on the world stage. It should also stand for the rule of law at home, and make clear that it will comply with the law – do or die, come what may.

Comments

The author is taking Lord Nelson's approach at Copenhagen to the law. He asserts the PM prerogative to request or not request an extension under a50 has been replaced by an Act of Parliament, there is no discretion left to him. Yet any Act of Parliament that removes the prerogative requires Queen's Consent to pass into law. The Speaker ruled that Queen's Consent was not required. Where were the principled protests about the the rule of law then? The law has already been politicised by Brexit and Parliament's refusal to leave the EU.