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The Government and Parliament are battling for dominance over Brexit. It’s the English Civil War being played out in words and tactics. The Mother of Parliaments may never be the same again.

There’s a battle for power going on in a hall in downtown Westminster. The age old friction between the UK Executive (the Government) and Parliament is getting a new airing and a good old bashing. The outcome could rebalance the Westminster democratic model. Here’s why.

Let’s start with the relevant constitutional basics put very broadly

  • The UK has an “unwritten constitution”: not quite, parts of the constitution are in writing (set out in statute such as the Bill of Rights or European Communities Act) and it would be better to describe it as uncodified (insofar as these instruments have come into effect individually and over time and have not been synthesized into a single coherent and comprehensive instrument).
  • “Government proposes and Parliament disposes” i.e. the Government proposes legislation which Parliament debates, amends and passes or rejects.
  • “The Crown in Parliament is sovereign” i.e. Parliament has control of legislation once presented to it by the Government but subject to Government management of the timetable, which is exercised through the standing orders (formal rules which govern how Parliament transacts its business).
  • Private Members Bills: These are a mechanism for individual MPs, rather than the Government, to propose legislation but as a practical matter they depend on Government support. Absent that support they are unlikely to see the light of day.
  • “Parliamentary will”: Government is bound by Parliamentary will expressed in statute. It may be explicit or implicit.
  • “Crown Prerogative”: The Queen has residual powers; most are exercised by her Government and some personally. Statute ousts the prerogative and the exercise of prerogative may be challenged in some cases, for instance, because of unfairness. The best known Government-exercised prerogative is its ability to make and break international treaties. That prerogative power is however hemmed in by the Constitutional Reform and Governance Act 2010 which provides that international treaties may be ratified only if laid before Parliament. On the personal side, for instance, the Queen personally appoints the Prime Minister but by convention her choice is usually made for her.
  • Votes and motions: Parliament can vote on legislation which is binding on the Government. It can also pass motions that are not legally binding but are said to express the will of Parliament.
  • The Speaker is a neutral. He should not exercise his powers in a partisan fashion. He has recently suggested that he is there also to defend Parliament vis-à-vis the Government. Many would disagree.

The legislation

Article 50 was introduced into the Rome Treaty by the Lisbon Treaty. It allows an EU nation to withdraw from the EU by serving a Notice. The Notice is in place for two years and after that, absent any agreement (whether to extend time or to enter into a new relationship), the nation withdraws. The two years may be extended with the unanimous agreement of all other EU nations (see below).

The Miller judgement (in which Edwin Coe acted), held that Parliament had authority over the UK’s service of the Article 50 notice because the prerogative with respect to treaty withdrawal had been ousted by statute. Thereafter, Parliament passed (by a big majority) the European Union (Notification of Withdrawal) Act 2017. This simply gave the Prime Minister permission to serve the Article 50 Notice which she then did; it did not give her authority to finalise the terms of withdrawal. The Notice expires on Friday 29 March 2019.

In 2018 Parliament passed the European Union (Withdrawal) Act 2018. This expressed Parliament’s will to leave the EU and provided the mechanism to do so but (and it’s a vital but) subject to two issues. First section 20(4) gave the Prime Minister power to extend the period of the Article 50 Notice (which she may have also under Crown Prerogative), and second, section 13 provides for the “meaningful vote” on the terms of withdrawal from the EU. Section 13 was the subject of many machinations but was a compromise offered to Parliament by the Government. Under it the Government must present to Parliament the Withdrawal Agreement (which deals mainly with the short term arrangements in the transition period) for ratification, and the longer term proposed arrangements with the EU, although both are often referred to generally as the Withdrawal Agreement.

On the basis that we will no longer be members of the EU after 29 March the civil service has been going hell for leather to present legislation to deal with our departure and what happens on 1 April. The Government estimated that some 800 statutory instruments need to be in place by 29 March. They won’t be. Thus far 333 have been presented and 76 passed.

Where we are now

The Government presented to Parliament on 15 January 2019 the fruit of its work over the past 2 years in accordance with section 13 of the Withdrawal Act. Parliament didn’t like it but they didn’t like it for all sorts of reasons. MPs rejected it by a whopping majority. The Withdrawal Agreement must be ratified by Parliament otherwise it falls. In law, absent something further, however we leave the EU on 29 March 2019 with or without a Withdrawal Agreement.

Section 13 provides for what must now follow. In short the Government must have another go but with Plan B i.e. different proposals as to how to proceed to which MPs can propose amendments. But this proposal and any amendments are not statute; it is a motion so not binding on the Government. The Withdrawal Agreement still requires ratification by Parliament but the next stage under section 13 is for the Government to tell Parliament what it is going to do next. The vote on the next version of the Withdrawal Agreement is slated for some time in February.

The Government currently holds the cards. While revocation of the Article 50 Notice (if that was on the agenda) is within the control of Parliament (but only if the Government proposes it in statute), delaying the effect of the Article 50 Notice is in the Prime Minsters hands. Parliament cannot, as things stand, force, the Government’s hand by statute subject to clever machinations because the Government still controls the legislative timetable. It can pass amendments to the Government’s section 13 motion but these are not in law binding. Can Parliament truly take control? Possibly. Enter the Boles’ proposal. Boles is a Tory MP. He has proposed that Parliament can take control by suspending standing orders for a day (which will remove Government control over the timetable), and then introduce and pass within 24 hours a statute that says the Government cannot leave the EU without an agreement. That will need the Speaker’s agreement to suspend standing orders for the day. It’s also in his gift to take amendments. If he does agree to suspend or appear partisan in his choice of amendments there’ll be no Lord Bercow.

The EU also has a hand in this process because they need all to agree that the Article 50 period be extended. The problem for them is the impending European Parliament elections in late May with the new Parliament operating from July. The European Council has plans to deal with this but not all nations may agree. Even if extended, the EU might not want UK elected members taking their seats in the new Parliament. Extension is by no means a done deal on the EU side.

This is big stuff. This is the English Civil War being played out peacefully, a power battle between the Queen’s Government and the Queen in Parliament. Of course, the Queen needs to assent to legislation so perhaps yet there’s room for her to get stuck in!

For further information regarding this topic, please contact David Greene or any member of Edwin Coe Litigation Dispute Resolution team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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