Only one option remains – prorogue Parliament and allow ministers to take us out of the EU with no deal on April 12
The legal and democratic principles of our constitution now point to one resolution of the EU withdrawal crisis: prorogation of Parliament for two or three weeks, so that ministers can settle down to exercising their abundant statutory and prerogative powers to prepare for the immediate consequences of a no-deal withdrawal on April 12.
On that date the European Treaties will cease to apply to this country – the UK will withdraw from the EU – by the automatic effect of Article 50.3 as modified by decision of the European Council, with the United Kingdom’s agreement, on March 22.
Whatever the merits of Brexit and of the withdrawal agreement on offer, a decision to terminate parliamentary debate now until soon after April 12 would be effective and lawful, but also wholly legitimate as a matter of constitutional principle, parliamentary practice, the interests of good government, and the responsible conduct of our international relations.
The vast majority of Members of
Parliament were elected on manifestos promising departure from the EU on terms that are compatible with no deal (whether or not they are compatible also with the deal now thrice rejected by the Commons). The Commons has since February been dealing with Brexit in a manner diverging more and more widely from centuries-old practices and standing orders historically proven necessary to governing in accordance with a Westminster-type constitution, perhaps our greatest contribution to civilised political life in many countries.
Sir Stephen Laws and Richard Ekins, in yesterday’s Policy Exchange
‘These are illegitimate operations … prejudicial to the conduct of government and international relations’
paper Endangering Constitutional Government: the risks of the House of Commons taking control, have traced the acts and statements establishing that, in these matters, we have what could even be described as a rogue Commons with a rogue Speaker. The project popularly known as “seizing control of Brexit” is, as their paper forcefully shows, a constitutional monstrosity but also, regrettably, a reality. In summary, the project is going forward by way of motions whose introducer, Sir Oliver Letwin, told the House on February 14 of his intent, to effect “the fundamental realignment of the relationship between the civil service, Government and Parliament” and to substitute the House for the Cabinet. Ill-assorted majorities in the House are knowingly deviating from constitutional principle.
The Government, therefore, can with full legitimacy consider the House’s imminent operations illegitimate in intent and chaotic in effect. These are illegitimate operations which, in the context of the House’s constitutionally legitimate rejections of the deal, are prejudicial to the conduct of government and international relations, and to the delivery of something this Parliament and its predecessor have approved, again and again, in considerable detail: carrying out a decision of the British people to exercise their treaty-based (Article 50) right to terminate their law-generating treaty relations with the European Union and its other members.
Lords and Commons authorised the referendum by huge majorities after the ministers introduced the Bill by saying it was to let the people, not the Government or Parliament, decide between leaving and remaining. During the diversionary Miller litigation, the Commons massively approved triggering Article 50. Parliament itself then met the Supreme Court’s newly invented hurdle by statutorily empowering the
‘Age-old assumptions about parliamentary business … have been subverted by the Speaker’s rulings’
Prime Minister to give Article 50 notice of our intent to withdraw. The present Parliament’s European Union (Withdrawal) Act 2018 timetabled the withdrawal and, by Section 13, the associated parliamentary proceedings.
But, as Laws and Ekins demonstrate, age-old assumptions about parliamentary business, taken for granted in Section 13, have been subverted by the Speaker’s rulings. These rulings mean that antigovernment majorities, unwilling to replace this Government and trigger an election, can now usurp the Government’s role in managing withdrawal. They can override Government resistance by contempt rulings, or even by passing in both Houses a Bill for imposing statutory control of our dealings with the EU. They could soon involve the Queen in either overriding her own ministers by assenting to such a Bill or overriding the Commons (and Lords) by accepting her ministers’ advice – which would be proper and appropriate – to withhold her assent.
Fully constitutional conduct of the nation’s affairs will only be restored if those parliamentary manoeuvres are terminated. The democratic decisions already taken mean that the referendum result would then take effect automatically on April 12, the exit day provided for in the Withdrawal Act as amended on March 28.
Meanwhile, ministers could spend two working weeks getting many immediate economic and political relations with the EU, including Ireland, and with the rest of the world, on to a pragmatic footing.
On returning to business after prorogation, the Commons would be well placed to face up to its recently shirked constitutional and political responsibility, to establish whether the majority support the present government, or some alternative government, or can face the people in an election.
John Finnis QC (Hon) is Professor of Law emeritus at the University of Oxford