Litigating Brexit – The UK Constitution 2019

Speaker: Austen Morgan
Chambers: 33 Bedford Row

Austen Morgan
Barrister
33 Bedford Row

This seminar will cover

2016 Referendum
52% voted to leave.
48% voted to remain.
72% voter turnout.

European Union Law
Art. 50 TEU created a treaty right of a member state to leave the EU: Wightman v Secretary of State, CJEU, 10 December 2018 (the so-called revocation case!).

Principal Elements
The principal elements are:
• notice by the member state;
• exit after two years (unless all 28 agree an extension);
• an optional agreement (not two agreements);
• re-joining under art. 49 TEU

Brexit Date
Parliament voted on 26 June 2018 for Brexit day:
European Union (Withdrawal) Act 2018 s 20(1); plus ministerial domestic amendments of 29 March 2019 to 22 May (or 12 April) 2019 and 31 October 2019.

Miller One
Gina Miller wanted, and wants, to stop Brexit: Guardian, 26 November 2018.
She is the inspiration for rebel MPs led by speaker Bercow.

R (Miller) v Secretary of State
[2017] UKSC 5
R (Miller) v Secretary of State [2017] UKSC 5, decided 24 January 2017, by eight votes to three (Lords Reed, Carnwath & Hughes).

On 1 February 2017, MPs voted 498 to 114 (on second reading) for: the European Union (Notification of Withdrawal Act) 2017
On 29 March 2017, Theresa May wrote the letter, setting 29 March 2019 – in EU and UK law – as Brexit day.

But, on 8 June 2017, in the general election, Theresa May, with 317 seats, lost her overall majority in the 650-strong house of commons.

Irish Border
The draft grounds regarding the withdrawal agreement (and political declaration) of November 2018 were:
(1) Union with Ireland Act 1800 on a UK single market;
(2) bilateral responsibilities under Northern Ireland Act 1998;
(3) a legitimate expectation arising from ‘no hard border’; and
(4) EU misconstruing the Belfast agreement under 1969 Vienna convention on the law of treaties.

Theresa May’s Brexit Deal
Theresa May failed in the commons with her withdrawal agreement:
• first, on 15 January 2019, by 432 votes to 202;
• second, on 12 March 2019, by 391 votes to 242; and
• third, on 29 March 2019, by 344 votes to 286.

Theresa May’s Brexit Deal
A fourth unsuccessful attempt, with promised new legislation, led to her resignation announcement on 24 May 2019.

On 24 July 2019, Boris Johnson succeeded her as prime minster.

Miller Two
This concerned a different royal prerogative power, namely the prime minister advising the queen to prorogue parliament from 9/12 September to 14 October 2019.

R (Miller) v Prime Minister [2019] UKSC 41, decided on 24 September 2019, by eleven votes to nil.

The Supreme Court
The supreme court – hanging together (rather than separately) – changed the law retrospectively on 24 September 2019:
• the power was reviewable; it did not go near motive (like the Scottish court);
• however, it did look at the effect on parliamentary sovereignty, as the concept was being deployed by the radical alliance in the house of commons.

The Supreme Court
The supreme court did it, because it could – being seen to intervene on one side of the leave/remain poisonous debate.

Parliament came back the following day, never having been prorogued (it was then prorogued on 8 October to 14 October 2019 for the queen’s speech).

UK Constitution
The UK does not have a codified constitution in our dualist legal system. In lieu, A.V. Dicey’s Introduction to the Study of the Law of the Constitution (1885) substitutes:
• English (yes) parliamentary sovereignty (which related to exclusive law making);
• the rule of law; and
• (unenforceable) conventions

The Cooper Bill
The so-called Cooper bill – the European Union (Withdrawal) Act 2019 (which had no effect on Theresa May) and the so-called Benn bill – the European Union (Withdrawal) (No. 2) Act 2019 (which may go the same way as regards Boris Johnson) – are, in constitutional law terms, an abomination.

With 52 per cent of the people invoking the 2016 referendum (get Brexit done), and their opponents turning the house of commons into a theatre of the absurd, the Miller Two victory may mark the end of Dicey’s parliamentary sovereignty and its replacement by a constitution based upon popular sovereignty.

You can contact Austen Morgan via his clerks at
33 Bedford Row Chambers

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