Round Up 16.09.19. In fashion this Autumn/Winter – Constitutional Law?

16 September 2019 by Thomas Hayes

Flags flutter outside Parliament. Credit: The Guardian.

Very few weeks have given the function of the legal system and the role of the courts as much prominence, nor exposed them to as much scrutiny, as the last week. The decision of the Prime Minster to prorogue Parliament, followed by the granting of royal assent to legislation which would require him to seek an extension to the Article 50 process for exiting the European Union, has launched into the public consciousness areas of constitutional law previously the domain only of law students cramming for exams, public law lawyers and academics in tweed blazers. In what at times made Newsnight look like an hour-long revision seminar for Graduate Diploma in Law students, unfashionable concepts such as justiciability, judicial review and the rule of law took centre stage, framed by the context of Brexit.

The previously widely accepted concept of the rule of law seemed to come under attack last week, after the passing of the European Union (Withdrawal) (No2) Act 2019. This short piece of legislation intends to compel the Prime Minister to seek a further three month extension to the Article 50 negotiation process should he fail to pass a withdrawal agreement through the House of Commons by October 19^th. In case words should fail the Prime Minister when requesting such an extension, the Act helpfully provides the exact text he would be required to send to the President of the European Council to seek such an extension. Only this morning however, Downing Street was telling reporters that the Prime Minister would “reject any delay offer” from the European Union (see BBC here), raising the slightly far-fetched possibility that the Prime Minister might sign a letter asking for a delay, be granted one and then promptly decline it. Some have suggested that actions such as this, clearly intended to frustrate the meaning of the Act, would in themselves be unlawful, although how exactly the courts would interpret such a scenario and proceed is open to discussion. There was also a suggestion, perhaps unwise, that the government might choose to ignore the law entirely, with Michael Gove consistently failing to accept the proposition when asked whether the government would comply with the law (watch via the BBC here).

Unlike the above however, the question of how the courts might behave in relation to the Prime Minister’s prorogation of Parliament is increasingly an exercise in observation rather than speculation. Last week gave us two conflicting judgements to consider, as his action was challenged in both the Inner House of the Court of Session in Edinburgh, and the High Court in London. The matter will go before the Supreme Court tomorrow (September 17^th), with an analysis of both judgements describing well the alternative sides of the argument. The issue is both incredibly complex, yet also rather simple. Johnson’s narrative is that his action is intended only to facilitate his legitimate ambition of bringing forth a new Queen’s Speech outlining his new government’s legislative agenda. His critics protest that he has, in essence, suspended the legislative branch to prevent it from providing a moderating influence on his powers, in a manner not unfamiliar to dictators in a failed state. Jo Moore has looked in greater detail at both verdicts on the UK Human Rights Blog here. The Supreme Court’s verdict on the limits of executive power and the justiciability of matters well within the political sphere will have a constitutional legacy which goes well beyond its impact on Brexit.

In other news;

• The Northern Irish courts rejected a challenge to the government’s attempts to negotiate a departure from the European Union on the grounds of irrationality and that it imperilled the Good Friday Agreement – McCord (Raymond), JR83 and Jamie Wearing’s Applications v The Prime Minister and Others.

• The family court heard a further case in which paediatricians and parents are in dispute over the best course of action in the care of a severely ill child. Tafida Raqeeb has been in hospital at the Royal London for five months after suffering a catastrophic intracranial bleed. Her medical team wish to palliate her but her parents wish to take her abroad for further treatment. The case echoes those of Charlie Gard and Alfie Evans and demonstrates the difficult issues encountered when medical staff feel parents are no longer making treatment decisions in the best interest of their child.

• The United States provided further illustration of how the courts and judges can become politicised in a polarised and highly charged political atmosphere. New allegations of sexual impropriety surfaced this week against US Supreme Court Judge Brett Kavanaugh. Whilst some on the left of American politics called for the judge’s impeachment, President Trump immediately dismissed the allegations as false in a tweet, and suggested the Justice sue for libel.

Lastly, on the UKHR Blog:

• Sapan Maini-Thompson looked at a High Court judgement on facial recognition technology
• Jonathan Metzer reports on the rights of non-married partners of EEA nationals

On Law Pod UK:

• In Episode 92, Catherine Barnard looks at Boris Johnson’s government’s prospects of securing a new deal with the EU.