Expert View

If PM breaks law, ECJ could halt Brexit

by Pavlos Eleftheriadis | 04.10.2019

Τhe Supreme Court’s judgment in Cherry/Miller No 2 was remarkable both for its robust defence of parliamentary democracy but also for the clear remedy it provided in response to the Prime Minister’s unlawful actions. It quashed both the Prime Minister’s advice and the Order in Council that led to the prorogation of Parliament. They were ‘blank pieces of paper’, it said.

It will not be that easy to provide a remedy in all cases of constitutional significance, however. In some cases, a blank piece of paper is the last thing we need. If the Prime Minister chose to ignore the ‘Benn Act’, there would be nothing to quash. If the EU and the UK have not agreed a new Withdrawal Agreement by October 19, the Prime Minister has a duty under s.1(4) of the European Union (Withdrawal) No. 2 Act 2019, or the ‘Benn Act’, to write to the President of the European Council by October 19 in order to seek an extension of the Article 50 negotiation. The Act has already drafted the letter for him. It appears in its full form in a Schedule to the Act – minus the signature and postage stamp. 

The Benn Act does not say what happens if the Prime Minister fails to comply. Perhaps it was thought unthinkable at the time. Yet, judging from some of his recent public statements, the PM may be ready to ignore this obligation. 

What happens then? A Court may be persuaded to issue an Order for him to comply. But he could ignore the Court Order as well. If he did so, he could be committed to prison for contempt of court. Even then, however, he could choose not to sign the letter, for if he so, Brexit would happen on 31 October merely by the passage of time. The automatic deadline of Article 50 needs no further step. 

There are various procedural avenues that are being considered against the Prime Minister’s potential defiance of the law. Some lawyers think that the High Court could itself sign this letter, under s. 39 of the Senior Courts Act 1981 – or via a somewhat similar provision in the Scottish Court of Sessions. These suggestions are novel and yet untested. 

There may be a further way to protect the British constitution, however. Article 50 provides that a member state can leave the EU only according to its ‘constitutional requirements’. If it is clear that the Prime Minister is violating the UK’s constitutional requirements, which include the Benn Act, then Article 50 TEU does not allow Brexit to happen. 

In the Wightman case, which established that the UK could unilaterally withdraw the Article 50 notification, the Court aid that a state could leave through a ‘democratic process’. But if the Prime Minister was in prison for failing to comply with an Act of Parliament, Britain would not be leaving through a ‘democratic process’ but through the abuse of Executive power. 

In such a case, it would be clearly possible for the European Commission to start proceedings against the United Kingdom before the Court of Justice, asking the UK to accept that Brexit cannot happen in circumstances of constitutional impropriety. Alternatively, if the Commission refused to do that and the EU prepared to cast the UK adrift in such circumstances, a private citizen could challenge the conclusions of the European Council and any associated Decisions taken by the Commission in preparation of ‘no deal’ Brexit. Alternatively or in parallel, a case could arise in the UK courts, which would refer it to the Court of Justice. 

The Court of Justice is bound to say that Brexit cannot happen, if there is a manifest violation of the UK’s Constitution which has already been asserted by a British Court, namely the court that committed the Prime Minister to prison. The Article 50 process must therefore be suspended for as long as the constitution of the United Kingdom was being violated by its Prime Minister. Brexit would be suspended until the Article 50 letter was signed by a new Prime Minister, or the Benn Act was amended.

Any such action would rely on the powers of the Court to take urgent interim measures, under Article 279 TFEU. The Court of Justice can make an interim order immediately, even before the UK has had time to submit its response to the Court. 

There is recent precedent on this urgent process. In the case against Poland, which arose a year ago regarding a law forcing the early retirement of sitting Supreme Court judges, the European Court ordered Poland not to give effect to that law, while the case was pending. It made the Order within days of being asked, even before Poland had a chance to respond to it, under Article 160(7) of the Rules of Procedure of the Court. In the Polish case, it took 17 days for the Court to make this interim Order. There is no reason why the Court could not act even more quickly. 

Such interim measures would give the UK time to choose a new government, with or without a General Election. There would be no accidental, and therefore unconstitutional ‘no deal’ Brexit. Parliament would decide the matter, one way or another, as the British constitution requires. 

As long as the UK is within the Article 50 process, its own constitutional requirements must be fully respected. This is what the Treaties require, nothing more and nothing less. If the UK constitution needs protection, the Court of Justice of the European Union can provide it. 

Pavlos Eleftheriadis is a professor of public law at the University of Oxford and a barrister at Francis Taylor Building.

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Edited by James Earley

Categories: EU Law, UK Politics

10 Responses to “If PM breaks law, ECJ could halt Brexit”

  • May I use that idiotic exclamation WOW here please? I accept that it may have taken some time to find this out but this surely is the best news for a long time. Notice the exquisite cynical quality of the fact that it would be the ECJ that saves the integrity of the UK here. What sweet joy!

  • Anyone seen that lovely but admittedly crude video about Boris Johnson already? To the tune of Super Cali Fragilistic etc? Remain finally hitting back where it counts; brutality and crudeness answered in like language! Loverly!

  • The Tory Party will not now, as they have in the past, be able to put themselves forward as the “party of law and order”.

  • Neil McCart says:
    The Tory Party will not now, as they have in the past, be able to put themselves forward as the “party of law and order”.

    Whyever not? Have they not ditched consistency along with…..lots of things.

    Earlier this week, in a a single interview, James Cleverly claimed that it was democratic to do what the DUP wanted because they are the elected representatives of the people of Northen Ireland but undemoctratic to do what MPs wanted because 17.4m people…………

  • If, as is now being suggested, the Government goes to the Supreme Court, I imagine it will base its case on the Royal Prerogative.; that is that what essentially is at stake is Her Majesty’s Government’s right to rule. The impossibility of the present situation is that Parliament – in Pope’s words “willing to wound, yet afraid to strike” – continues to maintain a minority government in office yet, in a strictly constitutional sense, denies it “supply”. In that case I fail to see how the Court would not feel itself compelled, albeit through gritted teeth, to rule in favour of the Government.

  • So, that the Benn Act is actually unconstitutional will probably form the basis of the Government’s case. Taking this case to the Supreme Court is a very shrewd move politically. The Court itself will need to act extremely carefully. It really can no longer afford to make a judgment that runs the risk of being seen to be in any way partisan. In that sense the Government already has a degree of credit going for it. After her quite amusing but probably rather unwise jests in recent days, it would not surprise me if Lady Hale finds a reason to recuse herself personally.

  • I beg to differ on this.
    “…Article 50 provides that a member state can leave the EU only according to its ‘constitutional requirements….”
    Not so. Only the Decision to Leave and hence to serve an Article 50(1) Notice has to be in accordance according to 50(1).
    Accepted that the English text is ambiguous: “A member state may decide to leave in accordance with its constitutional requirements…” Can be interpreted as applying to the entire process of leaving.
    But the French and German texts for example are unambiguous. They read “A member state may, in accordance with its constitutional requirements, decide to leave…”. They can be found online.
    I have discussed this with one of the authors of Article 50, Lord Kerr, and he concurs. The clause was originally drafted and agreed in the French version. He was not happy with the official English translation and its ambiguity.
    A legal argument based on the nuances of the English text would not hold water for one second once the other texts are produced. Sorry.