Boris Johnson and the politics of accountability

On the weekend of 15-17 September 2017 Boris Johnson, the UK's Foreign Secretary, became embroiled in a spat with the Chair of the UK Statistics Authority, Sir David Norgrove. The spat is the latest illustration of an ongoing fault-line at the heart of the UK Constitution about the nature of its checks and balances. Perhaps the part of the fault-line most frequently highlighted is disagreement as to the judiciary's proper remit, as for instance in the response in some quarters to the Administrative Court's ruling in Miller. As the 'Johnson affair' highlights, however, the fault-line has numerous other branches. This post examines the relevance of the claims and counter-claims deployed in the 'Johnson affair'.

The Johnson affair

On 15 September 2017, Boris Johnson, Foreign Secretary, wrote an article in the Daily Telegraph in which he stated that "once we have settled our accounts, we will take back control of roughly £350 million per week". Two days later, the Chair of the UK Statistics Authority sent a letter to Mr Johnson describing the use of this figure as "a clear misuse of official statistics". Mr Johnson responded with a letter to the Chair, accusing him of misrepresenting what he said and demanding a retraction.

On one level the affair may be viewed as of little consequence other than impinging on the reputations of two public figures, and creating short-term heat in political and media discourse. But the affair also illustrates two very different visions of constitutional accountability which have been exposed by Brexit.

At one of the spectrum, there are those that advocate the superiority of directly democratic routes to accountability, almost to the exclusion of other methods. According to this approach, free speech and political discourse are defended as the only fully legitimate sources of accountability. A free media, free and fair elections, and democratic chambers are accepted as constitutionally protected fora within which political battle is held. A limited model of the rule of law and the doctrine of ministerial responsibility are also accepted as necessary concessions to the need to prevent abuse of power, but otherwise strong government is legitimated by the transparency of the periodic electoral process and the powerful role of the opposition. By this approach, the role of other accountability institutions are either objected to or heavily circumscribed. In the Johnson affair, therefore, the work of the Authority has been critiqued, and the Chair's intervention taken as an example of an inappropriate intervention by an unelected institution into a highly political matter.

At the other end of the spectrum, accountability in the modern state is seen as a much more complex animal. For instance, James Madison in the Federalist papers (1788) once said:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Madison's is a thesis warning of the dangers of unchecked executive power. Part of his solution was the distribution of political powers across different layers of government (what we would refer to as devolution), but public lawyers also spend much of their time debating what his form of reasoning means for the role of the judiciary. The range of auxiliary precautions that might be put in place, however, goes well beyond the judicial - as the 'Johnson affair' highlights. When these auxiliary precautions are ignored or resisted by politicians then there is a risk that the constitution's political and administrative culture of good governance is undermined.    

The UK Statistics Authority as an example of unelected accountability

The UK Statistics Authority was established under the Statistics and Registration Service Act 2007. According to its own website, the "authority is an independent statutory body. It operates at arm’s length from government as a non-ministerial department and reports directly to the UK Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly." The Authority is, therefore, a classic example of an unelected accountability institution, with a basic rationale to secure trust in government. 

The Authority is part of an extended network of unelected accountability in the UK. Take for instance the role of audit. A bespoke public official has been charged with auditing government expenditure since at least 1314, a role today enshrined in the National Audit Act 1983 and the independent offices of the Comptroller and Auditor General and the National Audit Office. Without the input of the AG and the NAO, the Government's version of its accounts on income and expenditure would go under-scrutinised. Plausibly a combination of free speech, Parliamentary debate and the role of the political opposition would prevent the Government from presenting inaccurate accounts, but this raw version of monetary accountability has long since been rejected. Reasons for this rejection include:

• the powerful Machiavellian incentives for Governments to massage financial information for electoral gain;    
• the lack of resources within Parliament to perform the function of scrutinising highly technical matters such as financial accounting;
• the inefficiency and impracticability of dedicating Parliamentary resources to investigating financial trails of accountability;
• the benefits to all sides of neutralising a potential area of permanent political discord;
• the benefits in terms of good decision-making of being able to rely on objectively agreed financial information;
• the enhanced public trust that follows from the objective confirmation of financial information.

Many, if not all, of these reasons attach to the role of the UK Statistics Authority.

When is institutional independence necessary?

A key feature of institutional accountability is the perceived capacity of autonomous institutions to safeguard the conditions of trust which are necessary to enable the ordinary political process to operate effectively. There may be something special about financial audit that justifies it being removed from the realms of political accountability, but the technique of taking the political out of the direct control of decision-making is a common feature of the modern state. Which raises the question of when this form of institutional design is necessary?

A controversial example is monetary policy. Under the Bank of England Act 1998 an independent body, the Bank’s Monetary Policy Committee, sets the Bank's interest rates with significant ramifications for the country's economic policies. In the performance of this duty, however, the Committee works towards Government set targets and, as well as being publicly accountable for its decision-making, the Bank has to write a letter to the Chancellor should those targets not be met.

With the Bank of England's current remit, many of the same rationales for independence apply as for other unelected institutions, although here the concern is less with the need for accountability and more with a distrust of the Government's capacity to undertake long-term decision-making when the temptation is to play to short-term electoral advantage.

Tellingly, there is less agreement as to the advantages of placing monetary policy outside the direct influence of politicians than there is for the role of audit, as several Brexit-related attacks on the input of the Governor of the Bank of England highlighted. But precisely because the Bank of England example is controversial, it highlights three importance aspects of the role of unelected accountability:  

1. For various reasons, unelected accountability is often created by Parliament - namely the directly elected branch of the constitution. This design legitimises the unelected branch, but also entails that Parliament can alter (or remove) the remit of unelected accountability institutions at any time.
2. Unelected accountability is itself accountable for its input and performance.
3. Due to the nature of this ongoing scrutiny, there is no such thing as full independence, as an unelected accountability institution will always experience a range of soft and discrete pressures (eg budget cuts, threats of reappointment) to alter its practices in line with Executive policies.

In short, the answer to the question of when unelected accountability is necessary is itself a deeply political question over which the Parliament has ultimate control.

The Johnson affair and the politics of accountability

The 'Johnson affair' illustrates the contours long which debates about the extent and design of the unelected accountability sector are fought. 

Along much the same logic as other unelected institutions, the UK Statistics Authority was established with "a statutory objective of promoting and safeguarding the production and publication of official statistics that ‘serve the public good’." Its very existence serves to undermine the claims of those that believe that the UK Constitution is best understood as very raw form of political constitution, in which only political debate matters. 

But does the 'Johnson affair' provide sustenance to the argument that unelected accountability undermines democracy and that the role of unelected accountability should be reduced?

There are several standard arguments used to critique unelected accountability. 

Unelected institutions are undemocratic

The first is simply that unelected institutions are undemocratic, in that they remove power illegitimately from the democratic branch. Such an argument is hard to sustain, however, in circumstances where it is the choice of the elected branch itself to establish an unelected institution, as is the case with the UK Statistics Authority. Such arguments become weaker still where unelected institutions have not been subsequently abolished by later Parliaments who might not have the same political incentives to support their operation. Here it is telling that new Governments have often been known to start office with a fanfare intention of creating a 'bonfire of quangos' but later to backtrack when they realise the benefits of such institutions, and the bad look it creates to be reducing opportunities for accountability or individual justice.

Unelected institutions get involved in political matters

A further objection against unelected institutions is that they may have a role to play in dealing with narrow 'technical' matters, but they are inappropriate for dealing with 'political' issues. The difficulty with maintaining such a distinction is illustrated by the work of the Authority.  

Although the 2007 Act does not clearly describe the situation which occurred in the 'Johnson affair', it does provide plenty of scope for the Authority acting in the way it did. The Authority has as an objective the oversight of the production and use of Government statistics. Under s.6, statistics are defined as including "statistics produced by a government department ... or ... any other person acting on behalf of the crown" (s.6(a)). Nothing here suggests that there are certain circumstances, which we might label 'political', when the Authority should not intervene. Indeed, two possibilities follow form the Act which justify the Authority's intervention in the 'Johnson affair':

• It is arguable that in writing the article Mr Johnson was purporting to refer to the Government's official statistics on the UK's contributions to the EU. Indeed, given the long history of the £350 million claim and its misrepresentation of 'gross and net contributions' of the UK Government to the EU, it is barely sustainable to argue that Mr Johnson was not trying to use officially sourced figures in this instance.  
• In producing figures in the article Mr Johnson was writing as a member of the Cabinet and was hence covered by the Act, notwithstanding that he did not appear to be speaking for the Government in writing the piece. Whilst the convention on collective responsibility can be strained, there seems no good reason to suppose that a senior figure such as the Foreign Secretary should be able to step outside of their ministerial duties to reproduce inaccurate data.

Unelected institutions tend to overreach their powers? 

The fear of the unelected over time stretching their powers beyond that lawfully mandated to block the legitimate exercise of executive power is a familiar refrain of those that argue for elected accountability only. Did the Authority in the Johnson affair exhibit such a tendency? 

Under s.10 of the 2007 Act, the Authority is under a duty to produce a Code of Practice for Statistics. In turn, the Code of Practice and its stipulations are referred to as relevant to Ministers at para. 8.15 of the Ministerial Code.

The current version of the Code reproduces an extract from the seven principles of public life, as once voted upon by Parliament and which remain a component of the Ministerial Code. The Code of Practice for Statistics states:

In relation to statistical work, these [principles] are interpreted as follows.
• Integrity – putting the public interest above organisational, political or personal interests.
• Honesty – being truthful and open about the statistics and their interpretation.
• Objectivity – using scientific methods to collect statistics and basing statistical advice on rigorous analysis of the evidence.
• Impartiality – acting solely according to the merits of the statistical evidence, serving equally well all aspects of the public interest.

A later section of the Code states the duties of public bodies in relation to statistics as including:

Ensure that government statements issued alongside official statistics, and referring to, or based upon, them: ... (c.) meet basic professional standards (for example, statistics should be cited accurately, ...) (para.9)

The Code of Practice, therefore, outlines a number of grounds upon which the Authority could conclude that Mr Johnson had inaccurately used the £350 million claim, notwithstanding the fact that the way in which he used the information was undoubtedly political. There is no solid ground to find this an illegitimate instance of overreach.

Unelected institutions should err on the side of caution 

Given the broad and uncertain nature of the issues that they are charged to deal with, unelected institutions tend to be given very broad discretionary powers. An argument may be raised that in response, bodies such as the Authority should err on the side of caution to avoid being dragged into the political domain.

There is no specific power covering the scenario in the 'Johnson affair', but under s.26 of the 2007 Act the Authority's "Board may do anything which it thinks necessary or expedient for the purpose of, or in connection with, the exercise of its functions." Further, s.8 states that 

(1) The Board is to monitor the production and publication of official statistics.
(2) The Board may report any concerns it has about—
(a) the quality of any official statistics,
(b) good practice in relation to any official statistics, or
(c) the comprehensiveness of any official statistics, to the person responsible for those statistics.
(3 ) The Board may publish its findings or any report under this section.

There is plenty of scope, therefore, for interpreting that it is within the Authority's legal competence to intervene in instances where official statistics are used in a manner it deems inappropriate. How it should be exercised is one about which there will inevitably be disagreement. With considerable sophistry, Johnson (and his supporters) later argued that his words should have been interpreted more generously. This is arguable, but the stance of the Authority on the issue was not new, as the previous Chair of the Authority had in May 2016 written a letter outlining his unease with Vote Leave's use of the £350 million claim. It would have been inconsistent, therefore, not to have commented on this occasion.

Unelected institutions fail when they decide matters inconsistently (and can be biased)

A linked argument against unelected institutions is that they offer an inconsistent form of decision-making which undermines their very claim to objectivity. Worse still, their appointment process and past allegiance can expose them to criticisms of bias.

In the 'Johnson affair' it has been suggested that the Authority has been selective in its intervention - in other words, by intervening in this instance the Authority opens itself up to future criticism every time that it chooses not to intervene when a slightly dubious claim of official statistics is made.   

This must be conceded as a risk, but any such accusation is only as strong as the evidence that supports it. In this instance, the website of the Authority is full of examples where the Authority has offered an opinion in a manner and form not too dissimilar than in the 'Johnson affair'. A full analysis of the website might reveal an anomaly in the 'Johnson affair', but even that would need to be weighed against the fact that the Authority had already pronounced its view on the £350 million claim and the seniority of the Member of government involved.

Unelected institutions are ineffective

A general brick thrown at unelected institutions are that they are ineffective. For instance, it may be that Mr Johnson preserves his position as Foreign Secretary even though the Authority concluded that he had misled the public. To conclude that the Authority has therefore had no effect, however, is to misunderstand the nature of the impact of unelected institutions. Evaluation in this area is notoriously difficult, but the influence of bodies such as the UK Statistics Authority is often more subtle than the win/lose outcomes of the courtroom. For instance, a tangible result of the Authority's intervention in the 'Johnson affair' is that the problematic of the £350 million claim has once again been highlighted, and both Johnson and his supporters have in their responses been required to highlight the  nuanced (some would say tortuously so) way in which any claim of such money has to be made if the statistical facts are to be adhered to. A further claim, albeit immeasurable, in favour of the Authority is that such interventions discourage the inaccurate use of government statistics by members of the government. 

Conclusions

The 'Johnson affair' may have only had political relevance for one weekend, but it is much more typical of the day-day activity of the UK Constitution than is often realised. The arguments about the role of the UK Statistics Authority are also ones that are becoming increasingly familiar in British political debate.  In this period of political and constitutional turbulence, we can anticipate more barbed attacks on the constitutional architecture, but should also embrace the legitimate challenges that they raise for defenders of the 'checks and balances' model of the constitution.  

Whether the activity of unelected accountability institutions is effective or not; or whether they are a good use of public money; or whether they perform a role better left to the raw political discourse of the Parliamentary chamber, the press and social media - are all questions that should be regularly asked. In a robust Parliamentary constitution they are also ones that should be resolved through standard accountability channels, in particular through the oversight of Parliamentary select committees. 

Some implications of Brexit for the constitution

Brexit is a landmark, and dramatic, event in British constitutional history. Countless words have already been penned on the subject, but much more will follow over the weeks, months and years to come because whatever happens next the long term impact of the 2016 referendum is profound for our understandings of how the UK Constitution operates. Without touching too much on the merits of Brexit, this post introduces some of the key constitutional issues that have been thrown up in light of Brexit, using hyperlinks to direct students to some of the leading contributions over the Summer of 2016.

Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary

Written with T.T.Arvind and L.Stirton. Originally posted on the UK Constitution Law Association website.

Since the referendum, there has been a lively debate about the process for invoking Article 50 of the Lisbon Treaty. Can Article 50 be invoked by the Prerogative, as Mark Elliott and Kenneth Armstrong have suggested? Will it require Parliamentary consent, as Nick Barber, Tom Hickman and Jeff King, Scott Styles, and Ewan Smith have argued? Will Parliamentary scrutiny suffice, as Adam Tucker suggests?

This post argues that the exercise of the prerogative without Parliamentary consent – as the Government appears increasingly set to do – runs the risk of triggering a full-blown constitutional crisis. This makes it imperative, both as a matter of constitutional law and established constitutional practice, that parliamentary consent is obtained before the process is invoked.

A Constitutional Solution to this Constitutional Crisis

Lindsay Stirton, Richard Kirkham and TT Arvind

On Thursday 23^rd June, the electorate voted, by a margin of 52% to 48% in a consultative referendum in favour of the United Kingdom leaving the European Union. The following day the Prime Minister announced his intention to step down as Prime Minister of the UK, albeit after a period of time. Explaining this decision, the Prime Minister said in his resignation statement

A negotiation with the European Union will need to begin under a new prime minister and I think it's right that this new prime minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

What role should Parliament play in this process?  At one level, the question is one of whether triggering Article 50 can be done by executive act alone, or requires legislation or some Parliamentary procedure. The question is not a purely technical one as to which lever to push—if legislation is required then this might require the consent of the Scottish Parliament by means of a Sewel motion. Scottish First Minister Nicola Sturgeon is claiming this interpretation, though anticipates disagreement from the UK Government.

More fundamentally, what is the constitutional role of Parliament in the process of withdrawal?  Does the referendum mean that it must now remain a mute spectator to events as they unfold?  Or does the constitution require it to take a more active role in the process?

Is Legislation Required to Trigger Article 50?

Let’s start with the text of Article 50 of the TFEU itself. According to Art 50 (1):

 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

David Allen Green does a good job of parsing this provision. It requires, first a decision, and secondly that this is taken in accordance with the Member State’s constitutional requirements. First, he says, a decision could mean any number of things.  

–        a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);

–        as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);

–        a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;

–        a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

As Green points out, each of these would amount to a ‘decision’, but would each be in accordance with the UK’s constitutional requirements? Mark Elliott is right when he suggests that the mainstream view is that Article 50 can be triggered without the involvement of Parliament:

The general view, though, is that the Article 50 process — whereby the UK’s departure from the UK would be negotiated — falls to be triggered by the Government exercising its so-called prerogative powers to conduct foreign policy, rather than by Parliament enacting legislation. This means that when (or if) Article 50 is invoked, that could happen without any legislation being enacted by the UK Parliament. What this boils down to is that Brexit could become irrevocable (unless the EU agrees otherwise, it follows automatically two years after Article 50 is triggered) without the UK Parliament ever enacting any legislation to which the Scottish Parliament could object.

This view is challenged by Nick Barber, Tom Hickman and Jeff King. These authors argue that domestic legislation has become so suffused with EU law—it is implicit in the long title and the general scheme of the European Communities Act 1972 as amended that we should be a member of the European Union. Equally, they argue it is the plain intent of the European Parliamentary Elections Act 2002 that UK citizens should have the right to vote in European elections. For the executive to deny that would be to unconstitutional. To probe further, we have to delve into some constitutional first principles, as well as parsing the UK legislation in some detail.  

Traditionally, the power to conduct diplomatic affairs and to make treaties with other nations falls to the Crown under the Royal prerogative, the residual powers of Her Majesty, exercised on (Prime) Ministerial advice. However, prerogative power gives way in the face of statutory regulation. To clarify, the relationship between statute and prerogative is not like the relationship between statute and common law. In the latter case, while statute can amend the common law, the two can quite happily co-exist, so that many areas of law are a near-seamless co-mingling of statute and common law.

As far as the prerogative is concerned, the relationship with statute is somewhat different. The effect of legislation is not to amend but to displace prerogative. The prerogative power is then said to be in abeyance. That is to say, it is extinguished, but revives if Parliament later repeals its legislation.

It is an established principle of constitutional law—known as the de Keyser principle (after the case of Attorney General v de Keyser’s Royal Hotel [1920] AC 508) that if Parliament has conferred powers on the executive to undertake a certain act, then that act can only be done under statutory powers. To allow otherwise would be to defeat the purpose of legislating in the area. In particular, it would allow the Crown to circumvent any controls or limits that Parliament had enacted. As Lord Atkinson put it in de Keyser’s case:

[W]hen such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same — namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

Any attempt to interpret the legislation governing the UK’s relation with this view should be read in light of this traditionally restrictive judicial attitude towards the limits of Royal prerogative in the face of controlling legislation. Barber, Hickman and King make much the same argument based on Case of Proclamations, (1610) 12 Co. Rep. 74 and Fire Brigades Union Case [1995] 2 AC 513.

We will not deal further with the application of the European Communities Act 1972 which has been addressed by Barber, Hickman and King in their post . However, it is worth emphasising that in addition to this legislation, Parliament has made further statutory provision regarding the exercise of the prerogative power to change rights arising under EU law. Section 2 (1) of the European Union Act 2011 specifies certain conditions which must be satisfied before a “treaty which amends or replaces TEU or TFEU” is ratified:

Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

(2) The referendum condition is that—

(a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,

(b) the referendum has been held, and

(c) the majority of those voting in the referendum are in favour of  the ratification of the treaty.

(3) The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4.

In constitutional terms, this section now forms the bedrock of the mechanism for ratifying changes in our relationship with the European Union.  The mechanism in envisages is one of dual consent.  The consent of the electorate through a referendum is necessary where Section 4 applies, but even there it is not sufficient.  Even where the popular will of the electorate has been made clear, the requirement for Parliamentary consent through an Act remains.  The 2011 Act does not in any way make the referendum result binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011).  The European Union Referendum Act 2015 does not alter this system of dual consent.  

We do not suggest that this means Parliament could or should ignore the will of the electorate.  However, the section empowers it to impose conditions and safeguards, be they procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.  This is a power it can and should exercise in the present situation.  We need not deal with Section 4 in detail. It states conditions under which a referendum is not required. But this does not affect the fact that legislation is contemplated for any amendment to the TFEU or TEU under Section 2.

Now strictly speaking, to trigger Article 50 is to make use of a provision of an existing treaty, rather than the creation of a new one. However, since the effect of would be to set in motion a process by which these Treaties would be changed, it is strongly arguable—drawing on the de Keyser principle—that Section 2 (1) implicitly restricts the exercise of the Royal prerogative to trigger Article 50. Article 50 anticipates not just the modification or amendment, but the complete annihilation of the treaty obligations of the TEU and TFEU. And Section 2 (1) clearly envisages that where such a modification is to be accomplished by Treaty then legislation is required. The question is whether the law restricts the ability of the Crown, by Royal prerogative, to trigger an automatic amendment to the Treaties which would have required legislation to accomplish had it been done by Treaty.

We think that it is quite likely that this would be the case. For one thing, Article 50 anticipates that following notification, a Member State seeking to withdraw from the European Union will enter into negotiations concerning a withdrawal agreement, and such an agreement would clearly be governed by Section 2 (1). It is not unrealistic to suggest that the alternative—that no agreement is reached, and that the Treaties would cease to apply after two years—is similarly governed.  Consider the consequences of the alternate reading.  Although Parliamentary consent to the withdrawal agreement would in theory be required under Section 2(1), a Parliamentary refusal to ratify the withdrawal agreement would in practice have no effect.  This is contrary to the letter and spirit of the constitutional mechanism set up by the European Union Act 2011 Act.  In our view, an executive action which ran the risk of producing such an outcome would arguably be unconstitutional.

In summary, one might say the following. While it is not unambiguously certain that legislation is required in order to trigger Article 50, to do so by any other means would be a constitutional quagmire. The Crown would effectively be in a position of compelling Parliament to legislate if legal chaos were to be avoided. Moreover, since Parliamentary consent (among other things) is required for any Treaty change, it should not be for the Crown acting without Parliamentary consent to accomplish by executive act that which cannot be done by Treaty.

It has long been constitutional practice to secure Parliamentary consent for matters where there was doubt about the scope of the prerogative. The grant of independence to conquered colonies is a classic example.  Invoking Article 50 should be no exception.

Legislative Consent of the Scottish Parliament

If legislation is required, or if the Government heeds our advice that even in the absence of a strict constitutional requirement, it would create unimaginable difficulties to proceed otherwise, then a second issue arises, namely whether the legislative consent of the Scottish Parliament is required. Of central importance is Section 29 of the Scotland Act 1998 which limits the competences of the Scottish Parliament, so that it must not legislate contrary to EU law. Again, Mark Elliot takes the view that (even apart from his opinion, discussed earlier) that legislative consent is not required, since the Sewel convention is precisely that—a convention.

Second, the Scottish Parliament cannot anyway “block” UK legislation on Brexit or on anything else. Certainly, it can withhold consent. But because, as explained above, the UK Parliament is sovereign and can do as it wishes, the absence of consent from the Scottish Parliament would not legally disable Westminster from enacting Brexit legislation. This is so because the “requirement” for consent is not a legal requirement at all: it is, ultimately, no more than a political expectation that the UK Parliament will respect the constitutional position of the Scottish Parliament by not riding roughshod over it in certain circumstances.

There is no thing that we would take issue with in this statement, but it misses one larger point. While it would be “legal” for the Westminster Parliament to legislate for Scotland in this way, in the sense that the courts would give effect to the terms of such legislation it would not (as Elliott acknowledges) be constitutional (eg see Murkens). It would not be possible to say that Brexit has been accomplished by an orderly constitutional process, but has instead been accomplished in defiance of constitutional procedure. It is worth recalling that the text of Article 50 speaks of Member States’ “constitutional requirements”, not merely “as prescribed by law” (to borrow the language of the ECHR). It might therefore be possible for a court—drawing on the approach of Attorney General v Jonathan Cape [1976] QB 752—to recognise the Sewel convention in deciding whether the requirements of Article 50 had been met.

The Way Forward

The legal uncertainties outlined above connect all too closely to the political crisis that the UK currently faces. Indeed, what we are left with is something profoundly unsettling, in which former cherished legal understandings based on Parliamentary sovereignty are in danger of being overwhelmed by a dangerously selective use of an appeal to popular sovereignty. Without some additional procedural route being created to confront this crisis head on, then the prospect of ongoing constitutional turmoil, to add to the economic and political turmoil that has already taken hold, is real. However, what we also have is a once in a life time opportunity to settle not just one, but possibly as many as three or four fundamental constitutional issues. Our proposal to address this problem is as follows:

(i)                As a matter of constitutional convention, whilst it might remain the authority of the PM under royal prerogative to trigger Article 50, it is not one that he is constitutionally obliged to trigger following an advisory referendum. Notably, Prime Minister Cameron declined to pull the trigger, but instead recognised the authority of the referendum by resigning.

(ii)              If Article 50 is to be triggered by the PM, it is an exercise that should only be undertaken once approval has been gained from the electorate through a referendum and Parliament. This reading is supported by the de Keyser principle and the precedent of the June 23 referendum.

(iii)            Parliament should consider itself strongly bound by—that is to say, it should act in utmost deference to—the outcome of the June 23 referendum vote but given that it remains constitutionally supreme it is entitled to lay out procedural conditions on what must happen before and after Article 50 is triggered.

(iv)            Those procedural conditions should include:

(a)  A requirement for the PM to submit his/her proposal for EU negotiation to the electorate before triggering Article 50. We are opened-minded as to whether this requires a General Election, and the need to address the Fixed Terms Parliament Act 2011, or a second referendum.

(b)  A requirement for certain consequences to follow should the response of the electorate continue to be to support the triggering of Article 50. One clear commitment that should be made is to delegate authority to the Scottish Parliament to stage a referendum on independence. Further commitments should be made in relation to Northern Ireland and Gibraltar. 

An alternative to (a) would be to provide for a second referendum once the withdrawal negotiations are complete, if the final withdrawal agreement deviated significantly from what the electorate were promised.  Parliament would, in the statute authorising the invocation of Article 50, set these threshold conditions, based on the promises made by the official campaign to leave the European Union.  If the referendum were to reject the proposals, the UK would remain a member of the EU.  The government would have to obtain the consent of the other EU members to this before commencing on withdrawal negotiations. 

In our view, such a provision will give Parliament a constructive constitutional role to play in the process. Given that the withdrawal negotiations will be led by politicians who campaigned for Brexit, there will be little fear of deliberate sabotage of the process.  At the same time, it will protect the expectations of those who voted for Brexit, and ensure that they have chance to respond if the conditions they were promised Brexit would secure are not in fact secured.

We are aware that a riposte to this proposal is that it disrespects the popular will of the electorate demonstrated by the results of the June 23 referendum. But the counter-argument is that such a fundamental shift in constitutional design as Brexit compels will not be stable unless the procedure is seen to be fair by the losers to the debate as well as the winners. Indeed, given that some of the most influential figures in the leave campaign now seem to have reneged on some of the commitments made during the campaign (e.g. immigration) then it is probable that even those who originally voted to leave the EU will be fundamentally dissatisfied with the eventual terms of the UK’s departure. They would be right to be dissatisfied, as they are failing to give due respect to the popular will expressed in the referendum.  This, we suggest, makes it necessary for Parliament to use the system of dual consent under Section 2(1) of the 2011 Act to ensure that the withdrawal process is adequately policed.  The suggestions we have outlined above will, in our view, accomplish that end.

 

One of the mantras of the leave campaign was ‘to take back control’. A first act of taking back control is to institute a process that allows all parts of the UK to take responsibility for the proposed design of the new constitutional order. Putting the process in place should be the duty of Parliament. If Brexit really is the will of people it is hard to see on what basis this proposal could be rejected.