Barrister Rose Slowe believes that unless there is a further Act of Parliament authorising Brexit in one form or another, we simply cannot leave the EU as a matter of law. These are some extracts from Slowe’s interview on Radio 5 on 28 August.

Interviewer Suzanne Courtney’s questions are in bold

Rose, what is your view about what the Prime Minister, Boris Johnson, has done (in proroguing parliament)?

I think it is a constitutional outrage. Any legislation that has not been completed when the session ends, on a date between 9 and 12 September, will lapse and not be carried over into the next Parliamentary session. Prorogation therefore thwarts any efforts by Parliament to legislate so at to prevent a no-deal Brexit.

Parliament was not bound by the referendum. MPs are there to act in the best interests of the country, which includes those who were too young to vote in the referendum. If they see a Brexit in the form offered as not being in the best interests of the country, they are under no obligation to abide by a non-binding referendum.

The UK as a whole did not vote to leave the EU. So when you look at the countries that make up the UK – large sections of Wales, Scotland and Northern Ireland voted to remain – is there not a fear that this very pushy way that Boris Johnson is attempting the force Parliament into a certain corner risks the entire break-up of the Union and then we are left as separate lone countries with very little power. Rose, what are your concerns when it comes to the potential break-up of the UK over this issue?

My main concern is the fact that a no-deal Brexit is in breach of the Belfast Agreement. There is no way to get around the fact that there will need to be some form of hard border on the island of Ireland. If Northern Ireland is no longer part of the European Economic Community and/or the Customs Union and Ireland is, there will have to be some form of checks on the border. The backstop is effectively kicking an irresolvable problem down the road. We are hoping that technology somehow catches up to offer a solution, but the reality as it stands now is that a no-deal Brexit breaches the Belfast Agreement.

I want to talk more now about prorogation. One of the things that you said earlier Rose is that when Parliament normally breaks for conference season it is like putting a pause on the Parliamentary process so that Bills which are making their way through can continue. The difference here is that Boris Johnson is bringing an end to the session so that any legislation that is making its way through Parliament has to start again from the beginning. Have I got that right?

Yes, that is correct.

So, the conversations that we know have been happening between MPs that voted to remain and are very unhappy, how much time would this group of politicians have to have some input into the political process – how many days are we looking at?

Parliament will sit again on 3 September, so they would have to introduce a Bill and complete it before the Parliamentary session ends on a date between 9 and 12 September. That is unrealistic. Then, when Parliament comes back on 14 October for the Queen’s Speech, which subsequently has to be debated, they would then have to introduce legislation and ideally get that enacted before the European Council meets on 17 October if that Act is going to state that Parliament does not authorise a no-deal Brexit and an extension is required. Any such Act passed after the 17 October summit and before 31 October would require the Heads of State that make up the European Council to agree to meet again in order to grant the extension that that Act requires. So, realistically, prorogation offers no time for any effective legislation to be passed. It is effectively preventing Parliament’s democratic and constitutional role in the Brexit process.

There has been a lot of talk about the UK constitution, is there actually a written constitution?

No, we have an unwritten constitution which has a number of principles. In the checks and balances of power it is the responsibility of the UK courts to determine the unwritten constitution. Fortunately, we had the Supreme Court, the highest judicial authority, in the Miller litigation look at the historic precedent of the unwritten constitution and rule that leaving the EU was not something that the Government could do by relying on the Royal Prerogative. Parliament brought us into the EU with the 1972 European Communities Act and by doing so has given citizens’ rights under EU law, as such only Parliament can take us out of the EU and strip citizens of those rights in accordance with the constitutional principle of parliamentary sovereignty.

When it comes to Article 50, which we know can still be revoked, does that Treaty provision actually do anything on 31 October?

That is subject to legal debate. Article 50 has a number of sub-provisions. The first one provides that a Member State must decide to leave the EU in accordance with its domestic constitutional requirements. The Supreme Court said in Miller that it has to be Parliament which legislates to bring us out of the EU, and arguably no such legislation has been passed so there has not yet been a constitutionally compliant decision to leave. Therefore, under Article 50, the notice we have issued might simply lapse because it has been proved ineffective. The EU does not have the capacity to expel a Member State against its constitution.

What we are constantly told is that on 31 October we are out. You are saying it is not necessarily that simple?

My argument is that Parliament has to decide the form that Brexit takes, because with that decision comes the extent of citizens’ rights that are stripped away and that is a matter for Parliament. So, unless there is a further Act of Parliament authorising Brexit in one form or another – with a withdrawal agreement, no-deal or so that we stay part of the European Economic Community and/or the Customs Union – we simply cannot leave the EU as a matter of law. Accordingly, by proroguing parliament, the Government might have actually shot itself in the foot and ruined the chance of meeting the 31 October deadline.

The 2017 EU Notification of Withdrawal Act simply gave the Government the authority to commence the Article 50 negotiation process, a process which we now know can be stopped at any point by the UK simply revoking its notice. So, that was not a be all and end all endorsement of Brexit.

The referendum did not specify what type of Brexit the people were voting for, and there are a number of different forms that Brexit could take. To assume that the majority all endorsed a no-deal Brexit, which the Government is now trying to enact, is unfounded.

Boris Johnson simply does not have the power to bring the UK out of the EU without an Act of Parliament. That is how our constitution works. And he is bound by the law; we live in a society where a core constitutional principle is the Rule of Law and that applies to everyone, including the Government.

I am worried about the Rule of Law not being upheld. Any Brexit that does take place should be a lawful one and done in a constitutionally compliant manner. I am concerned about a Government coming in and trying to thwart the constitution and Parliament’s role in order to bring about the Brexit it wishes which was not necessarily the Brexit that the people voted for and certainly not that which our elected legislature deems to be in the best interests of the country.

I cannot possibly predict the future, and obviously my area of expertise is the law rather than politics. What I am hoping is that there will be legal action, our Supreme Court will review this constitutional crisis that the UK has found itself in and determine what the Government can and cannot do within the checks and balances of power.

Rose Slowe is a barrister at Foundry Chambers. Prior to joining the Bar, Rose Slowe LLM was an Honorary Research Fellow at the University of Bristol Law School. She co-authored a leading book on the European Union and the Council of Europe, published by Cambridge University Press. Rose has also published widely and debated in Parliament on matters pertaining to the interplay between the domestic UK and European legal orders.

It is Rose Slowe’s contention that the prorogation is an attempt by the Government to curtail Parliament’s democratic and constitutional role in the Brexit process in accordance with the decision of the Supreme Court in Miller.

August 29th, 2019

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