Posted by: westlancashirerecord | January 23, 2019

Laws QC On Changes In The Law

Sir Stephen Laws KCB QC (Hon)  was First Parliamentary Counsel from 2006-12, Chief Counsel. He knows what he’s talking about. Bonehead Bercow should listen to him.

He writes “Only changes to the law can stop the progress of the changes that have already been set in law by an Act of Parliament. The European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 from “exit day” on 29th March 2019. The Government has a clear legal duty to ensure that the repeal comes into force on that day and that the UK does not remain a member of the EU after the domestic legislation giving effect to the UK’s obligations as a member have ceased to have effect in accordance with Parliament’s statutory intentions. There are only two ways in which the repeal can be stopped from happening on that day. The first is by an order under section 20(4) of the 2018 Act postponing that day. Only the Government has the power to make the order, and then only if it has agreed an extension of the Article 50 period with all the other members of the EU. The order then needs to be agreed by each House of Parliament”. 

The other way is by means of new primary legislation passed by both Houses that requires the Government either to secure the extension of the Article 50 notice period or to revoke the notice and then, as the case requires, consequentially either to postpone or to cancel the repeal.

“Executive summary: 1. It is a mistake to assume that the House of Commons could engineer a change to the law to postpone or cancel Brexit without persuading the Government to acquiesce and participate in securing the change. 2. The risks to which an attempt to do so would give rise include the contravention of fundamental constitutional principles based on centuries of history. 3. They include the risk of involving the Queen in a legislative showdown between Parliament and the Government. 4. Changing the law to secure a postponement or cancellation of the repeal of the European Communities Act 1972 (which has already been set for 29th March 2019), or for holding a second referendum, would revive or create substantial commitments to public expenditure. 5. Provisions of a Bill giving rise to such commitments cannot pass the House of Commons unless they have been authorised by a resolution of the House, and the motion for such a resolution can only be moved if the Crown’s recommendation of it has been signified by the Government. 6. If the Speaker chose to allow this rule to be dispensed with or ignored, that could have unpredictable, and potentially horrific, constitutional consequences. 7. It could raise a question whether the Government would be entitled or might feel required to reassert its constitutional veto by advising the Queen not to grant Royal Assent to the Bill.

“If SO 14 is disapplied and members of the House of Commons pass a resolution on the day they claim for themselves, it can only be a resolution instructing the Government to do something to secure a change in the law. It can have only as much force as the House is willing to give it with the threat of a vote of no confidence. Moreover, it needs to be recognised that the time for such a vote is very short and, once a vote of no confidence were passed, the scope for further action is severely limited. The Cabinet manual says that the purdah rules for elections apply after such a vote has been passed. That would stop further changes to the status quo. Thereafter if there is to be an election, Parliament is removed from the scene, and unable to act, from its dissolution for an election until, effectively, about ten days afterwards”.


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