Parliament must act quickly to exert influence if it wishes to prevent a ‘no deal’ Brexit

NGQojaZG_400x400 (1)In four months’ time, the extension to the Article 50 period agreed in April will expire. The UK will have a new Prime Minister by then, although it remains unclear what position they will take if the Commons continues to refuse to approve the Withdrawal Agreement. Jack Simson Caird analyses the legal and political mechanisms available should parliament seek to prevent the next Prime Minister taking the UK out of the EU without a deal.

Boris Johnson has said that if he is the next Prime Minister the UK will leave the EU on 31 October with or without a deal. Theresa May, made the same pledge before the original Article 50 deadline on 29 March. However, after coming under significant pressure from MPs, she did not follow through and sought two extensions from the EU (resulting in the current exit day of 31 October).

Since Theresa May said that she would step down, there has been significant debate over whether the House of Commons could prompt Prime Minister Johnson to avoid ‘no deal’. In this post, I argue that MPs could stop a Prime Minister determined to deliver ‘no deal’ by putting the new leader under extreme pressure to reveal his position on Brexit from the very beginning of his premiership. There is no guarantee that steps taken by parliament to prevent ‘no deal’ would be legally effective, but the events in the first half of 2019 have shown that parliamentary pressure can result in a shift in the government’s position. It is constitutionally unsustainable for a government to pursue a policy which does not have the support of a majority of MPs. This fact will be front and centre from the very moment the new Prime Minister takes over.

Commanding the confidence of the Commons and ‘no deal’ Brexit

When the Conservative Party appoints a new leader, the next natural step is for Theresa May to go to the Queen and recommend that the MP chosen – likely to be Boris Johnson – is best placed to command the confidence of the Commons and should be appointed Prime Minister. This is usually a constitutional formality. However, unlike when Theresa May was appointed, the next Prime Minister will take over a minority administration. Furthermore, Theresa May resigned after it became clear that there was no prospect of her being able to get a majority for the Brexit deal in the Commons (and because she was not prepared to leave without a deal in the face of opposition from a majority of MPs). In fact, some Conservative MPs have already indicated their potential willingness to vote down a Johnson government if the new Prime Minister sought to pursue ‘no deal’. Should such claims become louder in the coming weeks, Theresa May might struggle to give the necessary assurances to the Queen that the person she recommends can command the confidence of a majority of MPs. Even if she does, the new Prime Minister will clearly be in a delicate constitutional situation. Continue reading

Injudicious Talk?

So it’s finally happened. The dogs on the street knew the identity of CTB, the footballer who held a super-injunction prohibiting publication of details of an alleged affair. Yesterday afternoon,in the course of a Commons debate on privacy, John Hemming MP used the protection of parliamentary privilege to name CTB as Ryan Giggs. [http://www.bbc.co.uk/news/uk-13516941] As a result the media (and this blog) have been freed to repeat this information without threat of legal sanction. This is one of several similar incidents recently. In March, Mr. Hemming used privilege to reveal the existence of an injunction held by Sir Fred Goodwin and last week Lord Stoneham stated in the House of Lords that the injunction in question related to an allegation of an affair.

These incidents suggest that parliamentarians may be starting to assert a direct role in interpreting the appropriate boundaries between privacy and freedom of expression and in challenging rival judicial interpretation of the balance of these values. There is nothing wrong with this as a matter of constitutional principle. Parliament has always acted as supreme constitutional authority (just as judges have always made law). However, direct challenges to the authority of the judiciary are unusual because if Parliament doesn’t like the wider implications of a judicial decision it can simply change the law (but of course Parliament doesn’t appear to be sure quite what an alternative privacy law should look like, and doesn’t want to court media criticism any more than do judges).

The reality is that the judicial position that underpins the jurisprudence on privacy in Britain is entirely defensible. Of course it is possible to disagree with it, but is it so far beyond the pale that it deserves the kind of criticism it has received? Only last Friday, Lord Judge suggested that MPs should think carefully before using privilege to frustrate injunctions in this way. [See the press conference for Lord Neuberger’s report on Super-Injunctions: http://www.judiciary.gov.uk/Resources/JCO/Documents/110520-superinjunctions-transcript.pdf] And yesterday morning a fresh application to discharge Mr. Giggs’ injunction had already been rejected by the High Court (a second application after Mr. Hemming’s statement was also rejected). Given the timing, Mr. Hemming’s statement thus represents something of a challenge to the authority of judges; a minor one, perhaps, but a challenge nonetheless. Depending on one’s point of view, this may also amount to a challenge to the rule of law. Is it really worth having a constitutional crisis over an alleged celebrity affair?

There is an interest in privacy – particularly in respect of the most intimate aspects of family life – that tends to go unspoken for in this debate. Partly, this is because the media has a professional (and pecuniary) interest in making secret things public and because, to some extent, politicians follow agendas that are set by the media. The widespread media position that super-injunctions amount to press censorship is of course literally true, but insufficiently fine-grained. The media account of the privacy debate significantly underplays the damage that publication causes to families. The super-injunction granted to Trafigura in 2009 (which prevented publication of a report into the dumping of toxic waste in Africa) [http://www.guardian.co.uk/media/2009/oct/20/trafigura-anatomy-super-injunction] was orders of magnitude more worrying than an order that suppressed some celebrity gossip about a footballer and a Big Brother contestant. The balance of interests in the first case is not the same as that in the second (not least because companies don’t have family lives). And it’s not as though it’s hard to see the qualitative difference between these two kinds of story – the common ‘slippery slopes’ argument that tends to blight discussion of freedom of expression and privacy is not always well founded. (Readers may want to see Conor Gearty’s more extensive argument about privacy and the Max Mosley case on the UK Constitutional Law Group Blog available at: http://ukconstitutionallaw.org/2011/05/16/conor-gearty-max-mosley-in-strasbourg/).

Of course, it might be reasonable to argue that the balance of interests was changed in this case by the fact that Mr. Giggs’ name was already public knowledge through circulation on Twitter and the internet more generally. It is possible that we are in a world in which privacy is impossible for people who are in the public domain (and perhaps for private citizens too). In that context a privacy injunction might be as effective as an injunction that water should run uphill and simply not worth having. Nonetheless the courts appear to have been receptive to the argument by Mr. Giggs’ lawyers that there were important differences between publication on Twitter and publication in the print and TV media, with all that the latter could entail [see:  http://www.thetimes.co.uk/tto/law/article3030225.ece]. A thoughtful Guardian editorial makes a similar point today: http://www.guardian.co.uk/commentisfree/2011/may/24/privacy-high-politics-low-gossip.

All of that said, Mr. Hemming has not had things all his own way. The response from fellow parliamentarians has been notable in its lack of support for his position, with a number expressing regret or emphasising that privilege should not be used in this way. Responding yesterday in the same Commons debate to a suggestion that the judiciary should ‘butt out’, Attorney General Dominic Grieve MP said that ‘I have to say to my hon. Friend that I am not quite sure what they are supposed to butt out from. If he is suggesting that they should butt out from doing their duty and following the judicial oath that they take, I am afraid I disagree with him.’ And in the Lords, former Lord Chancellor Lord Falconer commented that: ‘There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy,’ and noted also that the issue of privacy had been the subject of significant debate when Parliament enacted the Human Rights Act. Even Mr. Hemming’s own party leader, Nick Clegg, (speaking today) was critical. [http://www.thetimes.co.uk/tto/news/politics/article3037640.ece]

No one is suggesting that the general authority of the judiciary is likely to crumble over this. But there is a very public challenge here from some parliamentarians and from the media and so far the judiciary appear to be sticking to their guns. The Attorney General has announced a joint committee to investigate this issue. It will be interesting to see what happens next.

Lord Neuberger’s report on Super-Injunctions is available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf

Parliamentary privilege: clear as mud but not quite so dirty

Privilege: a word that calls to mind the protection the rich or the powerful from the rules of ordinary people. Viewing this phrase in light of the Supreme Court decision of last year on the trial of three MPs and a Lord for offences relating to expenses does little to dispel this image. Parliamentary privilege has had more attention of late than for many years, as the FAQs that littered newspaper websites show [1].

So what is parliamentary privilege?  In short, privilege is made up of two rights of parliament. First, that “the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament” arises from article 9 of  Bill of Rights 1689. Second, Parliament has the exclusive jurisdiction over its own affairs as developed through case law.

Why is this so important? If parliamentarians can’t be sued for defamation for what they say in parliamentary business, they can speak freely without fear of legal costs, and if Parliament takes responsibility for disciplining those who break its rules it cannot be improperly influenced by those outside.

A parliamentary question would clearly be part of parliamentary proceedings, as Parliament needs information. Giving evidence to a select committee is also covered, as keeping the identities of those giving evidence helps ensure that evidence is complete and honest. Recent high profile examples of the use of privilege are more sensational: the search of Damian Green’s office as part of a police inquiry into allegations that he conspired to commit misconduct in a public office, the prosecution of Harry Greenway MP for alleged bribery offences, and most recently the Supreme Court case that decided that expenses claims were not similarly protected. Whatever the rights or wrongs of the actions of those involved, privilege does not keep good company in the media.

Why, then, is there so little understanding of parliamentary privilege? First, the development of the concept through the common law means that information about privilege is just not that accessible to the general public. Even though the expenses scandal captured the public attention, few will have read the Supreme Court’s 48-page analysis. Second, where the mystique of the courts meets that of Parliament the situation is unlikely to be improved. Finally, when MPs are seen trying to use privilege to cover their misdeeds, the public are unlikely to feel much sympathy.  

So where next? While reform fell by the wayside in 1999, perhaps an Act codifying and modifying parliamentary privilege could combat misunderstandings, and provide an opportunity to address some of the stranger historical quirks. Such a proposal appeared in last year’s Queen’s speech, but meanwhile, in the wake of the expenses scandal, the name “parliamentary privilege” seems to fulfil every prejudice people have of parliamentarians and can do nothing to help their public image.

[1] The Independent, Guardian, Telegraph and BBC all published guides or FAQs on the topic