Time has not stood still for Public Law over the last two years; far from it. Devolved government has been restored to Northern Ireland after a three-year gap. There has been a tug-of-war of dominance between Parliament and the government over Brexit. The Supreme Court has strongly consolidated its position as guardian of constitutional principle with the decision in Miller/Cherry in 2019, and after a rare Christmas election in December 2019, the UK left the European Union on 31 January 2020, shortly before the impact of the COVID-19 pandemic, the restrictions of lockdown, and the introduction of a new body of ‘coronavirus law’.

Brexit

Two years ago, Theresa May was Prime Minister and the UK was set to leave the EU on 29 March 2019, enshrined as exit day in the European Union (Withdrawal) Act 2018. In the autumn of 2018, the UK negotiated with the EU a withdrawal agreement and a non-legally binding political declaration on the future relationship between the UK and the EU which Mrs May presented to Parliament for approval, but between January and March 2019, MPs in the House of Commons overwhelmingly voted against the withdrawal agreement three times. The main issue was the Northern Ireland backstop which would guarantee an open border between the UK and Ireland if the UK and EU could not conclude a free trade agreement. MPs also voted against leaving the EU without a deal and pushed for extensions to the withdrawal date which Mrs May twice had to request. The first extension was to 12 April 2019.

In an attempt to break the deadlock, Parliament asserted itself over the government. Under what is known as ‘the Letwin amendment’, MPs were able to take control of House of Commons business on specified days which enabled MPs to vote on their preferred alternatives to the government’s withdrawal deal, although none of their options achieved a majority. It also enabled Yvette Cooper MP to introduce a Bill which was fast-tracked through Parliament, coming into force as the European Union (Withdrawal) Act 2019. This required the prime minister to request another extension to prevent a no-deal exit on 12 April. Mrs May and the European Council agreed a new date of 31 October.

Unable to progress the withdrawal agreement through Parliament, Mrs May resigned as prime minister on 24 May, and was succeeded by Boris Johnson who made it clear that he wanted the UK to leave on 31 October with or without a deal. In September, the European Union (Withdrawal) (No 2) Act 2019 (the Benn Act) was passed requiring the prime minister to request the European Council for an extension to 31 January 2020 if Parliament had not approved a withdrawal agreement, or leaving without one, by 19 October. Mr Johnson made the request and exit day was put back to 31 January. The UK then negotiated a revised withdrawal agreement and political declaration with the EU, reaching agreement on 17 October 2019. Boris Johnson called for a general election on 12 December 2019, Parliament voted in favour of an election and, campaigning on a promise to ‘get Brexit done’ by the end of January 2020, Boris Johnson won a majority of 80 seats which enabled the Brexit process to reach its final stages.

The European Union (Withdrawal Agreement) Act, which implements the withdrawal agreement into UK law, received Royal Assent on 23 January 2020. The Prime Minister signed the withdrawal agreement the following day, and at 11pm on 31 January 2020, the UK left the European Union, entering a transition period that is due to run until the end of the year.

The Miller/Cherry decision

The government attempted to assert itself over Parliament at the end of August 2019 by proroguing it, which would effectively have suspended Parliament for five weeks. Usually the process of prorogation ends a current session of Parliament for a few days to allow for a new legislative programme to be drawn up until a Queen’s speech begins a new session. It is a prerogative power exercised by the Crown by which the Prime Minister advises the Queen that Parliament should be prorogued, but a five-week prorogation is highly unusual, especially at a time when Britain was due to leave the EU on 31 October 2019 and Parliamentary scrutiny of the government was crucial. Two legal challenges to the prorogation were launched: one in the Scottish courts (Cherry and others v Advocate General for Scotland [2019] CSOH 70) and one in the High Court (R (Miller) v The Prime Minister [2019] EWHC 2381 (QB)). Both cases failed at first instance because they raised a non-justiciable matter, i.e. the political decision to prorogue Parliament was not a matter which was suitable for the courts to determine, although on appeal in the Cherry case, the Inner House in Scotland ruled that it was justiciable and furthermore was unlawful as it sought to ‘stymie’ Parliament’s scrutiny of the government (Cherry and others v Advocate General for Scotland [2019] CSIH 49).

Both cases went on appeal to the Supreme Court (R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41) where an eleven-strong panel of Justices agreed unanimously that the ‘one off’ case raised a justiciable issue and that the advice to the Queen to prorogue Parliament was unlawful because it was outside the limits of the prime minister’s prerogative power to interfere with Parliament’s ability to carry out its constitutional functions. Constitutional principles can limit a prerogative power where they would be in conflict ([49]). The principle of Parliamentary sovereignty would be undermined by the government having an unlimited power to prorogue Parliament for as long as it wanted ([41-42, 44]) and the principle of government accountability to Parliament would be undermined by Parliament’s inability to scrutinise government action while it was prorogued, with the risk of unaccountable government increasing with a longer prorogation ([46, 48]). In reaching its decision, the Court held up to the light another facet of Parliamentary sovereignty: that Parliament must not be prevented by the government from carrying out its constitutional functions of making law and scrutinising the executive.

The coronavirus outbreak

The COVID-19 pandemic has generated a new body of temporary law, both primary statute and statutory instruments (176 of the latter and counting (https://www.hansardsociety.org.uk/publications/data/coronavirus-statutory-instruments-dashboard)). On 23 March 2020, as coronavirus spread though the community, the Prime Minister announced the lockdown, which imposed the most stringent restrictions on personal freedom seen in peacetime as the public was asked to stay at home. The Coronavirus Act 2020 (fast-tracked through Parliament in four days) received Royal Assent on 25 March 2020 and introduced a wide range of extraordinary measures designed to slow the spread of the virus and enable the Government and public services to respond to the emergency. The Act, which because of its exceptional nature is time-limited to two years, had to take account of (a) devolution and ensuring consistency, given that relevant powers differed across the UK; (b) making provisions that could be suspended and reactivated as changing circumstances required; and (c) ensuring the need to balance protecting public health with safeguarding individual rights.

Enforcement of the lockdown kicked in with secondary legislation passed under an older statute, the Public Health (Control of Diseases) Act 1984. As health is a devolved matter, the governments of Scotland, Wales and Northern Ireland made similar regulations to those made by the UK government for England. In England, the lockdown regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, required non-essential shops and hospitality and entertainment businesses to close, and restricted movement and gatherings of more than two people from different households, making it an offence to leave home without reasonable excuse. The regulations came into force as a matter of urgency on 26 March and were only approved by Parliament on 4 May, by which time they had been amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 to clarify that no one could leave or be outside the place where they live without a reasonable excuse. Since then there has been a series of amendments and fresh regulations as lockdown has begun to ease. The lockdown regulations were repealed on 4 July by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 which eased lockdown measures in most of England, with separate regulations coming into force for Leicester. More localised measures were introduced on 18 July with the Health Protection (Coronavirus, Restrictions) (No. 3) (England) Regulations 2020 which gave local authorities powers to respond to coronavirus transmission in their area. The use of secondary legislation, particularly where statutory instruments have not received Parliamentary approval before coming into force, has raised issues of democratic legitimacy and rule of law concerns, but the regulations have been subject to regular review by the government.

Judicial review challenges to the government response to the coronavirus outbreak are coming into the courts but the chief one to date is R (Dolan and Others) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin), where the claimant were unlawful because they were ultra vires and irrational, and the restrictions on movement breached various rights protected by the ECHR. The court refused permission for judicial review, holding that the Secretary of State had the legal power to make the regulations and the government had lawfully and rationally assessed the risks posed by coronavirus. The Secretary of State had not fettered his discretion and had had regard to relevant considerations, and the restrictions were not a disproportionate interference with Convention rights. By this time, a number of restrictions in the regulations had been replaced so the claim for judicial review of them was academic. In another lockdown case (R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)), an application for an interim order to enable a mosque to hold Friday prayers during lockdown was unsuccessful, and infringement of the claimant’s rights under Article 9 ECHR was not disproportionate.

As the UK has eased out of lockdown, the response of the four nations to the COVID-19 outbreak has begun to show a divergence, with easing of restrictions happening at different rates. As a result, it has highlighted the impact of devolution across the UK.

Other developments

Among the many other developments was the Supreme Court’s significant decision in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that, despite an ouster clause, the decisions of the Investigatory Powers Tribunal were subject to judicial review. In UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill -A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, the Supreme Court held that parts of the Scottish Continuity Bill were outside the Scottish Parliament’s legislative competence, and in R (Hemmati) v Secretary of State for the Home Department [2019] UKSC 56, government policy on detaining asylum seekers who had entered the UK illegally via the EU was found be unlawful. There was an unsuccessful challenge to the lawfulness of the facial recognition technology scheme in R (Bridges) v Chief Constable of South Wales Police and Secretary of State for the Home Department [2019] EWHC 2341 (Admin)), and the third runway at Heathrow was the focus of several judicial review challenges, culminating in R (Plan B Earth and Others) v Secretary of State for Transport and Others [2020] EWCA Civ 214, where the Court of Appeal held the government policy statement for Heathrow expansion was unlawful. Lord Sumption argued in the 2019 Reith lectures that the power of the courts is increasing and becoming more political while Parliament’s power is decreasing, and last but not least, Brexit has prompted the question of whether it is the right time for a written constitution.

There is certainly the inescapable sense that the rate of change in the UK’s constitutional landscape has gathered pace over the last two years.

Anne Dennett

August 2020