, 14 tweets, 3 min read Read on Twitter
I expect to be on @BBCr4today at 7.10 am commenting on this suggestion that the Government may attempt to use an Order of Council to suspend the Benn-Burt Act that requires the PM to seek an Article 50 extension. /1
My view is that while a Government attempt to do this may cause delay (because of the need for judicial review) there is no sound legal basis for what appears to be proposed. /2
It is unclear from Sir John Major's speech exactly what may be in contemplation. One possibility would be an Order made under the royal prerogative. But that would plainly be incapable of suspending an Act of Parliament. /3
Attempting to use the prerogative to suspend an Act of Parliament would amount to an assertion of a dispensing power - a power that is explicitly denied by the Bill of Rights. /4
Using the prerogative to suspend an Act of Parliament would also be flatly inconsistent with fundamental constitutional principles, according to which primary legislation enacted by Parliament takes priority over the prerogative. /5
Another possibility is that the Government is contemplating the use of a statutory power to suspend the Benn-Burt Act. It is possible in principle for one statute to authorise the Government to amend or repeal (or suspend) another statute: a so-called Henry VIII power. /6
However, the Government would need to identify a statute that authorised it to suspend the Benn-Burt Act. The most likely candidate is the Civil Contingencies Act 2004. But this does not in fact provide a legal basis for what appears to be in contemplation. /7
Emergency regulations under the Act can only be made if the relevant person (Her Majesty in Council or, in urgent cases, a senior Minister) is satisfied there is or is going to be an emergency, and that the measures in the order are urgently needed to address the emergency. /8
It is very difficult to see how those conditions could be met. An emergency means threats of serious damage to human welfare, the environment or national security. No emergency exists or is imminent that would justify suspension of the Benn-Burt Act. /9
For these reasons, I do not think that there is any credible legal basis for an Order capable of suspending the Benn-Burt Act. /10
That is not, however, to doubt that if the Government purported to make such an Order, it may sow confusion and cause delay to the fulfilment of the duty imposed by the Benn-Burt Act, thus reducing the likelihood of the European Council granting an Art 50 extension. /11
It is worth adding that Sir John's use of the term Order *of* Council has caused some uncertainty. Such Orders can be made under statutory or prerogative power, their defining feature being that they do not require the Queen's approval. /12
However, an Order of Council cannot prevail over an Act of Parliament if made under the prerogative. If made under statute, it can prevail over another Act of Parliament only if the parent statute authorises that. /13
It follows that Orders of Council can, by virtue of being Orders of Council, have no special status that distinguishes them from other forms of legislation that are legally inferior to Acts of Parliament. /ends
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