The suspension of parliament increases legal scrutiny of Brexit – and possibly a public inquiry?

29 August 2019

The suspension of parliament on Wednesday 28 August, at time of political crisis, is now the subject of intense legal scrutiny across the United Kingdom. Lawyers for Gina Miller have lodged an application for judicial review, and are expected to argue that Boris Johnson’s advice to the Queen is an improper use of power, designed to curtail the legislature, resulting in infringement of the constitutional bedrock of parliamentary sovereignty.  A hearing in the Scottish courts is taking place today and it has also been reported that the Northern Irish courts will consider tomorrow an application for an urgent injunction to compel Boris Johnson to reverse his advice to the Queen.                             

These cases will all be hard fought and will present difficult challenges for the judiciary: judges will be hesitant to interfere in the political maelstrom but will also be conscious of the need to ensure parliamentary sovereignty is preserved. 

In the short term, whilst judicial caution may prevail in these cases, legal scrutiny of Brexit is here to stay. With “Exit Day” looming, there have been repeated calls from both industry and campaign groups for a public inquiry into Brexit. Yesterday’s suspension of Parliament will no doubt lead to a strengthening of their resolve. Meanwhile, the consistent position of the government – that no Inquiry should be established – is likely to remain resolute.

Interestingly, the decision not to undertake a public inquiry into concerns about alleged improper influencing of the referendum outcome, is already the subject of a legal challenge by the “Fair Vote” group. And, hot on the heels of the Miller case, a hearing on that is reported to be scheduled for early October, just a matter of weeks before Exit Day.

Here, we glance at a few of the legal issues which are likely to arise, surveying recent legal challenges to decisions not to hold public inquires, as well as the ministerial power to hold a public inquiry, and the all-important terms of reference.

Challenges to decisions not to hold public inquiries

Successful challenges to decisions not to hold public inquiries have been relatively rare in recent times. Those cases have tended to involve, at least to some extent, Convention Rights and the State’s discharge of the State’s investigatory obligations under Articles 2 and 3. See, for example, the Supreme Court’s judgment of earlier this year in Finucane brought by the widow of murdered solicitor Patrick Finucane. The court there held that despite having created a legitimate expectation that an inquiry would be held, it was open to the state to depart from that expectation. It was however held that the state had failed to comply with its investigatory obligations under Article 2.

Litvinenko, brought by the widow of Alexander Litvinenko, who was also found to have been murdered was another such challenge. The reasons given by the Secretary of State for refusing a public inquiry were carefully examined by the Divisional Court in its judgment. There the court concluded that there had been compliance with the Article 2 investigatory obligation on the facts but that the other reasons given by the Secretary of State were insufficient to justify a refusal to undertake a public inquiry. The decision was quashed.

Following this it would have (legally) remained open to the Secretary of State to make the same decision again but to give better reasons for doing so. But arguably because of the strong views expressed by the court, and the prevailing political wing, the Secretary of State subsequently decided to hold a public inquiry which reported in early 2016.

The context is however very different for the Fair Vote campaigners, making their legal challenge more difficult.

The discretion to hold a public inquiry

Even if the Fair Vote legal challenge is successful, a public inquiry is not guaranteed. This is due to the discretion given to Ministers as to whether to hold an Inquiry and as to what form it should take. Political, rather than purely legal, considerations are more likely to lead to a public inquiry being established.

The government will be most acutely alert to promises made by the opposition to hold an inquiry once elected. These have led to the establishment of inquiries in the past, with the post-legislative scrutiny of the Inquiries Act 2005, providing some interesting examples.

In the context of Brexit, the opposition’s intention is not yet clear, but it is worth noting, Sir Keir Starmer’s reported recent letter to the Cabinet Secretary about the relevance of spending decisions being properly documented “in the event of any future public inquiry or investigation into this matter.”

 

Terms of reference of a public inquiry

Even if a decision were reached that an inquiry should be set up, there will be a number of very important issues to decide before it is set up. Most important, are the “terms of reference” under which a public inquiry is established, which are widely recognised as being a crucial factor in determining an inquiry’s length, complexity, cost and success. But in order to draft those effectively, it will be necessary to have a clear view as to what the purpose (or, more likely, purposes) of the Inquiry are to be.

At the moment a large number of possibilities exist, including the referendum campaigning process, no-deal preparations (or lack of), and now the prorogation of parliament and its constitutional impact; it is equally possible to come up with good reasons to justify investigating all of them fully. As seen in the Saville Inquiry (Arms to Iraq) and the Chilcot Inquiry (the Iraq Inquiry), political decisions of national significance are very much open to the scrutiny of a public inquiry.

 

Conclusion

In conclusion, a number of challenges await, but perhaps the greatest will be for any future Inquiry Chair, who will the unenviable task of balancing political expectation with decisions about how to manage the process efficiently and effectively within the legal framework of the Inquiries Act 2005 (and related rules). Such a process may very well lead to there being a greater focus on making forward-looking recommendations than establishing responsibilities for each perceived failing which occurred throughout such a complex and multi-faceted process.

 

Further information

Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.

About the author

Sophie Kemp is an experienced public lawyer, advising on major public inquiries, judicial review, and modern slavery and human rights. She has “substantial expertise in major public inquiries and inquests" (Legal 500 UK 2019).

Latest blogs & news

Preparation for Public Inquiries - Webinar Summary

In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.  

Extradition post-Brexit: plus ça change, plus c’est la même chose?

Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.

The Tail Wagging the Dog - Hourly Rates Review 2021

The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the CJC and the Stewart committee which will come into effect on 1st October 2021.
These new rates are a result of the final report of the Civil Justice Council released at the end of July 2021 and the forerunning consultation that took place between 8 January and 31 March 2021.

 

 

What is Next for GDPR in the UK, is Change on the Horizon?

The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174

The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases.  It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.

Regulating working conditions: a ‘one stop shop’ approach to tackling modern slavery

To meet widespread concern about vulnerable workers and working conditions in industries including agriculture, fashion, food and waste disposal, last month (June 2021) the government set up a new watchdog to take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers.

Data Subject Access Requests: The Do’s and Don’ts for Charitable Organisations

A Data Subject Access Request, or DSAR, is any request made by an individual for their own personal data. While they are quick and easy for an individual to make, many long hours and significant resources from your organisation will be needed in order to properly respond.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Safeguarding - 5 golden principles for school leaders

Over the past few weeks there has been a steady stream of disturbing stories alleging sexual harassment and sexual abuse of children attending a variety of schools across the country, not just incidents involving children and adults but in many cases peer-on-peer abuse.

EU Member States’ reluctance to extradite their own nationals to the UK

Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.

A review of the SRA's Upholding Professional Standards Report 2018/19

The SRA introduced a new assessment and early resolution process focusing on upfront engagement and delivering, where possible, earlier outcomes on concerns reported to it. Additionally, in February 2019, the SRA introduced a revised Enforcement Strategy, setting out its approach to enforcement and the factors it will take into account when considering whether regulatory action is needed. 

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.

Extradition post-Brexit: the TCA at a glance

The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.

Business and Human Rights Legislation and the Enforcement Question - A report by Kingsley Napley and Dr Rachel Chambers

Globally, a trend is taking shape towards legislation that asks more from businesses than the reporting obligations of the UK’s Modern Slavery Act, in the area of business and human rights.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility