I've mentioned here and here that certain Brexit-pursuing actions as Prime Minister, by Theresa May and Boris Johnson, raised separation of powers concerns quite separate from the policy question of whether/how Brexit should occur - specifically, apparent cases of executive overreach.
A recent legal challenge seeks to use nobile officium to ensure that, if Johnson refuses to send an extension-requesting letter to the EU if compelled to do so on October 19 2019 by the Benn Act, the Court of Session could send one with the same executive authority as if he had. My question concerns whether this would also be a separation of powers violation. Before I explain why I'm asking, though, I'll mention nobile officium is defined as
The noble office or duty of the Court of Session. An equitable jurisdiction in virtue of which the court may, within limits, mitigate the strictness of the law and provide a legal remedy where none exists.
One description of the reasoning behind such a usage is that, because the Benn Act would compel the executive to act a certain way on October 19 (if the October 17-18 European Council summit doesn't secure a Brexit deal), it deprives the Prime Minister of certain executive powers, and those powers may as well be exerted by someone else, such as the above court. In the words of Phil Moorhouse,
The Benn Act removes any executive decision-making from the executive, so, you know, the suggestion is, well, we don't actually need the Prime Minister, then, do we, if he refuses to sign it? I mean, we'd like him to sign it, that would be much tidier; but if he refuses to sign it, well, he's compelled to anyway. It's got nothing to do with him. He doesn't have the power to refuse because Parliament have legislated for it. So in this scenario, can we just put a signature down there that explains the situation and send it off? And hopefully, that's good enough for the EU council.
I don't want my opposition to a no-deal Brexit (well, Brexit in general if I'm honest) to bias me in favour of (ab)uses of the three powers that serve my interests and against those that undercut them; I want to consistently defend the separation of powers as a component of democracy at least as important as elections. So the following thoughts occur to me:
- Does the executive-stymieing effect of the Benn Act make it a case of legislative overreach?
- Even if it doesn't, would a court "impersonating" No. 10 constitute a case of judicial overreach?
I am not a constitutional lawyer (well, I'm not a lawyer at all), so I don't know what theory or precedent, in any nation, has to say about this. But my gut feeling is that negative answers may be available to each of these questions, which would go something like this:
- This Parliament has seen executive overreach that is historically unprecedented, or close to it, and there are genuine reasons to suspect Johnson might try to circumvent Parliament yet again, so the Benn Act may be not so much an offensive legislative overreach as a defence against a predicted executive overreach. One may also argue this as part of Parliamentary sovereignty (I say, with little understanding of the limits on it); this sovereignty was upheld in the Supreme Court's recent voiding of Johnson proroguing Parliament.
- If the Benn Act successfully changes, in a not unconstitutional way, who has this particular power, the judiciary is empowered to manage any executive-legislative dispute this creates, even if this means the power either being transferred again, or a change in who sends the letter on behalf of a Parliament legislating its authorship.
But what do people who know better than me think about it?