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Citizens cannot take Parliament to court to force it to hold a General Election, even when they believe that Parliament to have lost legitimacy.

Can Parliament be compelled by the courts to not frustrate the 2019 Withdrawal Act Amendment "Exit Day", using the Padfield Principles, and thus be compelled to let the UK leave the EU on October 31st?

The Padfield Principle has been cited as a reason for why The PM could not avoid seeking an extension from the EU.

There are principles that allow the Judiciary to limit Parliamentary Sovereignty:

in the 2005 case of Jackson v Attorney General, Lord Steyn said ” In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. Lord Hope continued “Parliamentary sovereignty is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament … is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”, and added that Parliament should not be able to pass legislation that “is so absurd or so unacceptable that the populace at large refuses to recognise it as law”.

Is there a process by which the courts can be requested to instruct that Parliament (notwithstanding any possible extension) to not frustrate the UK leaving the EU on the 31st, which is what it has voted for previously, and is the law of the land currently link.

i.e.: can citizens take Parliament to court for frustrating the law it made?

[I appreciate this question might be a little tautological, but meh... :p]

  • (1) You link to a question on law.SE. Are you sure that wouldn't be a better place for these questions? (2) Is the second link correct? Was it perhaps intended to go to davidallengreen.com/2019/09/brexit-padfield-and-the-benn-act ? (Although I note that this specific post seems to blow holes in your theory). – Peter Taylor Oct 23 at 6:17
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    Parliament can make new law of the land, and it's legislative authority in that sense isn't really limited. That means if parliament decides in a formal way that the UK isn't exiting at Oct 31, 2019, then the fact that the UK is not exiting at that date becomes the law of the land. – Magisch Oct 23 at 6:42
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    Where is your quote from exactly? Neither links you gave actually contain it. – Fizz Oct 23 at 7:22
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    The European Union (Withdrawal) (No. 2) Act 2019 aka the Benn Act is also "the law of the land" and changes exit day depending on specific circumstances. legislation.gov.uk/ukpga/2019/26 – Lag Oct 23 at 12:57
  • @Fizz The quote is linked to here, it's in the comment on 8th October 2019 at 10:10 by Amrit Lohia. Just wanted to give it an airing here to see what the response was. – Rinky Stingpiece Oct 23 at 13:45
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Can Parliament be compelled by the courts to not frustrate the 2019 Withdrawal Act Amendment "Exit Day", using the Padfield Principles, and thus be compelled to let the UK leave the EU on October 31st?

Absolutely not. Padfield is not applicable here, as that principle refers to the obligations of ministers not to frustrate Acts of Parliament. Instead, the principle that the Courts cannot interfere with proceedings in parliament applies. Indeed, this is the principle which the government attempted to argue meant that the court could not rule on the legality of the prorogation (arguing that it was a proceeding in parliament, and thus they had no standing even to consider it). This means, effectively, that Parliament can make whatever changes to legislation they please to prevent an exit on 31st of October, and the Court can do nothing to prevent that.

This goes right back to the bill of rights incidentally. Article IX:

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

The conventional opinion on exactly what constitutes a "proceeding in parliament" is laid out in Erskine May. It's lengthy, but the effect is moving motions for bills, holding debates and voting on them is all absolutely covered. The courts cannot prevent Parliament from passing legislation to change the date of Brexit in UK law.

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    @RinkyStingpiece The relevant piece of that quote is "Proceedings in Parliament", rather than "Freedom of Speech". The latter is a reference to Parliamentary Privilege. Regarding your second point, there is a very clear and obvious distinction between acting in a way which directly breaks the law, which is what the Prime Minister threatened to do, and complaining about the law as it stands and pushing to change it, which is what the MPs are doing. Unless you suggest they have found some "trick" by which they can keep the UK in the EU without legislative change, in which case please share. – Dan Scally Oct 23 at 13:49
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    @RinkyStingpiece My concluding thought would be; regardless of attempts by MPs to stymie Brexit on 31st October by any means other than legislation, the fact remains that they have through the Benn Act stymied it through legislation, and the court has no standing whatever to oppose that. – Dan Scally Oct 23 at 13:56
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    @RinkyStingpiece he is de facto incorrect. An additional provision of the Benn Act (specifically, section 4) compels the government to use a Statutory Instrument to amend the EU Withdrawal Act 2018 (which is the law Bill Cash is referring to, and which states Exit Day is 31st October 2019) to reflect the new Exit Day as determined by the extension agreed between the UK and the EU. So technically, right at this second, Cash is right. The moment the EU agrees to the extension, the government must (per Padfield) amend the law to change Exit Day and so Cash is de facto wrong. – Dan Scally Oct 23 at 14:14
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    @RinkyStingpiece Read the Benn Act: legislation.gov.uk/ukpga/2019/26. If the European Council does not offer an extension, exit day is 31 October. If the European Council does offer an extension, exit day depends on what happens per section 3 of the Act. Bill Cash was more precise than you implicitly suggest in theyworkforyou.com/debates/?id=2019-10-21b.695.0#g697.4: "The Benn Act 2019 has not yet done anything, other than in respect of the letter" (my emphasis). Although less careful in theyworkforyou.com/debates/?id=2019-10-19a.597.2#g655.9. – Lag Oct 23 at 14:23
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    @Lag Well. He did say the law of the land as it stands at this moment in time, so he's technically correct in what he said, he's just ignoring the fact that the Benn Act compels the government to change that law, and so what the law is at this moment in time is not relevant. – Dan Scally Oct 23 at 14:25
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Can Parliament be compelled by the courts to not frustrate the 2019 > Withdrawal Act Amendment "Exit Day", using the Padfield Principles ...

The Padfield Principle has been cited as a reason for why the PM could not avoid seeking an extension from the EU.

The Padfield principle is that the government (executive) cannot frustrate the will of Parliament. It most certainly can't be reversed to say that Parliament can't frustrate the will of the government.


Is there a process by which the courts can be requested to instruct that Parliament (notwithstanding any possible extension) to not frustrate the UK leaving the EU on the 31st, which is what it has voted for previously, and is the law of the land currently

Note that your link is to secondary legislation, which modifies primary legislation specifically because that primary legislation includes an update mechanism. To wit, the European Union (Withdrawal) Act 2018, section 20, subsections 3 to 5, as amended:

(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).
(4) A Minister of the Crown must by regulations—
   (a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
   (b) amend subsection (2) in consequence of any such amendment.
(5) In subsections (3) and (4) “the Treaties” means the Treaty on European Union and the Treaty on the Functioning of the European Union.

Even if we ignore the principle of the sovereignty of Parliament, since the primary legislation specifically anticipates that the exit day may change we can be highly confident that no court is going to rule that Parliament is acting unconstitutionally in seeking to change it.

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Probably no. The referendum did not include the Oct 31 date. So suing Parliament for not respecting that date probably won't get far, even assuming that suing Parliament for not Brexiting at all had a ("Padfield" by which I think you actually mean Jackson) leg to stand on.

It's even more dubious a suit based on Padfield (or Jackson) could succeed in the present circumstances after Parliament voted for the 2nd reading of the WAB, the subsequent tussle over the schedule between the government and Parliament notwithstanding. Johnson himself said he was "pausing" the WAB by not submitting any other schedule motion besides the one that was rejected by Parliament. Tusk exploited this by saying that he's now recommending the EU approve the UK extension request "Following PM Boris Johnson’s decision to pause the process of ratification of the Withdrawal Agreement". It's easy to see a similar argument made in court, blaming at least in part Johnson's government, if someone sued Parliament for not Brexiting in the present circumstances.

Also, you mention Padfield, but then you quote something (of unclear origin; neither link you gave has the quote) on R (Jackson) v Attorney General which does not seem related to Padfield. Padfield is about limiting the power of ministers (as Dan Scally's answer explains in more depth); Jackson was about limiting the power of Parliament. But quote you gave is not even about the core of Jackson, but about

extrajudicial comments by serving judges that parliamentary sovereignty may not be absolute.

The word "extrajudicial" being of critical importance here. I'm not aware of any actual cases when an act or decision of Parliament was deemed unconstitutional (following Jackson).


Also, Parliament can change its own laws. The Benn act has made the exit date flexible, as (user) Lag correctly points out in a comment.

And you are being inconsistent in your argument(s). One one hand you complain (resorting to Jackson) that the will of the people is frustrated. But then you say (in a comment below) that it is irrelevant that the exit date was not included in the referendum. The contents of the referendum question is not irrelevant if you rely on Jackson commentaries ("will of the people") for your argument.

On the other hand if you want to argue that Parliament is "frustrating itself" by passing subsequent laws changing the date, you are in Wednesbury territory given that parliamentary supremacy allows such changes:

the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent.

  • Yes, I was in a hurry. The Padfield thing has been raised as a matter that compels ministers (and presumably that includes the PM) to not frustrate an Act of Parliament. What I am interested in is when Parliaments appears to frustrate it's own Acts. That the Referendum did not include the date seems irrelevant, the legislation passed by Parliament does. If MPs or even the Speaker are lobbying the EC or the French Government to do a thing that frustrates that Act, it would seem to be something worth challenging somehow; if it is indeed, challengeable. The courts can limit Parliament's actions. – Rinky Stingpiece Oct 23 at 13:39
  • @RinkyStingpiece: maybe not as much as you think: politics.stackexchange.com/questions/46981/… – Fizz Oct 23 at 13:40
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    The exit date was already flexible before the Benn Act - and had already changed twice. – Peter Taylor Oct 23 at 14:33
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    @RinkyStingpiece Parliament is allowed to change its mind and pass Acts that go against earlier Acts, and does so all the time. There’s even the “doctrine of implied repeal”, which says that when Parliament passes a law, any earlier law that it conflicts with is automatically repealed. – Mike Scott Oct 23 at 20:32
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    @RinkyStingpiece Yes, it generally is automatic. This concept is called "implied repeal"; a law blatantly contradicting an earlier law is said to have repealed that earlier law through implication. Only laws considered to have constitutional significance are protected from this; it's that basis on which Miller won the initial case against the Government – Dan Scally Oct 28 at 8:14
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All Parliamentary law supersedes all previous Parliamentary law, and in this case the Benn act is the most recent law.

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    This is not actually true. Courts have ruled that subsequently enacted legislation that conflicts with prior legislation but does not specifically repeal it might be inapplicable. – Dan Scally Oct 23 at 7:17
  • Agreed... it's not a useful answer either - no specifics or links. For a law to be superseded it has to be shown that a newer law specifically undoes it. The Benn Act actually made the Exit Day mandatory, I believe, when prior to that it was discretionary. Apparently EU Law overrides UK law in some cases, due to the Vienna Treaty convention, which may undo the Benn Act, ironically. The Act appears to try to make Parliament specifically instruct the executive as though the legislature was the executive, it looks like it compromises the separation of powers, and may end up being challenged. – Rinky Stingpiece Oct 23 at 13:34
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    @RinkyStingpiece there is effectively no chance of that. If the Prime Minister were going to challenge it, he would have done so already. I begin to suspect you simply disagree with the law and are looking for legal holes in it; I'd suggest you're unlikely to find any of consequence. – Dan Scally Oct 23 at 14:00
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    @RinkyStingpiece: The supremacy of EU law follows from the Treaty on the Functioning of the European Union (TFEU). I don't see how Vienna would be relevant. Either way, TFEU does not describe how the UK must organize its Parliament. – MSalters Oct 23 at 16:12
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    @RinkyStingpiece The symmetry you’re looking for expressly doesn’t exist. Parliament is sovereign, and both the government and the courts are subordinate to it. They aren’t three co-equal institutions. – Mike Scott Oct 23 at 20:35

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