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The recent act passed in by the UK Parliament EU Withdrawal No.2 Act, that forces the Prime Minister to seek an extension if no deal is agreed or parliament does not agree to no deal, is said by the Prime Minister to bind his hands when negotiating with the European Union.

If Parliament is prorogued (legally for a few days) in order for a Queens Speech and creating a new Parliamentary Session, would the bill mentioned above be an example of a bill that binds the future Parliament which is shown in this answer to not be allowed by the UK's uncodified constitution?

JJJ
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PandaPops
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    The key point is that you can't write a law that says "PS This law cannot be changed." Any future parliament can change any law given a majority in favour of that change. – Jontia Oct 02 '19 at 15:25
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    This phrase is much misunderstood. As Jontia says above, and JJJ in their answer below, all it means is that any Act of Parliament can be repealed and amended by any other Act of Parliament. That's it. – Steve Melnikoff Oct 02 '19 at 15:56

1 Answers1

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would the bill mentioned above be an example of a bill that binds the future Parliament which is shown in this answer to not be allowed by the UK's uncodified constitution?

No, because it does not bind that parliament. Parliament can simply pass new legislation to nullify what's required from the PM in that act. That's unlikely to happen because parliament still supports it (given that they're the same people), but nothing prevents them from changing the law other than the will of parliament itself.

JJJ
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  • Would a bill need to expressly nullify the former, or would voting and passing a no deal Brexit be satisfactory? –  Oct 02 '19 at 15:27
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    @KDog that's a good question, but in practice it's not that interesting. If parliament supports no deal then they can easily deal with this too in whatever way is legally required. The problem is that there's no majority for any deal or no deal that's also acceptable to the EU. There was a majority for not having no deal and that's where this law comes from. – JJJ Oct 02 '19 at 15:45
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    @KDog: https://politics.stackexchange.com/questions/45662/if-the-eu-does-not-offer-an-extension-to-uks-article-50-invocation-is-the-benn – the gods from engineering Oct 02 '19 at 15:45
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    A good example is the Fixed-term Parliaments Act. That requires a 2/3 supermajority to pass the resolution: "That there shall be an early parliamentary general election". That's perfectly lawful. If it also said, this Bill can only be superseded or repealed with a 2/3 majority, that would be unlawful. – richardb Oct 02 '19 at 16:23
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    @KDog There is a legal principle whereby if two Acts are incompatible with one another, then the later one impliedly repeals the earlier one to the extent of the incompatibility, even if it does not expressly do so. However note that in the case of the Act in question, ss 1(2) and 1(3) provide that the PM does not need to ask for an extension if Parliament has agreed to a no-deal Brexit by the 19th October. – JBentley Oct 02 '19 at 23:33
  • @jbentley interesting, no such construct exists in the US. –  Oct 03 '19 at 00:55
  • @KDog Really? I find that surprising. Without such a rule (or something similar), lawyers drafting a bill would either have to check every single Act that has ever preceded it for incompatibilities, or write the bill without having any certainty as to its legal effect. – JBentley Oct 03 '19 at 01:29
  • @@jbentley really, it's one of the reasons for judicial review between circuits –  Oct 03 '19 at 02:08
  • @richardb: I'm not sure that would be unlawful, as Parliament is free to change the rules by which legislation is passed; the Parliament Acts 1911 & 1949 are good examples of this. However, there is nothing to stop a future Parliament from repealing or amending these acts, though it would still have to abide by these rules until then. – Steve Melnikoff Oct 03 '19 at 09:06
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    .. however, implicit repeal does not apply to certain laws, and especially not to law created by EU competences - this is subtle but very important, see Factortame https://en.wikipedia.org/wiki/R_(Factortame_Ltd)_v_Secretary_of_State_for_Transport – pjc50 Oct 03 '19 at 09:45
  • @SteveMelnikoff The point is that if an Act contains a clause requiring a 2/3 majority to repeal it, you can repeal it with a simple majority, so the clause is effectively meaningless and there is no sense in which Parliament would "still have to abide by" it. – JBentley Oct 03 '19 at 12:51
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    @pjc50 Agreed, but it's worth pointing out the mechanism. It isn't that the principle of implicit repeal has been eroded as such, or that EU law somehow supersedes parliamentary sovereignty. It is that Parliament effectively gave permission for EU law to take precedence over UK law via the European Communities Act 1972. The important point is that Parliament can repeal that Act any time it likes notwithstanding that doing so might breach its international treaty obligations. But also, implicit repeal can still apply to EU law in some cases (comment too short to go into details). – JBentley Oct 03 '19 at 13:00
  • @SteveMelnikoff You raise an interesting point.I agree with your comment that Parliament has the power to pass Acts that effectively amend the constitution. I am fairly sure JBentley is also correct in that a such a repeal Act would be held lawful. In between there may be some grey area. – richardb Oct 04 '19 at 05:59