Article 50: A question of principle

This month’s featured blog post comes from Alex Diggens. He is a recent law graduate from UCL who is now currently studying for the Bar where he will specialise in a Commercial chancery set upon completion.

Panic in the court room

Late last week, the High Court issued a judgment that shook up Britain’s political landscape. In R (Gina Miller & Dos Santos) v Secretary of State for Exiting the European, three senior judges – The Lord Chief Justice, The Master of the Rolls and Lord Justice Sales – ruled that it would be unlawful for the Government to activate Article 50 without first getting Parliamentary approval.[1]  With that, the process of Brexit has become an even more difficult task for the government.

Alongside the political fallout, the decision has developed important constitutional principles, reasserting the dominance of Parliamentary Sovereignty and clarifying the boundaries of the powers of the executive. It deserves to be looked at closely.

A question of principle

The case was brought against the Government following the shock referendum result, where 52% of voters voted for Britain to leave the European Union. Multiple parties were joined together in rolled-up proceedings. British citizens Gina Miller and Deir Dos Santos were the first and second claimants, alongside various interested parties and interveners. The parties were led by an assortment of impressive QCs and noted juniors, with Gina Miller represented by Lord Pannick QC, an intellectual titan of the public law bar.

It is important to stress – particularly as some newspapers have wilfully ignored this fact – the apolitical nature of the case, and both parties accepted the justiciability of the issue. Regardless of the alleged motivations of the claimants, the case was argued and decided solely on the constitutional question: which branch of the state has the power to activate Article 50, Parliament or the Executive? The claimants were not contending that Brexit cannot occur, or that it should be stopped, merely that Parliament must legislate for it. Conversely, it was the Government’s position that the power to activate Article 50 fell squarely within the Royal Prerogative (the name given to the residual powers the government exercises in the name of the Monarch).

“It is important to stress – particularly as some newspapers have wilfully ignored this fact – the apolitical nature of the case, and both parties accepted the justiciability of the issue.”

The arguments

The claimants advanced a number of arguments, but the primary argument was that the Royal Prerogative cannot be used to remove citizens’ domestic law rights, a principle going back to the Bill of Rights 1688 and The Case of Proclamations (1610).  Specifically the claimants contended that the rights granted by the European Communities Act 1972 (ECA) would be inevitably lost once Article 50 was activated. The ECA brought the EU treaties into domestic law, and with them created a number of rights for British citizens, such as the ability to stand and vote in European Parliament elections, and the rights of workers under the Working Time Directive, as well as innumerable others. The claimants argued that these rights, brought into force by statute, can only be taken away by statute.

The defendant asserted the settled constitutional principle that the making and unmaking of treaties is a power that resides with the Executive as part of the Royal Prerogative. The defendant argued that to rescind that power requires express words, that nothing in the ECA or subsequent EU statutes rescind that power in relation to the EU Treaties, and therefore that the Government retained the power to take the UK out of the EU.

The Decision and its Impact

In a damning unanimous judgment, the court rejected the Government’s case without even needing to accept the specific submissions of the claimants (see especially paragraphs [94]-[95] of the judgment). The court’s key finding held that:

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“Parliament intended EU rights to have effect in domestic law and…this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative power.”      [94]

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The court held that as a matter of statutory interpretation, the ECA does not reserve to the Crown the power to effect domestic law, including by giving notice under Article 50.

Two significant points can be made regarding the decision.

Firstly, the Government’s legal argument was constrained by political considerations. As accepted in paragraph [10] of the judgment, it was common ground that Article 50 was irreversible once activated. This was politically necessary – the Government could not risk the uncertainty of Brexit being reversible at any point – but made the legal argument more difficult. The claimant relied on the argument that, though Article 50 does not remove rights immediately, because it is irreversible it is the inevitable consequence that it will remove rights. The government was politically forced to accept this, but it was no legal necessity. Lord Kerr, who led the drafting of Article 50, believes it to be reversible, and in argument the Lord Chief Justice wondered aloud whether it was a settled question.

Secondly, there are wider potential ramifications of the case outside of merely the ECA. As commentators have already wondered, the decision may mean that the Executive could not, for instance, withdraw from the European Convention on Human Rights without Parliamentary approval, because it conveys legal rights on citizens (the right for them to take the matter to the court in Strasbourg, analogous to what the Court called a ‘category III’ right). Though the European Union is a sui generis legal institution, it is certainly at least arguable that other agreements, given domestic effect in the UK, have an impact on the legal rights of British citizens, and the decision could significantly impact the powers of the Executive.

What Next?

Despite the resounding victory for the claimants, the case is not over. The Government has announced it intends to appeal the decision (using a leapfrog procedure to skip the Court of Appeal), and the Supreme Court has already set aside a few days in early December to hear the case. The entire 11-member bench of the Supreme Court will hear the case, a first, with a view to judgment out possibly before Christmas.

If the Supreme Court allows the appeal, then this will turn out to be a minor obstacle successfully overcome; politically, it means Theresa May will be free to activate Article 50 ‘by March’, as scheduled. If however the Supreme Court upholds the High Court’s decision, the Government will have no choice but to introduce legislation that must then get through the Houses of Parliament. And then the fun begins.

Alex Diggens

[1] Union [2016] EWHC 2768 (Admin)