The UK Government does not have the right to give notice under Article 50 TEU without authorisation by Parliament

A summary of the recent ruling on exiting the European Union

R (on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos) v The Secretary of State for Exiting the European Union

Executive summary

The High Court held in a carefully argued judgment handed down on 04 November 2016 that the Government does not have the right to give notice under Article 50 TEU without authorisation by Parliament. The decision was made by a panel of three senior judges, including the Lord Chief Justice and the Master of the Rolls. The judgment opens with a strong statement that the Court is concerned only with the law and not with either the merits or demerits of Brexit, or with any question of government policy.

The question

The question put to the court was “whether, as a matter of constitutional law, the Government is entitled to give notice of a decision to leave the European Union (EU) under Article 50 of the Treaty on the European Union (Article 50) by exercise of the Crown’s prerogative powers and without reference to Parliament.” It arises in the context of a judicial review by Gina Miller and Deir dos Santos, who are both UK citizens. Much of the judgment was concerned the European Communities Act 1972 (ECA 1972) and whether the statutory rights of UK citizens arising from this Act can be removed by prerogative power.

The Government’s principal argument

The Government’s principal argument concerned the statutory construction of the ECA 1972. Its counsel suggested that Parliament had intended that, following the result of the referendum, the UK’s continued involvement in the EU should be decided upon solely by the Government. As a result of this assertion, the onus must be on the Claimants to point to where in the ECA 1972 such prerogative powers were removed. Such a removal could have been achieved expressly or by necessary implication. It argued that neither the ECA 1972, nor any other relevant statute, removed these prerogative powers.

The High Court, however, decided that the Government had gone “too far” in its suggestion that statutory construction places such a requirement on the Claimants. In its view, the construction of the ECA 1972 actually leads to the conclusion that prerogative powers were excluded.

The Claimants’ principal argument

A central argument of the Claimants’ concerned the “powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers. The Government cannot change domestic law, including the statutory rights of UK citizens, unless Parliament has given it express, or necessarily implied, authority to this end. The High Court thought that “it would be very surprising indeed” and ultimately “not plausible” that Parliament intended to leave this particular area of domestic law, and the rights arising from the enactment of the ECA 1972, to the sole discretion of the Government. No wording in the ECA 1972 could be identified by government counsel or the Court to contradict this powerful constitutional principle. Therefore the Government “has no prerogative power to effect withdrawal from the relevant Treaties by giving notice under Article 50.”

Constitutional principle

In interpreting statutes, background constitutional principles are highly relevant. Parliament can override them if it so chooses but the stronger the constitutional principle, the stronger the presumption that Parliament did not intend to override it, in which case express language or a clear and necessary implication would be needed. This is an aspect which was “glossed over” by the Government, whose “flawed” argument was that the burden was on the Claimants to point to express language removing the Crown’s prerogative. The Government’s argument gave no value to the “usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers”.

Interpretation of s.2 (1) ECA 1972

The Government argued that, in s.2 (1) of the ECA 1972, the “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties” are conditional on the UK remaining a member of the EU, and that it is bound by these Treaties until the Government exercises its prerogative power to withdraw it from the EU. It is the wording “from time to time created or arising by or under the Treaties” that purportedly implies such a condition. However, consistent with the High Court’s reading of the ECA 1972, the Government was found not to have such prerogative powers, and that “there is nothing in the constitutional background to warrant reading the words in this way.” Rather these words were intended only to refer to EU rights that exist in the Treaties by virtue of the EU legislation passed from time to time.

The loss of statutory rights

The Claimants and the Government agreed that an Article 50 notification would be irrevocable. This is not a point on which commentators agree; but it was necessary to agree on in order to avoid any risk of a reference to the European Court of Justice. Both sides also agreed that it would inevitably have an impact on the statutory rights of UK citizens. These two points are finely interwoven, and are significant concerning the role of Parliament in the process of leaving the EU. The Government believes that it can negotiate a withdrawal treaty, which would then need to be ratified by Parliament under the negative resolution procedure in s.20 of Constitutional Reform and Governance Act 2010. In its view, this exhibits Parliament’s participation in the process. However the judgment found that because the triggering of Article 50 would start a two year period, at the conclusion of which the EU Treaties would no longer be applicable to the UK, the role of Parliament would effectively be nullified. Its consideration of the treaty would be “constrained by the knowledge that if it did not approve ratification of it, however inadequate it might believe the withdrawal agreement to be, the alternative would likely eventually to be complete removal of all rights for the United Kingdom and British citizens.”

The inevitable impact on individual rights is particularly critical given the constitutional significance of the ECA 1972. The judgment discussed the types of right that were raised at the hearing. One category identified is individual rights which have effect in domestic law, but which cannot be replicated in domestic law, such as the right to stand for election to, or vote for a candidate in, the European Parliament. All parties agreed that these rights would inevitably be lost as a result of Brexit. The Court concluded that this alone was sufficient for the Claimant to succeed.

Another class of rights considered is EU rights which could be replicated in domestic law. The example provided was of rights under the Working Time Directive. The High Court did not accept the argument that the possibility that some of these rights may be preserved in domestic legislation was sufficient for the government’s claim. In any events the rights could not be identical because the removal of the ability to seek authoritative rulings from the European Court of Justice would no longer exist.

The final category of rights considered is those enjoyed by British citizens and companies in other Member States and include freedom of movement. The government argued that these are not a product of the ECA 1972, but “the product of the operation of EU law in combination with the domestic law of the Member State.” The High Court did not accept this argument either, stating that whilst it might be true in a “highly formalistic sense,” it was essentially “divorced from reality.” It was Parliament’s clear intention that the ECA 1972 would “provide the foundation for the acquisition by British citizens of rights under EU law,” and that such rights cannot be undone by prerogative powers.

The referendum

The judgment made little comment on the role of referenda in the constitution or its impact on the matters under consideration, simply pointing out that it was merely advisory and that nothing in the Referendum Act 2015 provided a power for the Government to trigger Article 50. It was made abundantly clear that no political opinion was being expressed on the EU referendum and that the court did “not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.”

Conclusion

We consider that the judgment is of fundamental importance to the UK constitution, and is a clear, coherent and well-written statement of the law. The Government has appealed against the ruling, and this appeal will be heard in the Supreme Court from 05 to 08 December 2016, with a decision expected sometime in the New Year.

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